Bombay High Court
Sau. Punam W/O Vilas Katekhaye vs The State Of Maharashtra, Through Its ... on 19 April, 2018
Author: B. P. Dharmadhikari
Bench: B.P.Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.1637 OF 2018
1. Sau. Jyoti w/o Khomeshwar Chalphe,
Aged about 40 years,
Occupation : Sarpanch, Umri Ka.,
Bawangaon, Resident of Umri Ka.
Bawangaon, Post Khubala,
Tahsil Saoner, District Nagpur.
2. Shriram s/o Shankarraoji Dhoke,
Aged about 47 years,
Occupation : Sarpanch,
Khairi Dhalgaon, Resident of
Khairi Dhalgaon, Post Khairi
Dhalgaon, Tahsil Saoner,
District Nagpur.
3. Sau. Chhaya w/o Chandrashekhar
Bansinge, Aged about 38 years,
Occupation : Ex-Sarpanch, Kochhi,
Gram Panchayat, Resident of Kochhi
Post Badegaon, Tahsil Saoner,
District Nagpur. ..... PETITIONERS
...V E R S U S...
1. The State of Maharashtra,
Through its Secretary,
Revenue and Forest Department,
Mantralaya, Madame Cama Road,
Mumbai - 400 032.
2. The Divisional Commissioner (Revenue),
Nagpur, Social Welfare Office Road,
Civil Lines, Nagpur.
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3. The Collector, Nagpur,
Collectorate Office,
Civil Lines, Nagpur.
4. The District Environment Impact
Assessment Authority, D.E.I.A.A.
through Collector, Nagpur.
5. The District Environment Appraisal
Committee, (D.E.A.C.), Through
Additional Collector, Mining Incharge,
Collectorate, Civil Lines, Nagpur.
6. The Tahsildar, Saoner,
Tahsil Saoner, District Nagpur.
7. The Tahsildar, Parsheoni,
Tahsil Parsheoni,
District Nagpur.
8. The Tahsildar, Mauda,
Tahsil Mauda,
District Nagpur.
9. The Tahsildar, Kamptee,
Tahsil Kamptee,
District Nagpur.
10. The Groundwater Surveys and
Development Agency,
Through its Deputy Director,
2nd Floor, Telangkhedi Road,
Civil Lines, Nagpur.
11. The District Mining Officer,
Collectorate Office,
Civil Lines, Nagpur.
12. The Tahsildar,
Taluka Narkhed,
District Nagpur.
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13. The Tahsildar,
Taluka Kuhi,
District Nagpur. ... RESPONDENTS
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Shri S. P. Bhandarkar, Advocate for the petitioners.
Shri N. S. Rao, Assistant Government Pleader for the respondents.
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WITH
WRIT PETITION NO.1764 OF 2018
1. Sau. Punam w/o Vilas Katekhaye,
Aged : 53 years, Occ. Nagaradhyaksh,
Nagar Parishad, Pauni, R/o Vitthal
Gujari Ward, Pauni, Tahsil Pauni,
District : Bhandara. ... PETITIONER
...V E R S U S...
1. The State of Maharashtra,
Through its Secretary,
Revenue and Forest Department,
Mantralaya, Madame Cama Road,
Mumbai - 400 032.
2. The Divisional Commissioner (Revenue),
Nagpur, Social Welfare Office Road,
Civil Lines, Nagpur.
3. The Collector, Bhandara,
Collectorate Office, Civil Lines,
Trimurti Chowk, National Highway-6,
Bhandara.
4. The District Environment Impact
Assessment Authority, D.E.I.A.A.,
Through Collector, Nagpur.
5. The District Environment Appraisal
Committee, (D.E.A.C.), Through
Additional Collector, Mining Incharge,
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Collectorate, Civil Lines, Nagpur.
6. The Tahsildar, Lakhandur,
Tahsil Lakhandur,
District Bhandara.
7. The Tahsildar, Lakhani,
Tahsil Lakhani,
District Bhandara.
8. The Tahsildar, Mohadi,
Tahsil Mohadi,
District Bhandara.
9. The Tahsildar, Pauni,
Tahsil Pauni,
District Bhandara.
10. The Tahsildar, Sakoli,
Tahsil Sakoli,
District Bhandara.
11. The Tahsildar, Tumsar,
Tahsil Tumsar,
District Bhandara.
12. The Groundwater Surveys and
Development Agency,
Through its Deputy Director,
2nd Floor, Telangkhedi Road,
Civil Lines, Nagpur.
13. The District Mining Officer,
Collectorate Office, Civil Line,
Trimurti Chowk, National Highway-6,
Bhandara.
14. Shri Jitendra s/o Ganesh Mhaske,
Aged 33 years, Occ : Business,
R/o. Ward No.5, Santaji Nagar,
Kandri, Tehsil Parsioni,
District Nagpur.
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15. M/s. Patel Suppliers,
Through its Proprietor,
Awaish Numan Patel,
Aged about 29 years,
Occ : Business,
R/o Ansari Ward, Bhandara.
16. Kinza Group,
Through its Proprietor,
Asad Numan Patel,
Aged 30 years, Occ : Business,
R/o. Jamnalal Bajaj Ward,
Bhandara.
17. Lokram Mitaram Thakre,
Aged 30 years, Occ: Business,
R/o. Kumbhali, Tehsil Sakoli,
District Bhandara.
18. Narendra S/o. Pundlik Nagrale,
Aged 32 years, Occ : Business,
R/o. Bhisi, Tehsil Chimur,
District Chandrapur.
19. M/s. Bhandara Traders,
Through its Proprietor,
Abdul Siddique Patel,
Aged 59 years, Occ : Business,
R/o. Jamnalal Bajaj Ward,
Bhandara. ... RESPONDENTS
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Shri S. P. Bhandarkar, Advocate for the petitioner.
Shri N. S. Rao, Assistant Government Pleader for the respondent Nos.1 to
13.
Shri S. V. Kukday, Advocate for respondent Nos.14 to 19.
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WITH
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WRIT PETITION NO.1818 OF 2018
1. Sou. Sapna W/o Krishnakumar
Suryawanshi, Aged about 29 years,
Occupation - Household (Sarpanch
of Gram Panchayat Dangorali)
Resident of Dangorali, Post Dasgaon
Khurd, Tahsil and Dist. Gondia.
2. Dayaram S/o Tukaram Agase,
Aged about 55 years, Occupation
Agriculturist, (Sarpanch of village
Murdada) Resident of Murdada,
Tah. & Dist. Gondia. ... PETITIONERS
...V E R S U S...
1. State of Maharashtra, through
its Secretary, Revenue and
Forest Department, Mantralaya,
Mumbai - 32.
2. Divisional Commissioner,
Nagpur Division, Nagpur.
3. The Collector, Gondia.
4. District Environment Impact
Assessment Authority (DEIAA)
through Collector, Gondia.
5. District Environment Appraisal
Committee (DEAC) through
Additional Collectors Mining
In-charge in the Office of
Collectorate, Gondia.
6. Tahsildar, Gondia.
7. Tahsildar, Tirora,
Dist. Gondia.
8. Tahsildar, Sadak Arjuni,
District Gondia.
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9. Tahsildar, Amgaon,
Dist. Gondia.
10. Tahsildar, Arjuni-Mor,
District Gondia.
11. Ground Water Survey and
Development Agency, through
its Deputy Director, 2nd Floor,
Telangkhedi Road, Civil Lines,
Nagpur.
12. District Mining Officer in the
Office of Collectorate, Gondia.
13. Mahesh Chunnilal Gupta
R/o 62, Mal Road, Kamptee,
Tq. Kamptee, Distt. Nagpur.
14. M/s. Patel Suppliers
Through its Proprietor -
Avinash Numan Patel,
R/o. Muslim Library Square,
Bhandara.
15. Lokram Meetram Thakre,
R/o Kumbhali, Tq. Sakoli,
Distt. Bhandara. ... RESPONDENTS
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Shri M. G. Bhangde, Senior Counsel with Shri M.P. Khajanchi and Shri
M.I.Dhatrak, Advocates for the petitioners.
Shri N. S. Rao, Assistant Government Pleader for the respondent Nos.1 to
12.
Shri V. S. Kukday, Advocate for respondent Nos.13 to 15.
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CORAM:- B.P.DHARMADHIKARI &
ARUN D. UPADHYE, JJ.
DATED : 19/04/2018.
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ORAL JUDGMENT : (PER B. P. DHARMADHIKARI, J.)
1. In these three writ petitions arising out of Nagpur, Bhandara and Gondia Districts challenge by petitioners is to notices for auction published on 5th March, 2018. In Writ Petition No.1637/2018, 25 sand ghats at Nagpur were being auctioned and in Writ Petition No.1764/2018 about 21 sand ghats at Bhandara are being auctioned and in Writ Petition No.1818/2018 challenged the auction of 18 sand ghats in Gondia District.
2. This Court has, in these matters, while issuing notices, permitted auction process to go on, restrained respondents - State and respective Collectors from issuing any work orders or allotment orders.
3. The challenge is being considered in the light of earlier Judgment of this Court dated 02/02/2018 in Writ Petition No.6147/2017.
4. Looking to the nature of controversy and at the request of parties, we have heard them finally by issuing Rule and making it returnable forthwith.
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5. Shri Bhangde, learned senior counsel with Shri Khajanchi, learned counsel in Writ Petition No.1818/2018 and Shri Bhandarkar, learned counsel in other two matters have assisted the Court on behalf of petitioners. Shri Rao, learned A.G.P. and Shri Kukday, learned counsel have opposed the arguments.
6. Though lengthy arguments have been advanced, considering the nature of controversy and orders warranted, we find it proper to narrate the contentions of petitioners jointly as under :-
a) The impact of Judgment dated 02/02/2018 in Writ Petition No.6147/2017 has been lost site of.
b) After considering the previous policies and orders of Hon'ble Apex Court as also this Court, the State Government has come up with more comprehensive and full-proof policy on 03/01/2018. The impugned action is not in furtherance of said policy.
c) The mining plan, for the purposes, though shows to be approved, it appears to be too casual and mechanical as mining plans in such large number that too after 02/02/2018, could not have been prepared and evaluated in short time of about one month.
d) The rainfall in the region was much below average and hence, fresh survey of sand ghats ought to have been undertaken after 02/02/2018, that too as per new policy dated 03/01/2018. That exercise has not been undertaken.::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 00:22:45 :::
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e) Papers produced before this Court to demonstrate
compliance with and fresh surveys do not inspire confidence as the same are not signed by all officers who must remain present on spot at the time of survey.
f) Survey reports are mostly a copy paste affair of alleged earlier surveys which are not available after 02/02/2018 judgment.
g) The Gram Sabhas have been given a decisive role in new policy and resolutions of those Gram Sabhas after 03.01.2018 / 02.02.2018 giving no objection for putting sand ghats to auction do not exist.
h) It is also claimed that allegations of mala fides made against petitioners are without any merit as no material in support thereof has been made available.
i) In absence of proper mining plan and replenishment measures, excavation of sand from sand ghats, is not permissible.
7. Learned AGP has opposed the above contentions. He submits that a new policy evolved on 03/01/2018 clearly reveals that it cannot apply in year 2017-2018 that for period from 1st October, 2017 till 30th September, 2018. Auction being held now therefore has to be & is in fact as per earlier policy evolved on 12th March, 2013.
8. As sand ghats have necessary environmental clearance, the issues like absence of survey or defective survey or then absence of ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 00:22:45 ::: Judgment wp1637.18 + 2 11 mining plan become insignificant.
9. Respective Counsel for the respondents add if petitioners are aggrieved by environmental clearance, they have to challenge the same by filing appropriate proceeding before the National Green Tribunal.
10. Our attention is also invited to pleadings in reply to urge that the petitioners, particularly husband of one of the petitioners namely; Sau. Punam Katekhaye in Writ Petition No.1764/2018 ie one Vilas Katekhaye is himself in sand business and one of the partners in a respondent-firm in Writ Petition No.1487/2018. These partners along with Vilas Katekhaye are doing business in sand in Bhandara District. Petition has been filed through wife Punam to further said business and to create monopoly like situation in favour of said firm.
11. Scanty rainfall in the year is denied. Our attention is invited to data placed on record to urge that the rainfall in some cases has been above 79% while in some cases, it was about 60%. Submission is in the situation, ground of inadequate rainfall is not germane in the light of material made available on record.
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12. In Writ Petition No.1637/2018, it is pointed out that from Saoner Tahsil, 13 sand ghats are put to auction and out of it, 4 sand ghats were earlier advertised. From Kamptee, 9 sand ghats are put to auction and in earlier, 2 sand ghats were already advertised. From Narkhed, 2 sand ghats are now advertised while earlier, only one was to be auctioned. From Kuhi, one sand ghat already advertised earlier is again sought to be auctioned.
13. Similar submissions are made in relation to other two petitions.
14. It is pointed out that the policy decision dated 03/01/2018 is not relevant and therefore, earlier resolutions of Gram Panchayats favoring the first auction and their role as envisaged in Government Resolution dated 12/03/2013 needs to be looked into. It is submitted that none of the Gram Panchayats have approached this Court opposing the present move or fresh auctions.
15. Lastly, without prejudice to submissions made above, learned AGP has contended that petitioners do not possess necessary locus to approach this Court in the matter. Their status as Ex-Sarpanch or Sarpanch does not enable them to challenge the auction which are ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 00:22:45 ::: Judgment wp1637.18 + 2 13 taking place as per law and are necessary in larger public interest. It is submitted that mining of sand and auction at the earliest is utmost necessary to curb illegal mining or then its illegal import from neighbouring States.
16. Support is being taken from Judgment of Hon'ble Apex Court in the case of State of Orissa Vrs. Ram Chandra Dev, reported at AIR 1964 Supreme Court 685 and in the case of K.C. Pazhanimala and others Vrs. State of Kerala and others, reported at AIR 1969 Kerala Full Bench 154 and in the case of Deepak Kumar and others Vrs. State of Haryana and others, reported at (2012) 4 SCC 629.
17. Shri Kukday, learned counsel opposing Writ Petition No.1764/2018 and Writ Petition No.1818/2018 has adopted arguments of learned A.G.P. He has taken us through time frame / schedule prescribed in the policy decision dated 03/01/2018 to urge that the same demonstrates that it cannot operate before 30th September, 2018.
18. He also submits that respondent Nos.14 to 19 in Writ Petition No.1764/2018 (Bhandara matter) and respondent Nos.13 to 15 in Writ Petition No.1818/2018 (Gondia matter) are successful bidders in auction process and when certain ghats are already functioning after said ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 00:22:45 ::: Judgment wp1637.18 + 2 14 auction, it would be unjust to stop these respondents from operating.
19. These arguments were advanced before us between 12/04/2018 to 16/04/2018. On 17/04/2018, learned AGP has in order to satisfy certain doubts aied during hearing made available the original survey reports and some documents in relation to auction process in Nagpur District. After some arguments on 17th April, 2018 by separate order, we have retained those documents on record. Those documents have been made available to demonstrate that necessary compliances were already complete and thereafter, only auction process was undertaken. Learned A.G.P. added that in Bhandara District from 01/10/2017, about 30 sand ghats are already operating and they will continue to operate till 30th September, 2018. The present challenge is in relation to 21 new sand ghats.
20. Insofar as 18 sand ghats in Gondia District are concerned, he submits that all 18 sand ghats surveyed but were not put to auction up to 01/07/2017 and there is no fresh survey in 2018. He has submitted that thus, 25 sand ghats for Nagpur District, 21 sand ghats for Bhandara District and 18 sand ghats for Gondia District i.e. total 64 sand ghats form subject matter of present controversy.
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21. Shri Bhandarkar, learned counsel for petitioners in Writ Petition No.1637/2018 has invited our attention to Civil Application No.868/2018 to urge that as more sand ghats are sought to be added to the controversy by seeking leave to amend.
22. Shri Rao, learned A.G.P. has strongly opposed the same. According to him, at the stage of advancing of hearing, addition of these sand ghats will put the clock back, thereby delay in adjudication of controversy. He submits that petitioners so feel, they can bring that controversy in fresh writ petition before this Court.
23. Arguments thereafter, have been advanced on authenticity of the survey reports produced before this Court by Shri Bhandarkar, learned counsel and Shri Bhangde, learned senior counsel and Shri Rao, learned A.G.P. The arguments mostly attempt to bring on record the apparent errors in original records or then absence thereof as attempted by learned A.G.P.
24. On locus, respective counsel for petitioners submit that the Collector, Nagpur had filed a caveat against petitioner No.3 in Writ Petition No.1673/2018 and as such, challenge to her locus or status is by way of afterthought. Shri Bhandarkar, learned counsel and Shri Bhangde, ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 00:22:45 ::: Judgment wp1637.18 + 2 16 learned senior counsel submit that the petitioners were occupying responsible posts and, when it is a question of environment and ecology, they have every right to knock the doors of this Court pointing out highhandedness & possible damage to the environment.
25. Shri Bhangde, learned senior counsel submits that every Government has to follow policy and its step in deviation therefrom can be brought to the notice of this Court by any citizen. He is seeking support from Judgment of Hon'ble Apex Court in the case of Ram Tawakya Singh Vrs. State of Bihar and others, reported at (2013) 16 SCC 206. He has also pointed out a Government Resolution dated 20th March, 2018 passed by the Gram Sabha of Dangorali opposing the auction of sand ghat. He submits that in the situation, the allegations of ulterior motive against petitioners clearly show the wrong attitude & notions entertained by respondents. The so called ulterior motive has been denied by filing appropriate counter and despite that, respondents have not produced any material on record to substantiate their allegations against the petitioners.
26. Shri Bhandarkar, learned counsel and Shri Bhangde, learned senior counsel also invited our attention to reply affidavit filed by respondents to urge that their defence is auctions are being conducted as ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 00:22:45 ::: Judgment wp1637.18 + 2 17 per new policy dated 03/01/2018. To demonstrate how new policy supersedes earlier policy dated 12/03/2013, they have taken us relevant clauses.
27. Lastly, they submit that petitioners are not challenging before this Court any specific mining plan or environmental clearance. They want respondents to stick to the conditions mentioned therein, as per new policy and undertake replenishment study.
28. We have while narrating rival contentions, taken note of specific arguments advanced by learned A.G.P. as also by Shri Kukday, learned counsel. They have urged that policy decision dated 03/01/2018 cannot spring to life and regulate any auction conducted before 30th September, 2018. In Writ Petition No.1818/2018, the Collector, Gondia and other officers of respondents have in para 19 of their reply come up with specific stand that "new sand excavation policy dated 03/01/2018 in details and District Administration has followed this policy in present auction". In the light of this specific averments, it is difficult for us to accept the contentions that respondents have undertaken auction process in terms of earlier policy decision dated 12/03/2013.
29. Very same sentence as it is appears in reply affidavits at ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 00:22:45 ::: Judgment wp1637.18 + 2 18 the end of para 20 in Writ Petition No.1637/2018 (Nagpur District) and para 17 in Writ Petition No.1764/2018 (Bhandara District).
30. The perusal of policy dated 03/01/2018 is essential. Said policy decision carries reference to orders of Hon'ble Apex Court dated 27/02/2012, orders of Bombay High Court in P.I.L. and various earlier policy decisions of State Government including Chapter V of Maharashtra Minor Mineral Extraction (Development and Regulation) Rules, 2013. It also mentions at the end, notification dated 15/01/2016 issued by the Central Government Cabinet. In its preamble, in para 4, there is reference again to this notification dated 15/01/2016 by which Central Government obliged formation of Committees at District level for environmental clearance, for preparation of survey reports and for regulation of excavation of sand from river bed. It specifically mentions in clause 5 that some lacunae and deficiencies were noticed in policy decision dated 12/03/2013 and hence, to curb it, a more comprehensive and effective policy decision had become necessary. In para 2 Clause A-2, it stipulates about various stages through which, each sand ghat must come before it is put to auction.
31. Insofar as sand ghats which were earlier proposed are concerned, procedure therefor is stipulated in para 2 clause A-3 (9) and ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 00:22:45 ::: Judgment wp1637.18 + 2 19 (10), it is mentioned that for sand ghats which were put to auction after following prescribed procedure in previous year and could not be disposed of, there is no need of fresh survey and demarcation. Clause 10 stipulates that if auction is of sand ghats newly demarcated and not to put to auction in previous year, No Objection Certificate of Gram Sabha, environmental clearance, is necessary and approval to upset price must be obtained from Divisional Commissioner by the end of August, the auction process must be completed by September, and by 1st October, possession of sand ghat must be given to successful auction purchaser.
32. Para 22 of this new policy decision lays down that earlier Government Resolutions, Circulars and Memorandums issued by the State Government on the subject of disposal of sand ghats / sand, if found inconsistent with the new policy decision (dated 03/01/2018), provisions in new policy decision must be held conclusive and accordingly, auction process should be completed. Shri Kukday, learned counsel opposing Writ Petitions contends that use of time frame / schedule prescribed in the policy decision dated 03/01/2018 to urge that the same cannot operate before 30th September, 2018 also brings on record its material inconsistency with old policy and hence, supremacy of the new policy.
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33. Therefore, this arrangement in new policy decision dated 03.01.2018, shows that it supersedes the earlier decisions including the decision dated 12.03.2017. Effort made by learned A.G.P. and Shri Kukday, learned counsel, indirectly brings on record the omission or failure on the part of respondents to comply with the measures stipulated on 03.01.2018. Hence, while advancing arguments orally, respondent State Government and its officers have taken a stand inconsistent with the stand in writing.
34. At this stage, we find it appropriate to refer to the orders passed by the Hon'ble Supreme Court dated 16.11.2017 in Special Leave Petition No.(Civil) 34811/2013. There in the case of State of Rajasthan .vrs. Nature Club of Rajasthan, the Hon'ble Supreme Court felt horrified after the state of affairs with regard to Bajri and Sand Mining/Quarrying was put before it. It found that this mining /quarrying was going on for several years without any scientific replenishment study. It therefore, restrained all 82 mining lease/quarry holders from carrying out mining of stone and bajri unless all scientific replenishment study was completed, and thereafter the matter was directed to be fully and dispassionately considered by the Ministry of Environment, Forest and Climate Change. The Hon'ble Supreme Court also ordered that its directions would come into force immediately. ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 00:22:45 :::
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35. Perusal of the judgment dated 02.02.2018 in Writ Petition Nos. 6147 and 6163 of 2017, delivered at Nagpur by this Court shows that there the Collector, Nagpur and his subordinates including the District Mining Officer were party respondents. In paragraph no.8, Division Bench of this Court has found that when government policy made it obligatory for District Mining Officer and Tahsildar [concerned] to conduct a survey, it was not permissible for respondents to give a go-bye to the policy and conduct the survey with the help of Officers of Ground Water Survey and Development Agency and Talathi. It found that the survey was not conducted in accordance with the guidelines laid down in the policy framed vide circular dated 12.03.2013. It has concluded that respondents have hurriedly and for reasons best known to them, auctioned the sand ghats by auction notice dated 07.09.2017. It has further found that though at that juncture environmental clearance was issued on 06.09.2017, the same was set aside by Pune Bench of National Green Tribunal and hence, on that date there was no Environmental Clearance Certificate for auction of 21 sand ghats.
36. It is this history which eclipses the challenge in Writ Petition No.1637/2018.
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37. In all Writ Petitions, petitioners have attempted to show that the survey reports produced for perusal of this Court do not carry signatures of all persons who must remain present at the time of survey or, then though signature of Tahsildar may appear on some reports, his physical presence at the time of survey has not been recorded on spot. We have already reproduced above the contentions in short i.e. previous survey reports on the basis of which auctions were conducted in September, 2017, have been again used in the present matter. Here it needs to be noted that in Writ Petition No. 1818/2018 (Gondia District), there is no fresh survey after 12.01.2018.
38. In the light of this specific contention and query made by this Court, learned A.G.P. appearing on behalf of the State Government could make available for perusal of this Court some survey reports of Gondia and Nagpur. Survey reports of Gondia are in relation to 17 sand ghats. Only sand ghats at Soundad-2 in Sadak Arjuni Tahsil has been found unfit or unsuitable, while all other sand ghats were found fit for auction. Perusal of the original survey report of Soundad-2 shows that it was re- surveyed on 26.09.2017. Sand was found upto two meters deep in river bed and the Well of Municipal Council to supply drinking water was at a distance of 120 meters. It is therefore, remarked that the sand ghat was not fit for sand excavation. The officers present, as recorded against ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 00:22:45 ::: Judgment wp1637.18 + 2 23 Clause 11 are Mining Officer and G.S.D.A. Officer. The report is signed by Tahsildar, Sadak Arjuni, as also Senior Geologist of G.S.D.A., though their presence on spot is not established. It is not signed by Junior Geologist G.S.D.A. whose presence has been recorded in Clause 11. It is signed by the Mining Officer. Thus, only one officer present on spot at the time of survey has signed this report. This holds good even in relation to sand ghat at Mouza Birsola, Pujaritola, Murdada, Mahalgaon, Dangorli, Biroli, Chanduri Kh., Kawlewada, Arjuni, Kohmara, Bamni Sadak, Banathar, Girutola, Wadegaon.
39. In so far as sand ghats at Pipariya, Mundipar, Pipri-2 and Nansari (Dumohan Ghat), are concerned, in addition to above three signatures, there is also signature of Junior Geologist G.S.D.A. Same person has signed on 25.09.2017 for Pipari and Mundipar. However, his signature is absent on other survey reports which records show as surveyed on very same date by him. The survey reports for Pipri-2 and Nansari (Dumohan Ghat), are signed by Junior Geologist C.S. Kumbhare.
40. We need not go into more niceties of these survey reports which have been produced before us as part of letter dated 15.11.2017, sent by the Office of the Senior Geologist, Gondia to the office of Additional Collector, Gondia. This survey reports mostly do not have ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 00:22:45 ::: Judgment wp1637.18 + 2 24 any inward or outward number. Only survey report signed by Shri C.S. Kumbhare, carry outward number. Even there the outward number of both the survey reports is same.
41. In relation to Nagpur, a separate bunch of sand ghat reports is made available for our perusal, as original survey reports. Survey carried out in the month of February, 2018 of the ghat is at the top followed by survey for very same ghat conducted in the month of March, 2017. Again only in order to avoid prolixity, we are not commenting upon each and every survey report. Very first survey report is for Isapur-A. It is dated 21.02.2018 and it bears signature in original of all three persons / officers shown to be present in Clause 13. It is also signed by Senior Geologist. Earlier survey report in relation to this ghat is dated 23.05.2017. That survey report in clause 12 shows presence of only Assistant Geologist Smt. I.P. Ghodeswar. The report however, is not signed by her. It is not signed by any body else and there is no mention of attendance of Mining Officer or Environment Officer. This report uses ink [dot/ball pen], to fill in the blanks. In survey dated 22.03.2018, very same data has been inserted in print.. In survey report dated 21.02.2018, clause nos. 6 and 7 which are mutually inconsistent, have been both retained. In survey report dated 23.05.2017, clause no.7 has been marked with "X", while clause No.6 has been marked as "" Thus ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 00:22:45 ::: Judgment wp1637.18 + 2 25 clause 7 was canceled while clause 6 was then retained. If this shows any application of mind, that application of mind is not seen in survey conducted on 21.02.2018.
42. Respondents can substantiate their defence by producing the records maintained in regular course of business with chronological entries. As taken note of in our order dated 17.04.2018, a Register with word "Inspiration" printed on it and bearing a certificate signed by Senior Geologist, has been made available for our perusal. There at page no.3, entries of survey reports of surveys conducted by Smt. Ghodeswar on 20.05.2017, 23.05.2017, 29.05.2017, 30.05.2017 etc., also appear. Below these dates, different dates in the month of October 2017 are mentioned by using 'pencil'. The survey reports, if any, having those dates mentioned in pencil are not made available and perhaps are not in existence as noted by this Court in its judgment dated 02.02.2018. Thereafter, at page no.5, in very same Register, survey reports submitted by Smt. H.A. Joshi, appear. At page no.8, there are survey reports submitted by Smt. Barahate. At page no.10, there are 5 survey reports by Smt. Barahate. Rest of the page no.10 is blank.
43. At page no.11, again there are some survey reports submitted by Smt. Ghodeswar. Dates in survey reports mentioned there are ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 00:22:45 ::: Judgment wp1637.18 + 2 26 19.05.2017, 20.05.2017 etc. upto 23.05.2017. Total 13 survey reports are mentioned on page no.11. It is also mentioned that last report was sent to the office of the Collector, vide O.W.No. 728/2017 on 29.05.2017. Thus, all these survey reports are prior to 29.05.2017. Survey report of Isapur-A appears at Sr.No.6 in this register at page no.11. If these survey reports were available before 23.05.2017 or before 29.05.2017, we fail to understand why the same could not be added in continuation chronologically at page nos. 5 or 4 of the register before entering survey reports of Smt. Joshi. The survey reports at page no.11 therefore, appears to be inserted or added in the register at a later point of time. We are constrained to say so, because at page no.11 below column no.7, in all entries there is overwriting. That column deals with depth of sand in river bed. It appears that at Sr.No.1 while mentioning sand ghat at Rohna in Saoner Tahsil, depth of sand was mentioned as 0.50, and it has been corrected to read as 2.50. In so far as Isapur is concerned, the earlier figure may be either "0" or "1" meter, and it has been corrected to read 3 meters. In survey reports looked into by us, depth of sand is mentioned as 3 meters.
44. We need not comment more on this survey report or this register, because we are not concerned with the correctness of the survey report or then correctness of the entry in the register in present matters. ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 00:22:45 :::
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45. Survey report for Khapapeth sand ghat in Saoner Taluq
appears at Sr.No.3 at page no.11. This survey report dated 20.05.2017, does not mention name of Mining Officer or Environment Officer. It mentions name of only I.P. Ghodeswar, as Assistant Geologist, but, then it is not signed by her also. It is signed only by Senior Geologist. Printed survey report dated 27.02.2018, mentions names of District Mining Officer, Tahsildar and Smt. Ghodeswar, as also Naib Tahsildar. It does not mention name of any officer from G.S.D.A. However, this report is signed by an officer of G.S.D.A. also. The same holds good in relation to sand ghat at Bhusewadi-A.
46. Last document in the bunch given to this Court is in relation to Mouza Rohana in Saoner Taluq. We have already made reference to it above. Here again though there is no mention of presence or name of officer of G.S.D.A., at the time of survey, his signature appears on report of survey conducted on 22.02.2018.
47. The survey reports of alleged survey conducted in February, 2018, more precisely after 02.02.2018, do not show striking out of clauses which are not applicable. Both the clauses namely clause no.6 and clause no.7 are retained in all survey reports. During arguments, ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 00:22:45 ::: Judgment wp1637.18 + 2 28 attention of learned A.G.P. was invited to this factor, and after obtaining assistance from a responsible officer of respondent present before the Court, he submitted that only one of these clauses is attracted and a sand ghat cannot be simultaneously regulated by both, as both clauses 6 and 7 are mutually inconsistent. We therefore, find that inspection in February, 2018 on the basis of which present auction in Nagpur District are scheduled again fail to meet the standards expected to show transparency and fail to inspire confidence of the Court.
48. The comments above hold good to discard the register certified by the Senior Geologist and entries made therein. Over writings galore and there are pencil entries at several places, in survey reports of Smt. H.A. Joshi, register shows entries in red ink. Survey reports entries of R.V. Hatwar and details thereof figure at page nos. 5, 6 and 7. At page no.8 instead of pencil entires, entries have been made in green ink. At page no.9 in red ink there is reference to Writ Petition Nos. 6147 and 6163, and order dated 02.02.2018. It is mentioned that Shri R.V. Hatwar, Junior Geologist has carried out this survey as per said judgment. Thus, at the time of re-survey in February, 2018 judgment of this Court dated 02.02.2018 was very much within the knowledge of this Authority.
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49. At page no.12 i.e. on reverse of page no.11, Senior Geologist has mentioned Taluka wise details after surveys holding that 51 sand ghats could have been put to auction, while another 51 were not suitable.
50. This brings us to a file from which survey reports of Nagpur District are claimed to have been removed to prepare a bunch for our convenience. That file is - File No.60 of the year 2017. It mentions Desk No.21, Table No.3. File has been opened on 21.03.2017 and it is handled by one M.S. Mubitkar. The file is maintained in two parts. On left hand side, is "notes side", while on right hand side, it is "correspondence side". Neither note side nor correspondence side carry any page numbers. There is no reference anywhere on either notes side or the correspondence side to the mode and manner or chronology in which survey reports submitted by Smt. Ghodeswar or other officers mentioned supra, have been received.
51. One more bound register has been produced before us. It carries some entries in handwriting where few mobile numbers are also mentioned in it. It does not have page numbers, but, then at page no.3 date 16.05.2016 appears. Our attention was invited to an entry of ghat Rohna, Taluq Parshioni. That entry appears to be carrying year 2016-17. It is without any date. Later on it becomes clear that the said entry is in ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 00:22:45 ::: Judgment wp1637.18 + 2 30 relation to sand ghat at Parshioni Tahsil and the Court query was in relation to sand ghat of Rohna in Saoner Tahsil. Few pages after this entry, an entry of date 23.02.2018 appears, and there reference is to ghat Pardi, Taluq Parshioni. Against this entry there is mention of designation of District Mining Officer. After that there is one signature dated 23.06.2018, and above it in very same ink (black ink), designation Kotwal appears. Above this signature and designation, name of J.P. Meshram, Talathi and most probably his signature appears. This rough register therefore, again cannot assist the Court. Effort on the basis of this rough register was to convince the court that typed entries and survey reports in February, 2018 have been made on the basis of data collected on spot and recorded in this register. The register made available to this Court does not support this argument.
52. Last document made available to this court is a note pad with word "Rajiv" upon it. There again rough entries not relevant in this matter, have been taken on first three pages. Thereafter, on successive separate 21 pages, there are 11 receipts. These receipts are dated 23.02.2018, 24.02.2018 only. Each receipt mentions that a particular (named) sand ghat therein was surveyed on that date. It is signed by Talathi, Kotwal, Circle Officer, Junior Geologist and District Mining Officer. Technical details , if any collected on site by there officers do not ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 00:22:45 ::: Judgment wp1637.18 + 2 31 appear in any of these receipts. If survey report itself is to be filled in on spot, why obtaining of such separate receipts became necessary, cannot be understood.
53. This discussion therefore, shows that the survey reports on the basis of which the office of the Collector at Nagpur has proceeded to auction the sand ghats, cannot be accepted. Mandate of policy decision dated 03.01.2018, reveals that before obtaining Environmental Clearance, a mining plan must be prepared. Similarly, before demarcating and finalizing the sand ghat, study of river flow, sedimentation and deposition is must. No such study has been pointed out to this Court. The study ought to have been after 02.02.2018, and most probably at the time of survey conducted allegedly in February, 2018. Survey reports even if, accepted to be correct or true, it does not show any such study. This becomes more important because of order of the Hon'ble Supreme Court mentioned supra, mandating replenishment study. There is no such study in these writ petitions.
54. Perusal of time schedule given in paragraph no.2 of policy dated 03.01.2018 reveals that the State Government has given a reasonable time to the office of the Tahsildar to draw report after personal inspection and to submit it to the Sub Divisional Officer. Sub ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 00:22:45 ::: Judgment wp1637.18 + 2 32 Divisional Officer is then supposed to counter check at random 25% of such sand ghats. District Mining Officer in turn is thereafter expected to check 10% of the sand ghats. These checks and measures are violated and therefore, objects behind it are defeated in present matter.
55. After these filters which are safeguards, list of sand ghats is to be prepared by 7th May, and then the Senior Geologist of G.S.D.A. and District Mining Officer as also the Tahsildar are obliged jointly to examine the impact of sand excavation on the water sources in the area and to submit a report by 7th June. The New Policy mandates video shooting/recording at the time of this survey. Again this has not been done in present matter. Obviously, further measures and stages are also not followed here.
56. Due to this position, we need not dilate more upon facts or challenges. Under old policy dated 12.03.2013, role of Gram Sabha was not that important. However, through paragraph no.3 of the new policy, the said exercise and NOC of Gram Sabha has been made compulsory. In the light of discussion above, when paragraph no.22 of this policy obliges respondents to bring on record compliance with its terms and conditions, the above violations are material. All this becomes more material and decisive because of order dated 02.02.2018, where while setting aside ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 00:22:45 ::: Judgment wp1637.18 + 2 33 the earlier auction process, the Division Bench of this Court has recorded a finding of non compliance even with old policy dated 12.03.2013.
57. We therefore, find the decision or steps to auction taken after 02.02.2018, unsustainable and that the respondents have failed to honour confidence reposed on them as Trustees of Public Property by new policy dated 03.01.2018.
58. As no such survey reports or material has been made available in relation to auction process at Bhandara, we can safely draw adverse inference. In so far as Gondia District is concerned, it is an admitted position that no such fresh exercise has been undertaken after 02.02.2018 or after 01.03.2018.
59. In the light of this discussion, we do not find it necessary to comment upon the assertions of respondents that petitioners have approached this Court with some ulterior motive. If petitioners are mischief mongers or wrong doers, respondents have law on their side and they can use their machinery to prevent malpractices. Omission to do that and making complaint to this Court, shows something else.
60. The mode and manner in which records have been prepared ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 00:22:45 ::: Judgment wp1637.18 + 2 34 by the Mining Branch in Collector, Nagpur speaks volumes for itself. We in this jurisdiction and in absence of adequate opportunity to respondents or their officers in this respect, refrain from observing more.
61. In this situation, we now move to consider the objection to locus of present petitioner raised by respondents. Needless to mention that findings recorded by us supra are grave enough to discard such objection at threshold. Judgment of Hon'ble Supreme Court in case of State of Orissa Vrs. Ram Chandra Dev (supra), in paragraph no.8 shows a finding that jurisdiction of High Court under Article 226 is very wide, but, then it must be established with party seeking relief as a right, and said right is illegally invaded or threatened. The question before the Hon'ble Supreme Court was about right of respondent before it to possession of properties. In present matter, the petitioners have pointed out that they are citizens, and it is not in dispute that all of them are either in politics or then active in social life. They are not seeking any benefit individually for themselves.
62. In K.C. Pazhanimala and others Vrs. State of Kerala and others (supra), in paragraph no.6, the Full Bench of Kerala High Court has observed that the appellants before it were directly affected by provision ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 00:22:45 ::: Judgment wp1637.18 + 2 35 of certain clauses in the impugned order. The discussion by Full Bench is on same lines as mentioned above, and there the judgment of Hon'ble Supreme Court in AIR 1962 SC 1044 (Calcutta Gas Company (Proprietary) Ltd. .vrs. State of West Bengal), laying down the scope of powers of High Court under Article 226 of the Constitution of India, has been appreciated. That discussion therefore, does not help respondents in the present matter.
63. In case of Deepak Kumar and others vrs. State of Haryana and others (supra), the Hon'ble Supreme Court has addressed the issue of Mining, particularly Minor Minerals, Environmental Protection and Pollution Control. Discussion or guidelines laid down there in paragraph no.19 do not advance the cause of respondents or show any want of locus in present petitioners.
64. Learned Senior Counsel, has invited our attention to a judgment of Hon'ble Supreme Court in case of Ram Tawakya Singh vrs. State of Bihar and others (supra). There, in paragraph no.44, while dealing with a challenge to the appointment of a person as Vice Chancellor and Pro-Vice Chancellor, the Hon'ble Supreme Court has observed that person challenging the same was Professor and Head of the Department and though he does not project himself as a candidate in the ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 00:22:45 ::: Judgment wp1637.18 + 2 36 office of Vice Chancellor or Pro-Vice Chancellor, that by itself was not sufficient to deny him the right to question the appointments made by the Chancellor. Here as we have already noted supra, the status or position of respective petitioners, is not in dispute. Though the concerned Gram Panchayats, who are directly affected have chosen not to approach the Court, there may be several reasons for the same. When we find that a mandatory policy of the State Government has been violated, absence of Gram Panchayat resolution supporting petitioners or then omission of Gram Panchayat to knock the doors of this Court cannot be a decisive factor. Petitioners have brought to the notice of this Court the violations which are material in nature. Attempt of the respondents to depart from their assertion on affidavit about adhering to new policy dated 03.01.2018 and our findings supra, are sufficient to discredit the respondents.
65. In this situation, we quash and set aside the auction notice dated 05.03.2018, issued by respondent no.6 Tahsildar, Saoner. Consequently, the impugned tender notice published on 14.03.2018, is also quashed and set aside.
In Writ Petition No. 1764/2018, the advertisement for auction dated 08.03.2018, is quashed and set aside.
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Judgment wp1637.18 + 2 37 In Writ petition No. 1818/2018, the auction notice dated 05.03.2018 at Annexure-P2 with the Writ Petition is quashed and set aside.
66. Writ Petitions are thus allowed. Rule is made absolute accordingly. However, in the circumstances, we direct the parties to bear their own cost.
67. Documents retained on record on 17.04.2018, shall be returned to learned A.G.P. after judgment is signed.
JUDGE JUDGE
Choulwar/Rgd
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