Andhra HC (Pre-Telangana)
D. Srinivasa Rao And Ors. vs State Of A.P., P.R. And R.D. (Pts Iii) ... on 24 November, 2000
Equivalent citations: 2001(4)ALT75
JUDGMENT G. Bikshapathy, J.
1. Both the Writ Petitions can be disposed of by a common judgment.
2. In these Writ Petitions, the constitutional validity of G.O.Ms. No. 71 issued by the Government, Panchayat Raj and Rural Development (PTS-III), dated 29-6-2000 framing the rules called A.P. Panchayat Raj (Auction of Sand in the Water Courses vesting in Gram Panchayat) Rules, 2000 (hereinafter called the "Auction Rules" for short) is assailed with consequential challenge to the auction notifications issued in pursuance of the said G.O. The Rules stipulated the method and manner of auction of sand. The notifications were issued for auctioning various sand quarries in pursuance of the G.O.Ms. No. 71. It is the prime contention of the petitioners that impugned G.O.Ms. No. 71 is incompetent and ultra vires the Constitution and the provisions of the A.P. Panchayat Raj Act, 1994. It is further stated that even the Rules framed under G.O.Ms. No. 71 are illegal and offending Articles 14 and 21 of the Constitution of India. Since the main thrust of argument was on the constitutional validity of G.O.Ms. No. 71, the learned Counsel for the petitioners and the learned Additional Advocate General argued the matter at length on this point. Therefore, it is necessary to consider this point before going into the other submissions made by the learned Counsel for the petitioners.
3. Mr. P.S. Narayana, the learned Counsel appearing for the petitioners submits that the sand falls under mineral and the Legislative field is exclusively occupied by Union Government and it is governed by the Central Act namely The Mines and Minerals (Regulation and Development) Act, 1957. The sand is a minor mineral as per the classification made in the said Central Act. As far as the major minerals are concerned, the Rules are framed by the Central Government, however, in respect of the minor minerals, which includes sand, the State Government was empowered to frame the Rules under Section 15 of the Act. Therefore, he submits that the State Government is only a delegate for working out the functioning of minor minerals. The State Government is authorised to frame the Rules in that regard, the method and manner of identifying the minerals, grant of lease, method of granting lease and other connected matters. Thus, the sand quarry is fully occupied by the/Union List under Entry 33 List-I of Schedule-VII of Constitution of India. What was delegated to the State Government was only a rule making power and beyond that it has no power to regulate the mines. Under the Rule making power, the State Government through the Department of Mines and Geology framed rules called A.P. Minor Mineral Concession Rules, in G.O.Ms. No. 1172, dated 4-9-1967, by virtue of the powers vested in the State Government under Section 15 of the Central Act. The leasing out and the auctioning out of sand was being regulated by the Industries and Commerce Department under the A.P. Minor Mineral Concession Rules, 1966. Rule 9 of the said Rules contained various provisions for auctioning of sand quarries and lease agreements etc. Appeal and revision are also provided under the said Rules. The procedure of conducting auction of sand quarries was being issued from time to time on the basis of the policy issued by the Government. Various clauses of Rule 9 were amended: We are not concerned with all the amendments of notification in G.O.Ms.No. 417, dated 1-12-1998. After Rule 9-V, Rule 9-W was added by which all the areas other than Krishna and Godavari Rivers having potential sand bearing areas can be leased out by the respective Gram Panchayats, Municipalities, Municipal Corporations, notified areas. As per the procedure laid down by the Panchayat Raj Department and Municipal Administration Department and the procedure has been prescribed under G.O.Ms.No. 71 of Panchayat Raj Department dated; 29-2-2000. The learned Counsel for the petitioners submits that the power of leasing out and auction of the quarries by the respective Gram Panchayats, Municipalities etc., itself is illegal and contrary to law. The Gram Panchayats or Municipalities have no power to leasing out quarries. Admittedly the sand is a Minor Mineral and is to be regulated under the Rules framed under Section 15 of Central Act by the State Government and in fact the State Government had framed the Rules called A.P. Minor and Mineral Concession Rules. Therefore, the Government have no power to sub-delegate the said power to Municipalities and the Panchayat Raj Department and therefore, the exercise of power in G.O.Ms.No. 71 is illegal and contrary to law. He further submits that the G.O.Ms.No. 71 was issued in exercise of the powers conferred under Clauses 11,12, and 22 of Section 268 read with Section 95 of the Panchayat Raj Act and therefore, under those provisions, the power of leasing out of quarries is not available. Therefore, the very notification G.O.Ms.No. 71 is ultra vires powers under the provisions of Panchayat Raj Act. He relies on the following decisions of the Supreme Court:
Ramesh Birch v. Union of India, Chandra Bali Prasad v. Rex, . V.M. Sanjanwala v. The State of Bombay, . Bishamber Dayal Chandra Mohan v. State of U.P, . B. Shama Rao v. Union Territory, . D.K. Trivedi and Sons v. State of Gujarat, AIR 1986 SC 1323.
4. Further, the learned Counsel Mr. P.S. Narayana submits that the very Rules are framed by virtue of the powers vested under Section 268, they cannot be read as if they relate to Rules framed under Section 15 of the Central Act. Therefore, in the absence of framing any Rules under Section 15, Rules framed in G.O.Ms. No. 71 are illegal and without jurisdiction.
5. On the other hand, the learned Advocate General submits that under Section 15, the State Government is empowered to frame the Rules and in fact the Industries Department had already framed the Rules called A.P. Minor Mineral Concession Rules, 1966 as amended from time to time. Ultimately, the Government have amended the said Rules leaving it open to the Gram Panchayats and the Municipalities concerned to auction the sand quarries as per the guidelines framed by Panchayat Raj Department and Municipal Administration Department. Therefore, the power of the Government to frame the Rules is traceable to Section 15. Hence, G.O.Ms.No. 71 even though it is styled as the rules under Section 268, still, a wrong question of a statutory provision would not make the rule invalid and incompetent. He also submits that even under the provisions of A.P. Panchayat Raj Act, the rules can be sustained independent of the inappropriate reference to the legal provisions. He relies on the following decisions:
State of Sikkim v. Dorjee Tshering Bhutia, . Smt. Ram Pyari v. Jagdish Lal, . Pine Chemicals Ltd. v. Assessing Authority, .
6. For proper appreciation of the case, it is necessary to extract Section 15 of the Central Act, which reads thus:
15. Power of State Governments to make rules in respect of minor minerals. - (1) The State Government may, by notification in the Official Gazette, make rules for regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith.
(2) Until rules are made under Subsection (1), any rules made by a State Government regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals which are in force immediately before the commencement of this Act shall continue in force.
(3) The holder of a mining lease or any other mineral concession granted under any rule made under Sub-section (1) shall pay royalty in respect of minor minerals removed or consumed by him or by his agent, manager, employee, contractor or sublessee at the rate prescribed for the time being in the rules framed by the State Government in respect of minor minerals:
Provided that the State Government shall not enhance the rate of royalty in respect of any minor mineral for more than once during any period of four years."
It is also not in dispute that the State Government by virtue of the aforesaid powers framed the Rules A.P. Minor Mineral Concession Rules.
7. The issue that arises for consideration is whether the impugned notification is valid?
8 In Trivedi's case (6th cited supra), the issue that arose for consideration before the Supreme Court was the validity of Section 15(1) of Central Act. While upholding the validity, the Supreme Court held that it did not amount to excessive delegation of Legislative powers to the Executive. It was further observed by the Supreme Court that the guidelines for exercising such Legislative powers were found in Section 13(1) and restrictions provided under Sections 4 to 12. It observed as follows:
"The power to make rules under Section l5(l) includes the power to amend the rules so made, including the power to amend the rules so as to enhance the rates of royalty and dead rent.
Rules under Section l5(1), though made by the State Government, are rules made under a Central Act and the provisions of General Clauses Act, 1897, apply to such rules. Under Section 21 of the General Clauses Act, where by any Central Act, a power to make rules is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions if any, to add to, amend, vary or rescind any rules so made. The power to amend the rules is, therefore, comprehended within the power to make rules and as Section 15(1) confers upon the State Governments the power to make rules providing for payment of dead rent and royalty, it also confers upon the State Governments the power to amend those rules so as to alter the rates of royalty and dead rent so prescribed, either by enhancing or reducing such rates."
This decision is of no assistance, inasmuch as, only the power delegated to the Gram Panchayats and Municipalities is challenged in this Writ Petition.
9. In Ramesh Birch's (1st cited supra), it was a case of conferment of power to Executive to extend any laws in force in any State, Union Territory of Chandigarh, certain provisions of the Panchayat Raj Rent Act was made applicable to the Union Territory of Chandigarh by the Parliament in 1974 by 1974 Act and the Central Act was issued under notification on 15-12-1986 under Section 87 of Panchayat Raj Act extending the Union Territory of Chandigrah, the provisions of State Panchayat Raj Amendment Act, 1985. The said notification was challenged. It was upheld by the Punjab & Haryana High Court. Therefore, the matter carried to the Supreme Court. While dealing with the matter, the Supreme Court in paras 23, 25 and 26 observed as follows:
"23. But, these niceties apart, we think that Section 87 is quite valid even on the "policy and guideline" theory if one has proper regard to the context of the Act and the object and purpose sought to be achieved by Section 87 of the Act. The judicial decisions referred to above make it clear that, it is not necessary that the Legislature should "dot all the 1's and cross all the t's" of its policy. It is sufficient if it gives the broadest indication of a general policy of the Legislature. If we bear this in mind and have regard to the history of this type of legislation, there will be no difficulty at all. Section 87, like the provisions of Acts 1,11 and 111, is a provision necessitated by changes resulting in territories coming under the legislative jurisdiction of the Centre. These are territories situated in the midst of contiguous territories which have a proper Legislature. They are small territories falling under the legislative jurisdiction of Parliament which has hardly sufficient time to look after the details of all their legislative needs and requirements. To require or expect Parliament to legislate for them will entail a disproportionate pressure on its legislative schedule. It will also mean the unnecessary utilisation of the time of a large number of members of Parliament for, except the few (less than ten) members returned to Parliament from the Union Territory, none also is likely to be interested in such legislation. In such a situation, the most convenient course of legislating for them is the adaptation, by extension, of laws in force in other areas of the country. As FazI Ali J. pointed out in the Delhi Laws Act case, (AIR 1951 SC 332), it is not a power to make laws that is delegated but only a power to "transplant" laws already in force after having undergone scrutiny by Parliament or one of the State Legislatures, and that too, without any material change. There is no dispute before us and it has been unanimously held in all the decisions that the power to make modifications and restrictions in a clause of this type is a very limited power, which permits only changes that the different context requires and not changes in substance. There is certainly no power of modification by way of repeal or amendment as is available under Section 89.
25. So far as the first aspect referred by Sri Swarup is concerned, the provision only confers a power on the executive to determine, having regard to the local conditions prevalent in the Union Territory, which one of several laws, all approved by one or the other of the Legislatures in the country, will be the most suited to Chandigarh." Thus viewed, it would fall under one of the permissible categories of delegation referred to at p.814 in the Delhi Laws Act case, (AIR 1951 SC 332), and extracted by us earlier and, if so, it is not really an unguided or arbitrary power. There could have been no objection to the legislation if it had provided that the laws of one of the contiguous States (say Punjab) should be extended to Chandigarh. But such a provision would have been totally inadequate to meet the situation for two reasons. There may be more than one law in force on a subject in the contiguous States - say one in Punjab, one in Pepsu and one in Himachal Pradesh etc., and Parliament was anxious that Chandigarh should have the benefit of that one of them which would most adequately meet the needs of the situation in that territory. Or, again, there may be no existing law on a particular subject in any of the contiguous areas which is why the power had to include the power of extending the laws of any State in India. While, in a very strict sense, this may involve a choice, it is in fact and in the general run of cases, only a decision on suitability for adaptation rather than choice of a policy. It is a delegation, not of policy, but of matters of detail for a meticulous appraisal of which Parliament has no time. Even if we assume that this involves a choice of policy, the restriction of such policy to one that is approved by Parliament or a Sate Legislature constitutes a sufficient declaration of guideline within the meaning of the "Policy guideline" theory.
26. The second aspect referred to by Sri Swarup, again, is, in the context, not a sign of "abdication" but is only a necessary enabling power. Once it is held that the delegation of a power to extend a present existing law is justified a power to extend future laws is a necessary corollary. Here, again, its validity may be tested by considering what the position, would have been if the section had provided only for the extension of the law in a contiguous territory, say Punjab. As mentioned earlier, a power to extend existing Statutes in Punjab could clearly have been delegated. If Parliament formulated such a policy as it has no time to apply its mind to the existing law initially to be adapted, it could hardly find time to consider the amendments from time to time engrafted on it in the State of its origin. Hence once a policy of extension of Punjab Laws is clear and permissible it would seem only natural as a necessary corollary that the executive should be permitted to extend future amendments to those laws as well. The power to extend any future law has to be considered in the above context and not only could be, but also has to be, conferred for the same reasons as justify the conferment of a power to extent a present contiguous law. Mukherjea J. in the Delhi Laws Act case (AIR 1951 SC 332) has touched upon this issue. As pointed out by him, the question of validity of the delegation of a power to extend any future law, is not free from difficulty. If the provision is considered in the abstract and construed on the basis of its fullest possible ambit, it may be difficult to sustain it. But if it is construed and judged in the historical context of the legislation, the needs of the situation and a reasonably practical appraisal of the extent of its intended application, there can be no doubt that it contains a sufficient indication of broad policy to sustain the validity of the extent of delegation involved in Section 87. We may, in this context repeat again that Courts, in the decided cases, do not envisage a meticulous enunciation of a policy in all its details. They are satisfied even if they can discern even faint glimmerings of one from the object and scheme of the legislation."
But, the decision of the Supreme Court has no application to the facts of this case. What is sought to be contended by the learned Counsel for the petitioners was that a total abdication of the power of the Government in favour of the Gram Panchayats and Municipalities. But, the question is whether G.O.Ms.No. 71 is constitutionally valid. If it is constitutionally held valid, then the other provisions may not be necessary to be considered.
10. In Chandra Bait Prasad's case (2nd cited supra), the learned Single Judge has observed that the Rule making power under Section 19 of Northern India Ferries Act restricted only to two classes of Rules mentioned thereunder. Therefore, the Rules made by the Commissioner prohibiting the establishment of another private ferry within the distance of two miles from the limits of an existing ferry is ultra vires and cannot form the basis of conviction under Section 19 read with Section 23.
11. In Shama Rao's case (5th cited supra), the Supreme Court held that where there is abdication or effacement the Legislature concerned in truth and in fact acts contrary to the instrument which constituted it the statute in question would be void and stillborn.
12. But, it is not a case of abdication of Legislative power to the Executive.
Section 15(1) authorised the State Government to frame the Rules and in fact the Rules were framed. But, however, the State Government in respect of the grant of quarry lease added Rule 9-W to the A.P. Minor Mineral Concession Rules and directed the Panchayat Raj Department and the Municipal Administration Department to frame the guidelines for conduct of the auction of the sand quarries. Can it be said that it is an abdication of Legislative function. Admittedly, the State Government is delegate and it is empowered to frame the Rules. But, whether the State Government can direct the other departments to frame the Rules is the question.
13. In Bishamber Dayal's case (4th cited supra), it was held that the State in exercise of its executive power is charged with the duty and the responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed. If there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions, until the Legislature makes a law in that behalf.
14. Dealing with the Essential Commodities Act, which was enacted by Parliament in exercise of concurrent jurisdiction under Entry 33, List III of the Seventh Schedule to the Constitution as amended by the Constitution (Third Amendment) Act, 1954. The exercise of such concurrent jurisdiction would not deprive the State Legislature of its jurisdiction thereunder. The executive power of the State being co-extensive with its legislative power under Entry 33, List III, it relates to all matters covered by the subject "foodstuffs" trade and commerce in, and the production, supply and distribution thereof. This is, of course, subject to the limitation contained in Proviso to Article 162.
15. But, this decision also has no direct bearing on the case on hand.
16. In Sanjanwala's case (3rd cited supra), the Supreme Court held that the power of delegation is a constituent element of the legislative power as a whole, and in modern times when the Legislatures enact laws to meet the challenge of the complex socio-economic problems, they often find it convenient and necessary to delegate subsidiary or ancillary powers to delegates of their choice for carrying out the policy laid down by their acts. The extent to which such delegation is permissible is also settled. The Legislature cannot delegate its essential legislative function in any case. It must lay down the legislative policy and principle, and must afford guidance for carrying out the said policy before it delegates its subsidiary powers in that behalf.
17. While dealing with the challenge to the vires of any statute on the ground of excessive delegation it is necessary to enquire whether the impugned delegation involves the delegation of an essential legislative function or power and whether the Legislature has enunciated its policy and principle and given guidance to the delegate or not. Therefore, the Supreme Court held that, it is necessary to take into account the statements in the preamble to the Act, and if the said statements afford a satisfactory basis for holding that the legislative policy and principle has been enunciated with sufficient accuracy and clarity the preamble itself would satisfy the requirements.
18. Thus, applying the said provisions, the Supreme Court had upheld the validity of Section 6(2) of Bombay Tenancy and Agricultural Land Act and the notifications issued thereunder were held to be valid. In the case on hand, as far as the delegation under Section 15(1) of the State Government is concerned, it is beyond the pale of controversy and the Supreme Court also upheld the validity of Section 15(1) and therefore, in view of this, the judgment relied on by the learned Counsel is not of much assistance.
19. The learned Additional Advocate General relied on the decision reported in D.T. Bhutia's case (7th cited supra) to the effect that if the source of power is traceable in exercise of such power cannot be set aside under a different provision. The Supreme Court observed as follows:
"The executive power of the State cannot be exercised in the field which is already occupied by the laws made by the Legislature. Any order, instruction, direction or notification issued in exercise of the executive power of the State which is contrary to any statutory provisions is without jurisdiction and is a nullity. But in the instant case the Sikkim State Civil Service Rules (1977) though enforced, remained unworkable for about five years. The Public Service Commission, which was the authority to implement the Rules, was not in existence during the said period. There is nothing on the record to show as to Why the Public Service Commission was not constituted during all those five years. The executive power of the State being divided amongst various functionaries under Article 166(3) there is possibility of lack of co-ordination amongst various limbs of the Government working within their respective spheres of allocation. The object of regulating the recruitment and conditions of service by statutory provisions is to rule out arbitrariness provide consistency and crystallise the rights of employees concerned. The statutory provisions which are unworkable and inoperative cannot achieve these objectives. Such provisions are non est till made operational. It is the operative statutory provisions which have the effect of ousting executive power of the State from the same field. When in a peculiar situation, the statutory provisions could not be operated there was no bar for the State Government to act in exercise of its executive power. Therefore, where the notification issued by the State Govt. In its executive powers after five years of enforcement of Rules, for making special recruitment to the State Service, mentioned the "exigencies of service, envisaged under Rule 4(3) as ground for special recruitment and the Committee for the selection was formed and the notification was issued to remove stagnation and to afford an opportunity to the eligible persons to enter the service, the notification could not be said to be illegal. The fact that the State Government purported to act under Rule 4(3) of the Rules in issuing the notification is of no consequence. When the source of power can be validly traced then the State action in the exercise of such power cannot be struck down on the ground that it was labelled under a different provision."
20. He also relied on the decision reported in Ram Pyari's case (8th cited supra), to the effect that when once the Order was obtained under Rules, it cannot be invalidated because of the non-mention of subject rule.
21. In M/s. Pine Chemicals Limited's case (9th cited supra), it was held that if the power is traceable to enabling provision Order would be deemed to have been made thereunder.
22. G.O.Ms.No. 71 was issued by virtue of the powers vested under Section 268, which is a rule making power. The preamble of the G.O. itself indicates the source of power, which reads thus:
"In exercise of the powers conferred by Clauses (xi), (xii) and (xxii) of Section 268 read with Section 95 of the A.P. Panchayat Raj Act, 1994 (Act 13 of 1994) the Governor of Andhra Pradesh hereby makes the following rules in respect of auction of sand in the water courses vesting in Gram Panchayat."
By virtue of the said provision, the Government apart from the rule making power, conferred under the Act, it has also been conferred the power to make rules generally to carry out any of the purposes of the Act. Clauses 11, 12 and 22 were mentioned with reference to the rule under Section 268. Section 268 with the aforesaid clauses is extracted below:
"268. Power of Government to make rules for the purpose of this Act (1). The Government shall, in addition to the rule making powers, conferred on them by any other provisions of this Act, have power to make rules generally to carry out all or any of the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, the Government may make rules.
xxx xxx xxx
(xi) as to the conditions on which property may be acquired by a Gram Panchayat, Mandal Parishad or Zilla Parishad or on which property vested in or belonging to a Gram Panchayat, Mandal Parishad or Zilla Parishad may be transferred by sale, mortgage, lease, exchange or otherwise;
(xii) as to the conditions on which and the mode in which contracts may be made by or on behalf of Gram Panchayat, Mandal Parishad or Zilla Parishad.
(xxii) for regulating the sharing between local authorities in the State, of the proceeds of any tax or income levied or obtained under this or any other Act."
Therefore, what is competent for the State Government by virtue of the power vested under Section 268 is to frame the rules in general, to carry out the purpose of this Act. Apart from the generality of the power, it was also competent for the Government to make rules under Clauses 11, 12 and 22. But the reading of those rules would clearly indicate that the rules can be framed with regard to the acquisition or disposal of the property by the Gram Panchayat which vested in the Gram Panchayats. Clause 12 relates to the conditions, under which the contracts could be made on behalf of the Gram Panchayats. Clause 22, refers to a sharing of the amounts in respect of the tax or income levied are obtained under this or any other Act.
23. The sand quarries as already noted above falls under Central subject. Only by virtue of the delegated power, the Rules are framed by the State Government in respect of the Minor Minerals. Therefore, it cannot be said that the Minor Minerals is a property vested with the State Government or that it can enter into contracts or that the Gram Panchayats or other authorities can enter into contract with regard to such minerals. Section 95 contemplates prohibition against working of quarries near public roads. Section 95 reads as follows:
"95. Prohibition against working of quarry near public roads (1) No person shall work a quarry in, or remove stones, earth or other material from any place within twenty metres of a public road or of other immovable property vesting in or belonging to the Gram Panchayat under a licence issued by a Gram Panchayat. The Gram Panchayat may either grant or refuse to grant a licence and in the later case the reasons for refusal shall be communicated to the person concerned.
(2) If, in the opinion of the Gram Panchayat, the working of any quarry or the removal of stone, earth or other material from any place is dangerous to any person residing in or having legal access to the neighbourhood thereof, or creates or is likely to create a nuisance, the Gram Panchayat may require the owner or person having control of the said quarry or place of discontinue working the same or to discontinue removing stone, earth, or other material from such place or to take such action in respect of such quarry or place as it shall deem necessary for the purpose of preventing danger or of abating the nuisance arising or likely to arise there from."
Therefore, a reading of the aforesaid Section clearly indicates that the quarrying is prohibited without the permission of the Gram Panchayats. It is not a general provision whether the Gram Panchayats is empowered to prohibit the quarry in all the places, which vested with the Gram Panchayats. Therefore, admittedly, the rules itself are styled as auctioning sand quarries vested in Gram Panchayats. But, when the sand itself is covered by the A.P. Minor Mineral Concession Rules, there could not be any parallel rules on the very same subject. Under Section 15(1), the Minor Minerals Concession Rules were already framed and Rule 9 deals with the procedure of auction of leasehold rights in sand quarries. But, what is sought to be done in the case as far as the auction of the leasehold rights is concerned, the Government has again directed the Panchayat Raj Department to frame the scheme. Instead of framing a scheme, Panchayat Raj Department has issued rules purporting to be under Section 268 read with Section 95 of A.P. Panchayat Raj Act. The scheme has to be framed by virtue of the amendment to Rule 9 of Minor Mineral Concession Rules, but there could not be any independent rules under Section 268 with reference to Section 95. Neither Section 95 nor Clauses 11, 12 and 22 of Section 268 would cover the auction of sand quarries in the water courses. Even if the water courses vest in the Gram Panchayats by virtue of the provisions of the Act, yet, the sand is a Minor Mineral which cannot be dealt with by the Gram Panchayats under the provisions of the Panchayat Raj Act and no Rules could be framed under Section 268. The intention of the Legislature is very clear and the delegation was only to the extent of Minor Minerals under Section 15(1) and the State Government is empowered to make the rules only under Section 15 and not under any other provisions of the other Act namely A.P. Panchayat Raj Act. The statute enables the Government to frame the rules under the provisions of the Central Act only and the framing of Rules under the State Act is neither permissible nor competent. Therefore, the contention of the learned Additional Advocate General that under Section 268, the Government is entitled to frame the Rules has to be necessarily rejected. However, he further submits that it has to be construed that even though it has framed rules by virtue of Section 268 they are to be read as Rules under Section 15(1) of the Central Act. I am unable to accept this contention also. The framing of a scheme is different from framing of a Rule. Issuing the Rules is a statutory function conferred on the Executive. Framing of a scheme is a policy of the Government. Therefore, the statutory function cannot be clubbed with the policy of the Government. They stand on different footing with different intentions. The reading of the rule in the impugned G.O. itself clearly indicates that the statutory Rules framed under the A.P. Panchayat Raj Act by virtue of Section 268. Since, I have already held that the Rules cannot be framed under the said provisions necessarily the impugned Order is ultra vires the constitution and the power under the A.P. Panchayat Raj Act.
24. The learned Additional Advocate General further alternatively submits that even assuming that the State Government has no power to make the rules under the A.P. Panchayat Raj Act, yet, wrong mention of provision would not make the rule invalid. It must be construed as if it is a rule framed under Section 15(1) of the Central Act. It is no doubt true that mere wrong mention of a particular provision would not invalidate the Executive action as held by the Supreme Court referred to above. But, the question here is the provision of the statute is different both the statute stand on a different heights. The Central Act and the Panchayat Raj Act are quite different. If the wrong provision is made within the statute, it can be held that the Executive action cannot be nullified and struck down. But, it would not be appropriate to construe them that the Rules must be treated as if the Rules made under Section 15 of Central Act which is totally a different statute. If a power is traceable to Section 268 and if sub-clauses are mentioned in a different fashion, in such an event that would not invalidate the Rules. But, to submit that these Rules framed under Section 268 should be treated as if they are framed, under Section 15 of the Central Act would be totally deviating from the settled legal position. If such an interpretation has to be accepted, it leads to anomalous result. Simply because, power of the State Government is traceable to Section 15(1) of Central Act, it cannot be correlated to the power under Section 268 of the Panchayat Raj Act. State Government performs various duties within the statutory frame work. What all the Executive can do under Section 268 cannot be treated as the Rules either under the Central Act or vice-versa. Thus, I am not in a position to appreciate the contention of the learned Additional Advocate General that the G.O. should be treated as if it is issued under Section 15(1). Even Rule 9-W of A.P. Minor Mineral Concession Rules contemplate that potential sand bearing areas can be leased out by Gram Panchayats/Municipalities, if they so desire as per the procedure fixed by the Panchayat Raj/Municipal Administration Department. Whether such a provision is valid and whether Government can compartmentalise the rules and authorise different departments to frame the procedures is a different aspect. But, the very source of power under Panchayat Raj Act is different from a power under the Central Act. They cannot go together and one source of power cannot be treated as substitute source of power in other statutes. Thus, I am of the view that the impugned Order is wholly unsustainable in law and it has to be necessarily declared as ultra vires A.P. Panchayat Raj Act. Consequently, the notifications issued by the Government in pursuance of the G.O.Ms.No. 71 are liable to be set aside. Accordingly, they are set aside.
25. The Writ Petitions are accordingly, allowed.
26. However, this Order does not affect the leases already granted by the Gram Panchayats/Municipalities. No costs.