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Synopsis

The Jammu & Kashmir and Ladakh High Court has dismissed a petition filed by stone crushing businesses challenging a Government order aimed at curbing illegal sand extraction.

Justice Rajnesh Oswal, presiding over the court, asserted that “the claim projected by the petitioners in the present writ petition is akin to a situation where prospective violator of law before committing any violation of law, knocks the door of the Court that in the event of his committing any violation of law, he be not proceeded against under a particular statue but some other statute. The whole cause projected by the petitioners is imaginary and in respect of something to happen in future.”

The court made the observation, while a hearing a plea challenging the order, bearing No. 1018-JK (GAD) of 2020 dated October 29, 2020, sanctioned the formation of a Special Task Force to combat the illicit extraction of sand and minor minerals from River Tawi and its tributaries.

The petitioners, engaged in stone crushing activities with legal permissions, contested the order, asserting that it was issued by an incompetent authority without jurisdiction under the Mines and Minerals (Development and Regulation) Act, 1957 along with the J&K Mines Minerals Concession, Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016. They argued that the Act of 1957 outlined specific procedures for regulating stone crushing operations and empowered designated authorities to conduct searches and impose penalties.

Presenting their case, the petitioners' counsel, Advocate Parag Sharma, vehemently argued that the impugned order lacked legal competence. He emphasised that the jurisdiction to prevent illegal mining rested solely with authorities designated under relevant mining regulations, not with the state officials, that issued the order.

Citing sections 15 and 23(C) of the 1957 Act, the petitioners emphasised that the State Government/ Union Territory was entrusted with the authority to formulate rules for preventing illegal mining, transportation and storage of minerals. They further pointed out that under SRO 105, officers of the Geology and Mining Department were vested with jurisdiction under various sections of the Act. Consequently, they asserted that the creation of the Special Task Force by the Union Territory of Jammu and Kashmir (respondent No.1) was unauthorised, as the Act had already delegated the responsibility of preventing illegal mining activities to the Geology and Mining Department.

The petitioners sought relief in the form of a writ of certiorari to annul the impugned order, along with a writ of mandamus directing the Station House Officer, Police Station, Domana and Station House Officer Police Station Satwari, Jammu (respondents No. 6 and 7) to adhere to provisions of the IPC when addressing offences, rather than invoking the provisions of the Mines and Minerals (Development and Regulation) Act, 1957, and its associated rules, unless specifically authorised by the competent authorities under the Act.

Additionally, the petitioners provided certain FIRs and penalty orders as evidence in support of their claims, reinforcing their argument against the legality of the impugned order.

In response to the petitioners' plea, the respondents countered with the assertion that Government Order No. 1018-JK(GAD) of 2020 was issued by the state in alignment with the observations and directives of the Division Bench of the Court in WPPIL No. 07/2014, titled "Dewakar Sharma and others vs State of J&K and others." This order aimed to address the pressing issue of illegal extraction of sand and minor minerals from the banks of River Tawi and its tributaries.

Mr. K. D .S. Kotwal, the learned Deputy Advocate General representing the respondents, argued that the impugned order was issued in accordance with the directives laid out by the Honourable Division Bench in the aforementioned case concerning the menace of illegal extraction activities. It was further emphasised that “the writ petition has been filed in anticipation of any action to be taken by the respondents in future and rather the petitioners can raise their grievance only if the action, otherwise that in accordance with law, is taken against them.”

In alignment with the counsel for the respondents, the court emphasised that the petition had been filed in anticipation, lacking any concrete evidence of violations under the Mines and Minerals (Development and Regulation) Act, 1957. The court held the view that legal recourse could only be sought after an actual breach of the law had taken place.

The court further likened the petitioners' claim to a scenario where a prospective violator of the law preemptively seeks legal protection before committing any offence, asserting that the entire premise of the petition was based on speculative future events, akin to seeking legal immunity before any wrongdoing has occurred. “the petitioners cannot approach this Court in anticipation,” the court said.

Furthermore, the court clarified that “No general directions can be issued to the Police to proceed in a particular manner and rather the petitioners can approach the Court in case the respondents proceed against the petitioners otherwise than in accordance with law.”

Ultimately, the court ruled that the petition appeared to have been filed with an ulterior motive and thus deemed it deserving of dismissal with costs. However, the court opted for leniency in its judgment and dismissed the petition without imposing any costs.

 

Cause Title: M/s New B. N. Stone Crusher th. its Proprietor Sh. Badrinath and Ors v UT of J&k [WP(C) No. 1370/2021]