Bombay High Court
Arunodaya Magaswargiya Mazoor ... vs The State Of Maharashtra on 4 December, 2013
Bench: B.P. Dharmadhikari, A.S. Chandurkar
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.6226/2013
PETITIONERS : 1. Arunodaya Magaswargiya Mazoor Kamgar
Sahkari Sanstha Ltd., Walni, Tahsil Saoner,
District Nagpur, through its President.
2. Arvind Hiraman Gajbhiye,
President, At & Post, Walni,
Tahsil Saoner, District Nagpur.
ig ...Versus...
RESPONDENTS : 1. The State of Maharashtra,
through the Secretary, Revenue and Forests
Department, Mantralaya, Mumbai - 400 032.
2. The Divisional Commissioner,
Nagpur Division, Civil Lines, Nagpur.
3. The Collector, Nagpur District,
Civil Lines, Nagpur.
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Shri M.V. Samarth, Adv. for petitioners
Shri N.W. Sambre, G.P. for respondents
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CORAM : B.P. DHARMADHIKARI AND
A.S. CHANDURKAR, JJ.
DATE : 04.12.2013
ORAL JUDGMENT (PER : B.P. DHARMADHIKARI, J.)
1. Looking to the nature of controversy, the petition is heard
finally with the consent of the parties by issuing Rule and making it
returnable forthwith.
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2. Prayer in the petition is to quash and set aside Clause 39 of
Government Resolution dated 12.3.2013 and to hold or to restore
reservation of sand Ghats, namely Gosewadi 'A' and 'B' and Isapur 'A'
and 'B' for Labour Co-operative Societies. The auction of these sand Ghats
is advertised on 21.9.2013 and is to be held on 5th or 6th December, 2013.
3. Advocate Shri Samarth has invited our attention to the
Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter
referred to as "1957 Act") to urge that the said Act and Rules framed
thereunder, namely Maharashtra Minor Mineral Extraction (Vidarbha
Region) Rules, 1966 (hereinafter referred to as "1966 Rules") provide for
such reservation. He contends that in the light of mandate of Section 28
which contemplates that Rules framed by the State Government under
Section 15 must be laid before the Parliament, the 1966 Rules cannot be
altered by a Government Resolution or any other executive feat. He states
that in exercise of the provisions of Rule 38, the State Government on
28.12.1974 issued a Circular and prescribed reservation in favour of
Co-operative Labour Societies. This reservation was for two Ghats
mentioned supra and lastly it was provided in 2001. After 2001, as there
was no Labour Co-operative Society and there was no demand, no
reservation was prescribed.
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4. He submits that a new Government Resolution laying down
policy of allotment of sand Ghats came to be published on 25.10.2010
and Clause 39 of that Resolution specifically stipulated that there should
not be any reservation in the matter of allotment of sand Ghats. This
policy decision has been recently substituted by 12.3.2013 decision, but
Clause 39 continues as it is. Clause 39 of 2010 policy has been looked into
by this Court at its Principal Seat in P.I.L. No.1/2011 while considering the
entitlement of "Hathpati" and "Dubi" sand excavators. He states that this
Court found that reservation provided for Hathpati and Dubi workers
could not have been taken away by making a provision in the shape of
Clause 39. He relies upon a later order dated 7.8.2012 in P.I.L. No.
116/2012, which mandated the State Government to make appropriate
provisions for such Hathpati/Dubi sand workers. In this background, the
learned Counsel states that when the directive principles of said policy
incorporated in Part IV of the Constitution of India so prescribe,
reservation in favour of Labour Co-operative Societies cannot be said to
be taken away by Clause 39.
5. As these two sand Ghats are placed at serial Nos.39 and 40
in the advertisement dated 31.9.2013, the learned Counsel submits that
advertisement to that extent is unsustainable and hence, the same should
be set aside. The sand Ghats must be made available to only eligible
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Labour Co-operative Societies and cannot be auctioned publicly.
6. During the course of arguments, he has relied upon the
Division Bench judgment of this Court in the case of Pandit
Bhullan...Versus...The Sarvodaya Vita Kavelu Kumbhar Kam Sahakari
Audyogik Utpadak Sanstha Ltd., Bina and others, reported in AIR 1978
Bombay 259 and also reply filed by Collector, Nagpur in Writ Petition
No.6372/2012 to urge that the policy of providing reservation of sand
Ghats in favour of Labour Co-operative Societies was never in dispute in
that writ petition.
7. Respondent nos.1 and 2 have not filed any reply. The
learned Government Pleader, appearing for the respondents, has relied
upon the reply-affidavit in rebuttal. He states that on 14.2.2001 Collector,
Nagpur wrote to Government on this aspect and there was no reservation
provided at that juncture. He further points out communication dated
26.2.2001 to urge that in response the Government only permitted
preference to a Society specifically in 2001 auction and as such there is no
policy decision.
8. He further submits that the above mentioned 1966 Rules
have been substituted by the Maharashtra Minor Mineral Extraction
(Development and Regulation) Rules, 2013 and therefore, Circular dated
28.12.1974 to that extent is not attracted or relevant. Our attention has
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been invited to Rule 88 and Rule 89 of these 2013 Rules to urge that the
State Government has not issued any direction under Rule 88 after repeal
of 1966 Rules.
9. In order to distinguish the views taken at Principal Seat, the
learned Government Pleader states that Government Resolution dated
12.3.2013, particularly its Clause 5 (B) specifically reserves sand Ghat for
Hathpati and Dubi work. He states that it is a traditional operation, where
no machines or other appliances are used and therefore, only this Court
has saved it.
10. He invites our attention to a judgment dated 15th and 16th
January, 2013 in Writ Petition No.6372/2012. One of us (B.P.
Dharmadhikari, J.) is a member. By pointing out paragraph nos.9 and 10
thereof he contends that the present petitioner did raise very same
grounds and hence, second challenge in the present matter at its instance
is not tenable. He, therefore, prays for dismissal of writ petition.
11. In reply, Advocate Shri Samarth submits that Writ Petition
No.6372/2012 was pressed by the present petitioner only in relation to
two Ghats i.e. Karaj Ghat-A and Waki Ghat-A. He further contends that
the aspect has not been decided as this Court, there, noted acquiescence
on the part of petitioner.
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12. About 2013 Rules, he relies upon Rule 89 Sub Rule 2 to urge
that a direction on lines of Circular dated 28.12.1974 can be issued even
under Rule 88 and hence, that direction is saved by Rule 89 (2). He,
therefore, prays for allowing the petition.
13. Petitioner no.1, before this Court, is a Labour Co-operative
Society and petitioner no.2 is its member. The assertion in paragraph no.1
of the petition shows that members of petitioner - Society are from
backward class and include the persons, who are carrying on their
traditional job of excavating the sand from sand Ghats. In paragraph
no.16, it is pleaded that order, dated 30.1.2011 of this Court at its
Principal Bench, gave primacy to the rights of the petitioners, who are
traditional excavators and are entitled to reservation.
14. Perusal of Rule 38 of 1966 Rules shows a power given to
State Government to give preference to Co-operative Labour Contract
Societies or then to reserve any area specified by State Government in its
order in which such lease or permit may be granted to such Societies only.
Opening para of Rule shows that the State Government has to form
opinion that it is in the interest of labourers, who work in mines. Thus,
the Labour Co-operative Society, in order to claim benefit of Rule 38, has
to show that the labourers who work in mines are its members.
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15. The provisions of Rule 88 of 2013 Rules are pari materia.
If the Government is of the opinion that it is necessary to do so in the
interest of labourers who work in mines, the State Government may by an
order direct grant of preference to Co-operative Labour Societies,
consisting of such labourers or then reserve any area in which such leases
or permits may be granted to such Societies only.
16. Perusal of Circular dated 28.12.1974 shows reference to
policy of State Government to encourage Co-operative Labour Societies in
the field of Mining Activities and therefore, the State Government
requested Collectors to take review of the cases in the District and find
out whether any of the quarry areas could be reserved for being granted
to Co-operative Labour Societies. The next document on which the
petitioner has placed reliance is a communication by the Collector, Nagpur
to Principal Secretary, Revenue and Forest Department. The said
communication dated 14.2.2001 informs the Government that if sand
Ghats at Mouza Isapur and Gosewadi were to be made available to Walni
- Paradi Labour Co-operative Society, Walni, approval of State
Government in terms of Rule 38 was necessary. It has been therefore
informed that said sand Ghats could have been considered for allotment.
The reply communication dated 26.2.2001 then prescribes grant of
preference to that Labour Co-operative Society in 2001 auction. The
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proposal prepared by office of Collector for re-auction of sand Ghats in
Nagpur District for a period from 1.4.2001 to 31.12.2001 carries a note
that these two sand Ghats are reserved for Labour Co-operative Societies
as per Government letter dated 7.3.2001. The petitioner has specifically
urged that though he tried to obtain copy of said letter even under Right
to Information Act, the copy has not been supplied.
17. The facts on record show that after 2001 in a subsequent
auction there was no such reservation or at least the petitioner is not
pointing out any such reservation. The petitioner no.1 - Labour
Co-operative Society has been registered in 2012 only. The reply filed by
the Collector in Writ Petition No.6372/2012, particularly paragraph no.4
thereof, on which Advocate Shri Samarth has placed reliance, contains a
statement that as per Clause 39 of Government Resolution dated
25.10.2010, no special privilege has been given to Co-operative Societies
in the matter of sand Ghats. Said paragraph further stipulates that
privileges might have been given to Co-operative Societies earlier come to
an end because of Clause 39. Same stance is reiterated as paragraph no.6
in reply-affidavit filed before this Court. However, in the said paragraph,
the subsequent Government Resolution dated 12.3.2013 has been pointed
out.
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18. If the arguments based upon the provisions of Section 28 of
1957 Act and the provisions of Rule 38 of 1966 Rules or the provisions of
Rule 88 of 2013 Rules are to be evaluated on merits, it is necessary for the
petitioners to demonstrate that the Circular dated 28.12.1974 has been
issued after recording opinion as contemplated in those Rules and in
terms of said statutory power. Consideration of said Circular, dated
28.12.1974 by us above, shows only a formal request by the State
Government to Collector, Nagpur to find out whether the sand Ghats
could be served for being granted to Labour Co-operative Societies. The
said Circular is not a decision under Rule 38 or Rule 88 as the case may
be. The documents dated 14.2.2001 or dated 26.2.2001 do not refer to
1966 Rules. Those documents, therefore, again cannot be read as
emanating from Rule 38 of 1966 Rules.
19. Reservation in general for Labour Co-operative Societies by
itself is not within the domain of either 1966 Rules or 2013 Rules. The
reservation prescribed by these Rules has to be in the interest of labourers
who work in mine and in favour of Co-operative Labour Societies,
consisting of such labourers i.e. labourers who work in mine. No
document on record shows that State Government, at any point of time,
prescribed reservation for Labour Co-operative Societies for labourers,
who work in mine. In short, the documents on record cannot be read as
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referable only to 1966 Rules or 2013 Rules. Hence, contention that policy
decision taken by the State Government in obedience to mandate of
Rule 38 could not have been altered without following the procedure
prescribed by Section 28 of 1957 Act is misconceived.
20. The Division Bench of this Court in the case of Pandit
Bhullan...Versus...The Sarvodaya Vita Kavelu Kumbhar Kam Sahakari
Audyogik Utpadak Sanstha Ltd., Bina and others (supra) only stipulates
granting of mining lease and preference to Co-operative Societies in
accordance with Part IV of the Constitution of India. Those observations
are, therefore, not relevant for deciding the present controversy.
21. Judgment delivered by this Court on 15th and 16th January,
2013 takes note of arguments of petitioner that as per Circular dated
5.10.1981, the State Government had given preference to Labour
Co-operative Societies in allotment of sand Ghat. Rule 38 of 1966 Rules
was also pressed into service at that juncture. However, perusal of said
judgment reveals that as petitioner was found to have taken full part in
the auction challenged, this Court has not evaluated these contentions.
22. When it is seen that there is no Circular or policy decision
emanating from 1966 Rules and therefore, referable to 1957 Act, it is
clear that reservation provided in 2001 or thereafter cannot be treated as
statutory and not open to alteration.
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23. The policy decision presently operating i.e. dated 12.3.2013
is in the light of various orders passed by this Court. In Writ Petition
No.4830/2010, this Court had asked the State Government to frame a
specific policy. The Government, accordingly, framed a policy and it was
placed before this Court. The said policy thereafter was issued in the
shape of Government Resolution dated 25.10.2010. Thereafter, because of
the difficulties faced and order passed by this Court on 30.6.2011 in P.I.L.
No.1/2011 as also in P.I.L. No.116/2012 and directions of the Hon'ble
Apex Court in S.L.P. Nos.19628/2009 and 19629/2009 dated 27.2.2012,
the State Government thought it proper to amend the policy decision
dated 25.10.2010.
24. The "Hathpati" or "Dubi" method by sand excavators is a
traditional method, where no mechanical appliances are used and
therefore, this Court found it necessary to protect the means of livelihood
of persons engaged in said excavation. The concern shown by this Court is
reciprocated in Government Resolution dated 12.3.2013. The Labour
Co-operative Society, like petitioner no.1 cannot be equated with the
individuals who excavate sands by using traditional means.
25. The petitioner - Society has made representation for the first
time on 18.6.2013 and the same appears to have been repeated thereafter.
The petitioner - Society, therefore, is expecting the State Government to
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take a policy decision. Hence, non filing of reply-affidavit by State
Government cannot confer any advantage upon it.
26. In the light of the findings reached above and as earlier the
State Government had at least in 2001 auction provided for such
reservation, we find it appropriate to direct the State Government to look
into the petitioner's representation as per law within a reasonable time
and in any case before holding the auctions in next year i.e. for the year
2014-15.
27. With these directions, the writ petition is disposed of. Rule is
discharged accordingly. No order as to costs.
JUDGE JUDGE
Wadkar
