[Cites 23, Cited by 0]
Jammu & Kashmir High Court - Srinagar Bench
Abdul Rehman Malik (Aged 64 Years ... vs Ut Of J&K Through Commissioner on 28 April, 2026
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 15.04.2026
Pronounced on: 28.04.2026
Uploaded on: 29.04.2026
Whether Full Judgment or
Operative Has Been pronounced: Full
WP(C) 710/2024 CM(1896/2024)
CM(1897/2024) CM(5082/2024) CM(6667/2025).
Inhabitants Of Village Pariswani
Tehsil Kawarhama District
Baramulla Through:
1. Abdul Rehman Malik (Aged 64 Years Approx.)
S/O Abdul Raheem Malik
R/O Village Pariswani
Tehsil Kawarhama District
Baramulla.
2. Abdul Rashid Malik (Aged 60 Years Approx.)
S/O Ghulam Mohammad Malik
R/O Village Pariswani
Tehsil Kawarhama District
Baramulla.
3. Ghulam Mohi-Ud-Din Malik (Aged 63 Years
Approx.)
S/O Fathe Mohammad Malik
R/O Village Pariswani Tehsil
Kawarhama District Baramulla.
4. Shabir Ahmad Dar (Aged 43 Years Approx.)
S/O Abdul Gani Dar.
R/O Village Pariswani Tehsil
Kawarhama District Baramulla.
5. Bashir Ahmad Malik (Aged 37 Years Approx.)
S/O Ghulam Mohammad Malik
R/O Village Pariswani Tehsil
Kawarhama District Baramulla.
6. Ghulam Mohammad Malik (Aged 55 Years
Aprox.
S/O Fathe Mohammad Malik
R/O Village Pariswani Tehsil
Kawarhama District Baramulla.
.........Petitioner(s)
Page 1 of 24 WP(C) 710/2024
Through:
Mr. Gulzar Ahmad Sopori, Adv.
Versus
1. UT Of J&K Through Commissioner
Secretary To Revenue Department
Government Of Jammu And Kashmir
At Civil Secretariat Srinagar/Jammu.
2. Commissioner Secretary to
Department Of Geology And Mining
(Industries And Commerce) At Civil
Secretariat Srinagar/Jammu.
3. Divisional Commissioner of Kashmir
At Srinagar.
4. Director Geology and Mining of
Kashmir Range At Srinagar.
5. Deputy Commissioner Baramulla.
6. District Mining Officer Department of
Geology And Mining (Industries And
Commerce At Baramulla).
7. Sdm (Sub Divisional Magistrate) Zone
Tangmarg District Baramulla.
8. Sdpo (Sub Divisional Police Officer)
Tangmarg. District Baramulla.
9. Tehsildar Kawarhama District
Baramulla.
10. SHO Police Station Kunzar District
Baramulla.
.......Respondent(s)
Through:
Mr. Hakim Aman Ali, Dy. AG
Mr. Illyas Nazir Laway, GA
CORAM:
HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
JUDGMENT
1. The petitioner through the medium of the instant petition has sought the
following relief(s):
I) "By issuance of writ of mandamus or any other
appropriate relief thereby directing upon the respondents
not to restrain, not to cause any sort of harassment to the
inhabitants while earning their livelihood by extracting
sand and bolders/small stones from their property land
and from the Arrah/Nallah situated in the Village
Pariswani Tehsil Kawarhama District Baramulla.
II) By issuance of appropriate writs or appropriate orders
thereby commanding upon the respondents to take a
decision with regarding to depositing of royalty on behalf
of the inhabitants for the land notified as Arrah/Nallah
situated in Village Pariswani Tehsil Kawarhama District
Baramulla so as to enable the inhabitants to utilize the
same for their livelihood purposes to sustain and maintain
their survival and feed their families.
III) By issuance of appropriate writ or appropriate order
thereby direction upon the respondents not to cause
unnecessary restrains to the inhabitants while utilizing
their land and also while working in the said
Arrah/Nallah for their livelihood purposes and allow the
inhabitants to earn their livelihood in accordance with the
law".
Brief Facts:
2. The brief facts of the case are that petitioners, who are residents of
village Pariswani, have filed the instant petition on behalf of the inhabitants of
the said village, aggrieved of the action on the part of the respondents in not
permitting the petitioners and other inhabitants to utilize their proprietary land
by extracting sand, crusher material and bajri therefrom, particularly after the
said land had been converted into a Nallah. It is further averred that the
petitioners and other inhabitants are also not being permitted to extract stones
and sand from the Nallah passing through the village, from which they have
been earning their livelihood for centuries, despite the fact that the petitioners
have been depositing royalty with the Government.
Submissions on Behalf of Petitioners:
3. Learned counsel for the petitioners, Mr. Gulzar Ahmad Sopori, submits
that the Government without issuance of any notification is not accepting
royalty from the inhabitants for extracting the said sand/small stones, which
has caused hardships and starvation to the hundreds of families. It is
contended that the main survival of the inhabitants is on the said extraction,
and till 2021, the petitioners were regularly depositing royalty before the
concerned department, pursuant to which they were permitted by the
Government to extract sand and small stones from the Nallah in question. The
material so extracted was being utilized for construction of buildings, houses
and roads. According to the petitioners, the action of the respondents in not
accepting the royalty and in restraining the inhabitants from carrying on their
livelihood is illegal, arbitrary and unjustified.
4. It is further submitted that petitioners have been earning their
livelihood by extracting sand and stones from the Nallah, i.e., Block Nos. 10,
11 and 12, upon payment of the requisite royalty, which was being regularly
deposited earlier. It is further averred that the said Nallah passes through the
proprietary land of the petitioners and that a portion of such proprietary land
has since merged into the Nallah. The petitioners submit that, having no other
regular source of income, they have been engaged in the extraction of sand
and stones from the said Nallah since time immemorial for their sustenance.
5. Learned counsel for petitioners contended that they have been
subjected to victimization, inasmuch as their vehicles have been seized and
fines have been imposed by the respondents, and they are not being permitted
to extract sand and stones despite the fact that they had been depositing
royalty with the respondents. The petitioners, in support of their case, have
relied upon Article 19 of the Constitution of India, contending that they
possess a fundamental right to carry on occupation, trade and business for
their sustenance and livelihood. According to the petitioners, extraction of
sand and stones from the land in question, which are utilized for construction
purposes, forms part of their constitutional right, and the respondents cannot
raise any objection in this regard.
Submissions On Behalf of Respondents:
6. The material placed on record reveals that there are two set of replies
filed on behalf of the respondents. It has been submitted by respondents that
the grant of mineral concessions in the erstwhile State of Jammu and Kashmir
was earlier governed by the Minor Mineral Concession Rules, 1962 till
January, 2016. Thereafter, the Government of Jammu and Kashmir, vide
SRO-105 dated 31.02.2016, introduced a new statutory framework known as
the Jammu and Kashmir Minor Mineral Concession, Storage,
Transportation of Minerals and Prevention of Illegal Mining Rules, 2016,
regulating the grant of various forms of mineral concessions in respect of
minor minerals in the State. It is submitted that the said Rules were framed in
light of the judgment passed by the Hon'ble Supreme Court in Deepak
Kumar vs. State of Haryana and Ors., as well as the subsequent amendments
made in the Environmental Impact Assessment (EIA) Notification issued by
the Ministry of Environment, Forest and Climate Change vide Notification
No. S.O. 141(E) dated 15.01.2016, along with amendments in the Mineral
Concession Rules, 1960 and the introduction of the Mineral (Auction) Rules,
2015.
7. It is further submitted that although the petitioners had been granted
permissions for minor mineral extraction under the earlier regime till March,
2016, however, with the advent of the new Rules of 2016, the entire
procedure and requirements for grant of mineral concessions underwent a
substantial change. Consequently, the Department of Geology and Mining
identified environmentally viable spots on Ferozpora Nallah and carved out
Minor Mineral Blocks which were thereafter put to e-auction under the
prevailing Rules. These included Minor Mineral Block No. 10 measuring 9.98
hectares and Minor Mineral Block No. 11 measuring 6.68 hectares.
8. The respondents further submit that the petitioners raised an objection
that part of their proprietary land had been included in the said auctioned
blocks and accordingly approached this Court in the matter titled Abdul
Rashid Malik & Ors. vs. Geology and Mining & Ors. Pursuant to the
directions passed therein, the matter was referred to the Revenue Department
and the Tehsildar, Kawarhama, who vide communications dated 03.10.2020
and 02.12.2020 reported that proprietary land under Survey No. 191 partially
and Survey No. 95 wholly falls within Minor Mineral Block No. 11, while
proprietary land under Survey Nos. 101, 202, 199 min, 200, 201, 207, 208
and 212 fell within Minor Mineral Block No. 10. In light of the said reports,
Minor Mineral Blocks No. 10 and 11 were accordingly resized by excluding
the private/proprietary land. It is submitted that the remaining area of the said
blocks falling under Survey No. 215 stands recorded as State land and/or Gair
Mumkin Ara.
9. Further, the respondents have categorically submitted that under the
existing Minor Mineral Concession Rules, no permission can be granted to
the petitioners for extraction of stones and sand from State land. However, it
is stated that the petitioners are at liberty to apply for grant of mineral
concession in respect of their proprietary land, subject to fulfillment of all
requisite formalities prescribed under the Rules. It is contended that instead of
following the statutory procedure, the petitioners have continued extraction
from State land without valid permission, which is impermissible in law.
10. The Learned counsel for respondents, while placing reliance upon the
section 4(1) of the Mines and Minerals (Development and Regulation) Act,
1957, have submitted that no person has an unfettered right to transport or
store any mineral except in accordance with the provisions of the Act and the
Rules framed thereunder. It is contended that, in the absence of any valid
permission in favour of the petitioners, action, as warranted under the Act and
the Rules, has rightly been initiated against them for violation of the law.
11. The respondents have further submitted that, in case the petitioners
want to extract the minor mineral from the said Nallah, they are required to
follow the procedure as envisaged under law and the Rules framed
thereunder, however, no such permission has been granted to them till date.
The petitioners, however, are resorting to illegal and unscientific extraction
during oddhours, and have taken undue advantage of the locality and in a way
are causing damage to the fragile ecology of the area, besides causing
substantial loss to the public exchequer.
12. Further, learned counsel for respondents with a view to fortify their
claim have placed reliance upon Section 4(2) of the Mines and Minerals
(Developmental Regulation Act) 1957, which provides that no mineral
concession shall be granted otherwise than in accordance with the provisions
of the Act and the Rules made thereunder.Relying upon the said statutory
provision, it has been contended that no mineral concession can be granted
unless all requisite formalities, are duly completed in conformity with the
rules, in force.
13. Lastly, it has been submitted that the inhabitants of village Pariswani
had, in the month of February, 2024, approached the District Mineral Office,
Baramulla, seeking permission for extraction of sand and stones from their
proprietary land, which had admittedly been affected by floods. Pursuant
thereto, they were apprised of the requisite formalities to be fulfilled under the
Rules for grant of mineral concession and were accordingly advised to
complete the same so that the concession could be considered in their favour.
However, till date, the petitioners have neither approached the competent
authority nor have completed the requisite formalities, and to the contrary, are
carrying out illegal mining activities from the State land/GairMumkin Area
falling in estate Pariswani.
LEGAL ANALYSIS
14. Heard learned counsel for the parties at length and perused the material
placed on record, this Court finds that the entire case set up by the petitioners
proceeds on the premise that their alleged proprietary rights over the land,
which has subsequently converted into Nallah due to floods , together with
the past practice of extraction of minor minerals, confers upon them a vested,
continuing and enforceable right to carry on such activity.
15. In light of the aforesaid pleadings and submissions, the following issues
arise for consideration before this Court:
I)Whether mere ownership of proprietary land or past
practice of extraction confers upon the petitioners a
vested right to extract minor minerals such as sand,
boulders and stones from the land/Nallah?
II)Whether extraction, transportation and storage of
minor minerals from the said Nallah/proprietary land
can be undertaken by the petitioners without obtaining a
valid mineral concession, licence, lease or permission
under the Mines and Minerals (Development and
Regulation) Act, 1957 and the Rules framed
thereunder?
III)Whether the refusal of the respondents to permit
such extraction and their action in restraining the
petitioners, seizing vehicles and imposing penalties
amounts to violation of the petitioners' fundamental
right under Article 19(1)(g) of the Constitution of India
or is justified as a reasonable statutory restriction in
public interest?
IV)Whether this Court, in exercise of writ jurisdiction
under Article 226 of the Constitution of India, can issue
a writ of mandamus directing the respondents to permit
extraction of minor minerals or accept royalty in
contravention of the statutory provisions governing
mining activities and environmental protection?
I) Whether mere ownership of proprietary land or past practice
of extraction confers upon the petitioners a vested right to
extract minor minerals such as sand, boulders and stones from
the land/Nallah?
16. The core issue that falls for the consideration of the Court is Whether
mere ownership of proprietary land or past practice of extraction confers upon
the petitioners a vested right to extract minor minerals such as sand, boulders
and stones from the land/Nallah.
17. The basic premise of the petitioners arguments is that since the land
originally belonged to them and part of the same has now assumed the
character of a Nallah, they possess a continuing right to extract sand, stones
and boulders therefrom. They further fortify their claim by relying upon the
fact that for several years they had been extracting such material and
depositing royalty with the Government. According to petitioners, this long-
standing and continuous practice has crystallized into a vested and
enforceable legal right.
18. It is well settled that minerals do not constitute part of the attributes of
proprietary rights in land, and the right to extract the same cannot be claimed
as an incident of ownership of the land. Mere ownership does not ipso facto
confer any right to extract or exploit the minerals beneath. The right to
undertake such activity is not inherent but is subject to a comprehensive
statutory regime enacted in public interest, keeping in view the need for
regulated and scientific exploitation of natural resources. Extraction of
minerals, therefore, can be carried out only in accordance with the provisions
of the governing statute and the rules framed thereunder, and not otherwise
and any claim to the contrary is clearly untenable in law
19. In the considered opinion of this Court, the contention raised by the
petitioners is fundamentally misconceived. Mere Ownership of land does not
automatically confer ownership over the minerals lying beneath the surface,
nor does it create an unrestricted right to exploit such minerals. Mineral
wealth is not treated as an ordinary incident of proprietary ownership rather, it
is governed by a distinct statutory regime enacted in larger public interest.
Minerals are regarded as national assets and natural resources, the regulation
and exploitation whereof is controlled by the State in trust for the people.
20. It is well settled that rights over surface land and rights over sub-soil
minerals are separate and distinct. Mere ownership of land does not ipso facto
entitle a person to undertake mining operations. Extraction of minerals is not
a natural extension of proprietary rights but is subject to statutory regulation
under the Mines and Minerals (Development and Regulation) Act, 1957 and
the Rules framed thereunder.
21. The Kerala High Court in case titled Joby P.D vs The District
Collector reported as 2016 SCCOnline Ker 27349 while relying on
Thressiamma Jacob & Ors vs Geologist,Dptt.Of Mining & Geology has held
that:
"37. As held by the Apex Court in Thresiamma
Jacob's case (supra), the provisions under
the MMDR Act is a regulatory measure and
despite the ownership of the sub soil being
conferred on the owner of the property, it does
not detract from the requirement for a
lease/licence/permit to extract minor mineral like
ordinary clay from such property. In case of
extraction, even if made from land owned by
private persons, the owner is obliged under
Chapter III of KMMC Rules to get quarrying
permit on the same conditions as in Chapter II of
the said Rules and submit an attested copy of the
same to the competent authority. Otherwise, the
extraction of minerals made from such lands
would also be illegal, in which event, it will be
open to the State to invoke the provisions under
sub-section (5) of Section 21 of the MMDR Act."
22. The plea of the petitioners that their proprietary land has now become
part of a Nallah also does not advance their case. Once the land assumes the
character of a natural watercourse or Nallah, it acquires public significance
beyond private ownership. Such natural resources are subject to
environmental regulation and public trust obligations. The petitioners cannot
assert exclusive extraction rights over such an area merely on the basis of
previous ownership.
23. In Mineral Area Development Authority & Anr. Vs M/S Steel
Authority of India & Anr Etc. reported as (2024) 10 SCC 1 the Hon'ble
Supreme Court observed that :
"The public trust doctrine is founded on the
principle that certain resources are nature's
bounty which ought to be reserved for the whole
populace, for the present and for the future.
Since these resources are intrinsically important
to every person in society, the State acts as a
public trustee to safeguard them. In M C Mehta v.
Kamal Nath, Justice Kuldip Singh observed that
the State is the trustee of all natural resources
which are by nature meant for public use and
enjoyment. The learned Judge further observed
that the State has a legal duty to protect natural
resources which cannot be converted into private
ownership.
The environment and natural resources are
national assets and subject to intergenerational
equity.
The public trust doctrine looks beyond the needs
of the present generation and obligates the State
to protect natural resources for future generations
as well."
24. This court is of the considered view that the Public Trust Doctrine is a
constitutional reminder that natural resources such as minerals, rivers, forests,
and nallahs are not private commodities but collective assets belonging to the
people. The State holds them only as a trustee and is under a legal and moral
obligation to protect, preserve, and regulate their use in public interest and for
future generations. Mere long-standing extraction or payment of royalty
cannot create an enforceable right to exploit such resources, particularly
where environmental balance and ecological sustainability are at stake.
Private commercial interest must always yield to public welfare,
environmental protection, and the principle of intergenerational equity, for
nature's bounty cannot be exhausted for present convenience at the cost of
future survival.
25. The reliance placed by the petitioners upon the past practice of
depositing royalty is equally misconceived and does not advance the case of
petitioner. Royalty, by its very nature, is a contractual or statutory payment
made for the extraction of minerals pursuant to a valid lease, licence or
concession; it does not, in itself, constitute or create an authorization to
undertake mining activity. In other words, the right to extract minerals flows
from a valid permission granted in accordance with law, and not from the act
of depositing royalty. The past practice and long-standing extraction, even if
it was permitted earlier, does not create a vested or perpetual right. If the law
changes or regulatory requirements are altered, every person must comply
with the prevailing statutory framework. Past tolerance or administrative
practice cannot create legal entitlement contrary to law.
26. The doctrine of legitimate expectation also has no application where
the expectation itself is contrary to statute. No citizen can claim a legitimate
expectation to continue an activity prohibited by law.
27. This Court is therefore of the considered opinion that neither
proprietary ownership of land nor past practice of extraction creates any
vested or enforceable right in favour of the petitioners to continue extraction
of minor minerals. Such activity can only be undertaken in accordance with
statutory permission granted under law and not otherwise.
28. Accordingly, Issue No. I is answered.
II) Whether extraction, transportation and storage of minor
minerals from the said Nallah/proprietary land can be
undertaken by the petitioners without obtaining a valid
mineral concession, licence, lease or permission under the
Mines and Minerals (Development and Regulation) Act,
1957 and the Rules framed thereunder?
29. This issue strikes at the very root of the controversy involved in the
present petition. The petitioners seek a direction from this Court permitting
them to extract sand, stones and boulders from the Nallah and the adjoining
proprietary land on the ground that such activity has been their traditional
source of livelihood. However, the legality of such extraction must be tested
strictly in light of the statutory framework governing mining operations.
30. The field of mining and extraction of minerals is comprehensively
regulated by the Mines and Minerals (Development and Regulation) Act,
1957 (for short, "the MMDR Act") and the Rules framed thereunder. Section
4 of the Act creates an absolute prohibition against undertaking any mining
operations except in accordance with a valid mineral concession, lease,
licence or permit granted under the statute.
31. Section 4(1) of the Act clearly provides that no person shall undertake
reconnaissance, prospecting or mining operations in any area except under
and in accordance with the terms and conditions of a mineral concession
granted under the Act and the Rules framed thereunder. The provision further
extends the prohibition to transportation and storage of minerals by
specifically providing that no person shall transport or store any mineral
except in accordance with the provisions of the Act. For facility, of reference,
section 4(1) is reproduced as under:
"No person shall undertake any
reconnaissance, prospecting or mining
operations in any area, except under and in
accordance with the terms and conditions of a
mineral concession or of a or of a exploration
licence or, as the case may be, of a mining
lease, granted under this Act and the rules
made thereunder:Provided that nothing in this
sub-section shall affect any prospecting or
mining operations undertaken in any area in
accordance with the terms and conditions of a
prospecting license or mining lease granted
before the commencement of this Act which is
in force at such commencement:[Provided
further that nothing in this sub-section shall
apply to any prospecting operations
undertaken by the Geological Survey of India,
the Indian Bureau of Mines, ] [ Inserted by
Act 37 of 1986, Section 2 (w.e.f.
10.2.1987).][the Atomic Minerals Directorate
for Exploration and Research] [ Substituted
by Act 38 of 1999, Section 5, for " the Atomic
Minerals Division" (w.e.f. 18.12.1999).][of
the Department of Atomic Energy of the
Central Government, the Directorates of
Mining and Geology of any State Government
(by whatever name called), and the Mineral
Exploration Corporation Limited, a
Government company within the meaning of
[clause (45) of section 2 of the Companies
Act, 2013, and any other entities including
private entities that may be notified for this
purpose, subject to such conditions as may be
specified by the Central Government"] [
Inserted by Act 37 of 1986, Section 2 (w.e.f.
10.2.1987).]:][Provided also that nothing in
this sub-section shall apply to any mining
lease (whether called mining lease, mining
concession or by any other name) in force
immediately before the commencement of this
Act in the Union territory of Goa, Daman and
Diu.] [ Inserted by Act 16 of 1987, Section 14
(w.r.e.f. 1.10.1963).
No person shall transport or store or cause to
be transported or stored any mineral
otherwise than in accordance with the
provisions of this Act and the rules made
thereunder.] [ Inserted by Act 38 of 1999,
Section 5 (w.e.f. 18.12.1999).
(2)[No mineral concession, prospecting
license or mining lease] [ Substituted by Act
38 of 1999, Section 5, for " No prospecting
license or mining lease" (w.e.f.
18.12.1999).] shall be granted otherwise than
in accordance with the provisions of this Act
and the rules made thereunder.
(3)[ Any State Government may, after prior
consultation with the Central Government and
in accordance with the rules made under
section 18, ] [Inserted by Act 37 of 1986,
Section 2 (w.e.f. 10.2.1987). ][undertake
reconnaissance, prospecting or mining
operations with respect to any mineral
specified in the First Schedule in any area
within that State which is not already held
under any mineral concession, prospecting
license or mining lease] [ Substituted by Act
38 of 1999, Section 5, for certain words (w.e.f.
18.12.1999)".
32. The Hon'ble Supreme Court in Common cause v. Union of India
reported as (2017) 9 SCC 499 has categorically held that:
"130. Section 4(1) of the MMDR Act makes it
clear that no person can carry out any mining
operations except under and in accordance
with the terms and conditions of a mining lease
granted under the MMDR Act and the rules
made thereunder. Obviously therefore, any
person carrying on mining operations without a
mining lease, is indulging in illegal or unlawful
mining. This would also necessarily imply that
if a mining lease is granted to a person who
carries out mining operations outside the
boundaries of the W.P. (C) Nos. 114/2014 etc.
mining lease, the mineral extracted would be
the result of illegal or unlawful mining."
33. The language in Section 4 is mandatory and leaves no scope for any
exception based on personal hardship, local practice, proprietary rights or
livelihood concerns. The legislative intent is clear that mineral resources,
being valuable natural assets, must be regulated strictly through a legal
mechanism so as to prevent indiscriminate exploitation and environmental
degradation.
34. The provision unequivocally stipulates that no person shall undertake
any reconnaissance, prospecting or mining operations in any area except
under and in accordance with a valid mineral concession, licence or lease
granted under the Act and the rules framed thereunder. The provision further
extends the prohibition not only to extraction but also to transportation and
storage of minerals, thereby indicating the legislative intent to regulate the
entire chain of mining activity in a comprehensive manner.
35. Applying the aforesaid statutory mandate to the facts of the present
case, this Court finds that in the absence of any valid mineral concession,
licence or lease in favour of the petitioners, their act of extracting,
transporting or dealing with minor minerals cannot be sustained in the eyes of
law. The petitioners cannot seek to justify such activity on the basis of
ownership of land, past practice or alleged hardship, as none of these
considerations can override the express statutory prohibition. In such
circumstances, the action of the respondents in restraining the petitioners and
taking steps in accordance with law cannot be faulted, being in consonance
with the mandate of Section 4 of the Act.
36. The Hon'ble Supreme Court in Deepak Kumar v. State of Haryana
reported as 2012 (4) SCC 629 has emphasized that even extraction of minor
minerals such as sand, gravel and boulders must be subjected to strict
environmental scrutiny and statutory regulation. The Court observed that:
"Mining of minor minerals, though individually,
because of smaller size of mine leases is
perceived to have lesser impact as compared to
mining of major minerals. However, the activity
as a whole is seen to have significant adverse
impacts on environment. It is, therefore,
necessary that the mining of minor minerals is
subjected to simpler but strict regulatory regime
and carried out only under an approved
framework of mining plan, which should provide
for reclamation and rehabilitation of the mined
out areas."
37. This court is of the considered view that "minor minerals" are not
minor in their environmental consequences their impact is often grave and far
reaching. Extraction of sand, gravel, stones, and boulders from riverbeds and
nallahs may appear insignificant, but their cumulative impact is often severe,
leading to soil erosion, depletion of groundwater, destruction of aquatic
ecosystems, weakening of riverbanks, and increased risk of floods. The
Hon'ble Supreme Court rightly emphasized that such activities cannot be left
to unchecked private exploitation and must operate only within a strict
statutory and environmental framework. Mining plans, environmental
clearances, and rehabilitation measures are not mere procedural formalities
but essential safeguards to ensure that economic activity does not cause
serious damage to the environment and public welfare.
38. In the present case, it is an admitted position that the petitioners do not
hold any valid mineral concession, mining lease, licence or statutory
permission authorizing them to undertake extraction of minor minerals from
the Nallah in question. The respondents have specifically stated that the
petitioners were informed of the procedure required for obtaining mineral
concession in accordance with the Rules of 2016, yet they failed to complete
the requisite formalities.
39. Instead of following the legal procedure, the petitioners continued
extraction activities and were allegedly transporting minerals without valid
documentation. Such conduct clearly falls within the ambit of illegal mining
and unauthorized transportation of minerals, which is expressly prohibited
under law.
40. The argument that the petitioners were earlier permitted to extract
minerals upon payment of royalty does not dilute the mandatory nature of
Section 4. Even if such practice existed prior to the coming into force of the
new Rules, the same cannot continue dehors the present statutory regime.
Once the law mandates grant of concession through prescribed procedure,
every person is bound to comply with the same.
41. This Court is therefore of the considered opinion that no extraction,
transportation or storage of minor minerals can be legally undertaken without
a valid mineral concession or statutory permission. In the absence of such
authorization, the petitioners possess no enforceable right to continue such
activity.
42. Accordingly, Issue No. II is answered.
III) Whether the refusal of the respondents to permit such
extraction and their action in restraining the
petitioners, seizing vehicles and imposing penalties
amounts to violation of the petitioners' fundamental
right under Article 19(1)(g) of the Constitution of
India or is justified as a reasonable statutory
restriction in public interest?
43. The petitioners have sought to invoke Article 19(1)(g) of the
Constitution of India by contending that extraction of sand and stones from
the Nallah constitute their traditional occupation and sole source of
livelihood, and therefore any restraint imposed by the respondents amounts to
infringement of their fundamental right to carry on trade, occupation and
business.
44. Article 19(1)(g) undoubtedly guarantees to every citizen the right to
practice any profession or to carry on any occupation, trade or business.
However, such right is not absolute. Article 19(6) expressly permits the State
to impose reasonable restrictions in the interest of the general public.
Activities involving exploitation of natural resources, particularly mining
operations, fall squarely within the sphere of regulated trade and are subject to
strict statutory control.
45. Mining is not an ordinary commercial activity. It directly impacts
environment, ecology, groundwater, river systems, biodiversity and public
revenue. Unregulated extraction of sand and minor minerals from riverbeds
and Nallahs can result in riverbank erosion, lowering of groundwater levels,
damage to infrastructure such as bridges and roads, increased flood
vulnerability and irreversible ecological degradation.
46. For this reason, the state has enacted a comprehensive regulatory
regime under the MMDR Act and the Rules framed thereunder. Such
regulation constitutes a valid and reasonable restriction under Article 19(6).
47. The Hon'ble Supreme court in case tiled Sushila Saw Mill Vs. State
Of Orissa & Ors reported as 1995 SCC (5) 615,has held as under:
"The right to carry on trade of business envisaged
under Art. 19(1) (g) and Art. 301 is subject to the
statutory regulation."
48. This Court is of the considered view that the activity of extraction of
minor minerals, which is governed by a comprehensive statutory framework
under the Mines and Minerals (Development and Regulation) Act, 1957 and
the Rules framed thereunder, squarely falls within the domain of regulated
trade. The petitioners, therefore, cannot claim any unfettered right to carry on
such activity merely on the basis of livelihood or past practice, in disregard of
the statutory requirements. Livelihood cannot be used as a shield to justify an
activity prohibited by law. If such contention is accepted, every form of
illegal extraction would be justified on ground of economic hardship, which
would defeat the very purpose of environmental and mining regulations.
49. The respondents, in the present case, have not imposed any arbitrary or
unreasonable restriction. They have merely enforced the statutory provisions
and prevented unauthorized mining. The seizure of vehicles and imposition of
penalties are measures contemplated under law to curb illegal extraction and
protect public resources.
50. This Court is not oblivious to the hardship projected by the petitioners,
who claim that their livelihood depends upon such extraction. However, it is
equally well settled that hardship cannot be a ground to permit an activity
which is otherwise prohibited by law. The petitioners are at liberty to apply
for lawful mineral concession in accordance with the Rules. Accordingly, the
action of the respondents is held to be a lawful exercise of statutory power
and does not violate Article 19(1)(g) of the Constitution.
51. Issue No. III is accordingly answered .
IV) Whether this Court, in exercise of writ jurisdiction
under Article 226 of the Constitution of India, can
issue a writ of mandamus directing the respondents to
permit extraction of minor minerals or accept royalty
in contravention of the statutory provisions governing
mining activities and environmental protection?
52. The last issue that arises for determination is whether this Court, while
exercising extraordinary writ jurisdiction under Article 226 of the
Constitution, can direct the authorities to permit the petitioners to extract
minor minerals despite the absence of a valid mineral concession or statutory
permission.
53. A writ of mandamus can only be issued for enforcement of a legal right
and against failure of a corresponding legal duty. It cannot be issued to
compel an authority to act contrary to law, ignore statutory provisions, or
bypass mandatory legal requirements.
54. The Hon'ble Supreme Court in State Of West Bengal vs Subhas
Kumar Chatterjee & Ors reported as (2010) 11 SCC 694 has
authoritatively held that:
"No court can issue Mandamus directing the
authorities to act in contravention of the rules as it
would amount to compelling the authorities to violate
law. Such directions may result in destruction of rule
of law."
55. The petitioners' prayer for acceptance of royalty is equally
misconceived. Acceptance of royalty is not an independent right. Royalty is
merely a statutory consequence flowing from a valid grant of mining
permission. It cannot precede or replace the legal requirement of obtaining a
concession.
56. Further, the doctrine of public trust imposes an additional constitutional
duty upon the State to protect natural resources such as rivers, Nallahs and
fragile ecologically zones for the benefit of the public at large.
57. The Hon'ble Supreme Court in M.C. Mehta vs. Kamal Nath, (1997) 1
SCC 388, has held that:
"In our legal system - based on English Common Law
- includes the public trust doctrine as part of its
jurisprudence. The State is the trustee of all natural
resources which are by nature meant for public use
and enjoyment. Public at large is the beneficiary of
the sea- shore, running waters, airs, forests and
ecologically fragile lands. The State as a trustee is
under a legal duty to protect the natural resources.
These resources meant for public use cannot be
converted into private ownership"
58. This Court is of the considered view that the Nallah in question, being a
natural watercourse, squarely falls within the category of resources held by
the State in trust for the public at large. The material placed on record prima
facie demonstrates that the petitioners have been extracting minor minerals
from the said Nallah without any valid permission or statutory authorization.
Such activity, apart from being in violation of the governing statutory
framework, also runs contrary to the public trust doctrine, inasmuch as it
amounts to appropriation of a public resource for private benefit without
lawful sanction.
59. A Nallah is not merely a source of sand and stones for private
exploitation, it is a living ecological asset, an integral component of
environmental balance, replenishment of groundwater, biodiversity
preservation and the larger public trust doctrine. Riverbeds, streams and
Nallahs perform a vital ecological function by maintaining the natural flow of
water, preventing soil erosion, sustaining aquatic life and preserving the
hydrological balance of the surrounding region. Indiscriminate extraction of
sand, boulders and minor minerals from such natural watercourses disturbs
the ecological equilibrium and causes irreversible environmental damage.
60. Unregulated sand mining from a Nallah results in deepening of the
riverbed, destabilization of banks, erosion of adjoining agricultural land and
weakening of embankments, thereby increasing the risk of floods and
landslides. It lowers the groundwater table by disrupting the natural recharge
mechanism and adversely affects irrigation and drinking water availability for
nearby inhabitants. Excessive removal of stones and boulders also damages
the natural flow pattern of the stream, destroys fish habitats, affects aquatic
biodiversity and leads to the collapse of ecosystems. Such activity further
endangers public infrastructure such as bridges, culverts and roads by
undermining their structural foundation. Therefore, illegal mining is not
merely a question of unauthorized extraction of minerals. it is a direct impact
on environmental sustainability and inter-generational equity.
61. In such circumstances, the action of the respondents in seizing the
vehicles and imposing penalties upon the petitioners cannot be said to be
arbitrary, excessive or without authority of law. On the contrary, this Court
finds that the respondents have acted strictly in discharge of their statutory as
well as constitutional obligations to prevent illegal mining, protect natural
resources and uphold the rule of law. Any failure on their part to take such
action would itself have amounted to a breach of the public trust reposed in
them. This Court, therefore, finds no infirmity in the action taken by
respondents.
62. The Hon'ble Supreme Court in Natural Resources Allocation, In Re,
Special Reference No. 1 Of 2012 reported as (2012) 10 SCC 1 has
observed as under:
"128. In a constitutional democracy like ours,
the national assets belong to the people. The
Government holds such natural resources in
trust. Legally, therefore, the Government owns
such assets for the purposes of developing them
in the interests of the people."
63. This Court is of the considered view that the extraction of minor
minerals from a Nallah, which forms part of natural resources, cannot be
permitted except in strict adherence to the statutory regime governing the
field. Any direction by this Court allowing the petitioners to carry out such
extraction without compliance of the prescribed procedure, licence or
concession would not only be clear violation of the statutory provisions but
would also defeat the doctrine of public trust and the principle that natural
resources are to be utilized for the benefit of the public at large. Such a course
would amount to conferring an undue and unauthorized benefit upon a few
individuals at the cost of public interest .
64. This Court finds that the relief sought by the petitioners, if granted,
would run contrary to the law and would undermine the larger public interest
which the statutory framework seeks to protect.
65. This Court is of the considered opinion that any direction permitting the
petitioners to carry out extraction without following due process would not
only violate the statutory scheme but also be contrary to the larger public
interest.
66. Issue No. IV is answered, accordingly.
CONCLUSION:
67. In view of the aforesaid , this Court is of the considered opinion that
the petitioners have failed to establish any enforceable legal or fundamental
right so as to warrant interference in exercise of writ jurisdiction under Article
226 of the Constitution of India. The reliefs sought, if granted, would amount
to permitting extraction of minor minerals dehors the statutory framework ,
which is not permissible in law and contrary to the mandate of the Mines and
Minerals (Development and Regulation) Act, 1957 and the Rules framed
thereunder, as well as the law laid down by the Hon'ble Supreme Court. The
claim of the petitioners, being founded on alleged proprietary rights and past
practice, cannot override the binding statutory provisions and is, therefore,
devoid of any merit.
68. Accordingly, the writ petition, being misconceived and without any
legal basis, is dismissed It is, however, made clear that the dismissal of the
present writ petition shall not come in the way of the petitioners in seeking
appropriate relief in accordance with law. The petitioners shall be at liberty to
apply for grant of the requisite license/mineral concession before the
competent authority, strictly in terms of the applicable statutory provisions
and the Rules framed thereunder. In the event such an application is made, the
same shall be considered on its own merits, in accordance with law
expeditiously, and without being influenced by any observations made in this
judgment.
(WASIM SADIQ NARGAL)
JUDGE
Srinagar
28.04.2026
Sakeena
Whether the order is speaking : Yes
Whether approved for reporting : Yes
