Telangana High Court
M/S Super Enterprises And Another vs The State Of Telangana And 5 Others on 12 March, 2025
THE HON'BLE THE ACTING CHIEF JUSTICE SUJOY PAUL
AND
THE HON'BLE SMT. JUSTICE RENUKA YARA
WRIT PETITION Nos.11967 OF 2016; 40484 OF 2017; 2834, 6828
AND 7126 OF 2018 AND 28573 OF 2019
COMMON ORDER (per the Hon'ble the Acting Chief Justice):
Regard being had to the similitude of the questions involved,
on the joint request of the parties, the matters were analogously
heard and decided by this common order.
W.P.Nos.40484 of 2017; 2834, 6828 & 7126 OF 2018:
2. These petitions filed under Article 226 of the Constitution
assail the constitutionality of G.O.Ms.No.84, dated 09.11.2017,
whereby amendment is made to The Telangana State and Sand
Mining Rules, 2015 (for short, Rules of 2015), issued in
G.O.Ms.No.3, dated 08.01.2015. One such prayer is reproduced
for ready reference and it reads thus:
"...to issue an appropriate Writ order or direction more
particularly one in the nature of Writ of Mandamus declaring
G.O.Ms.No.84, Industries and Commerce (Mines.l)
Department dated 09-11-2017 as illegal null void and
arbitrary and consequently direct the Respondents to grant
permission to de-cast the sand and sell the sand through the
Assistant Director of Mines and Geology i.e., 5th Respondent to
the general public at the rate of Rs.400/- per cubic meter in
the local area of 100 kilometers radius from patta land..."
(Emphasis Supplied)
Factual Background:
3. The facts are taken from W.P.No.7126 of 2018. The
petitioners preferred an application in the year 2015 to the
Telangana State Mineral Development Corporation (Corporation)
seeking permission for de-casting of sand in their patta lands in
various villages of erstwhile Khammam District, now
Bhoopalapally District. The Corporation, after conducting a
detailed enquiry and survey, submitted the report to the District
Level Sand Committee. The file was pending in the office of the
District Collector and the petitioners' repeated requests to clear it
could not fetch any result. The petitioners could not get necessary
orders/permissions to de-cast the sand in their patta lands.
Contention of the petitioners:
4. Sri K. Durga Prasad, learned counsel for the petitioners,
urged that during rainy season because of floods, huge sand gets
accumulated on certain agricultural fields which are situated on
the banks of river/water bodies. After the rainy season, the sand
needs to be removed, so that the agriculturists can undertake
their agricultural activity. He submits that the Government of
Telangana issued G.O.Ms.No.3, dated 08.01.2015, which is
popularly known as 'New Sand Mining Policy-2014'. Rule 7 of the
Rules of 2015 was inserted permitting the pattadars to de-cast the
sand. Based on this rule, the petitioners submitted their
application for de-casting of sand in their patta lands.
5. The petitioners have raised eyebrows on the impugned
amendment through G.O.Ms.No.54, dated 21.08.2015, which
reads thus:
"The de-casting of sand in any patta land abutting river bed,
to make the land suitable for cultivation shall be by
M/s.Telangana State Mineral Development Corporation
Limited."
(Emphasis Supplied)
6. It is the common stand that the procedure prescribed under
the Rules and monopoly given to the Corporation is bad in law.
Because of this monopoly given to the Corporation, the delay is
being caused in de-casting the sand from the land of the
agriculturists which adversely affects their agricultural activity. If
the permission is given to the patta owners to sell the sand,
because of competitive rates, the end user will be benefitted.
Contention of the Government:
7. Sri S. Rahul Reddy, Special Government Pleader
representing learned Additional Advocate General for the
respondents, supported the impugned GO and urged that the
impugned rules are amended in consonance with rule making
power and the object of The Mines and Minerals (Development
and Regulation) Act, 1957 ('Act of 1957'). In order to avoid
illegal sale of sand and in order to regulate the same, the
impugned rule was brought into force and were successfully
operating for couple of years. Thus, no interference may be made.
8. No other point is pressed by learned counsel for the parties.
9. We have heard the learned counsel for the parties and
perused the record.
FINDINGS:
10. This is trite that the constitutionality of a provision must be
challenged by taking grounds with accuracy and precession.
Pertinently, in these cases, there exists no column of 'grounds' at
all. It is necessary to assail the statutory provision with clarity so
that the respondents may put forth their defence against each of
the ground raised with similar clarity. Statutory provisions
cannot be interfered with on mere asking. Thus, two
requirements are essential i.e., (i) to set out ground in specific to
declare a statutory provision as ultra vires and (ii) to assail the
provision in the relief clause.
11. The Apex Court in its recent judgment in Union of India v.
Manjurani Routray 1 held as under:
"10. After hearing the learned counsel for the parties and
considering the prayer made in the writ petition, it is luculent
that Respondent 1 did not set out any grounds to declare Rule
4(b) of the Rules as ultra vires. No such relief was even prayed
for in the writ petition. Respondent 1 in the writ petition
merely sought a writ in the nature of certiorari to set aside the
order of CAT. Therefore in the given facts, there was no
occasion for the High Court to declare Rule 4(b) as ultra vires.
11... It is a trite law that for striking down the provisions of
law or for declaring any rules as ultra vires, specific pleading
to challenge the rules and asking of such relief ought to be
made, that is conspicuously missing in the present case. In
the absence of such a pleading, the Union of India did not
have an opportunity to rebut the same. The other side had no
opportunity to bring on record the object, if any, behind the
Rules that were brought into force. We are also of the
considered view that, in the writ petition seeking a writ of
certiorari challenging the order of CAT, the High Court ought
not to have declared Rule 4(b) as ultra vires in the above fact
situation. Therefore, the High Court was not justified to
declare Rule 4(b) as ultra vires."
(Emphasis Supplied)
12. In these cases, the first requirement for assailing a statutory
provision is totally missing and, therefore, in view of judgment of
Manjurani Routray (supra), no interference can be made.
13. No amount of argument could be advanced as to how the
amended Rule 7 of the Rules of 2015 runs contrary to any
statutory or enabling provision. A statutory provision can be held
ultra vires only on satisfying certain strict parameters. The Apex
Court in its recent judgment in Naresh Chandra Agrawal v.
(2023) 9 SCC 144
Institute of Chartered Accountants of India 2, considered
previous judgments and culled out the principles as under:
"22....
15. There is a presumption in favour of constitutionality or
validity of a subordinate legislation and the burden is upon
him who attacks it to show that it is invalid. It is also well
recognized that a subordinate legislation can be challenged
under any of the following grounds:
(a) Lack of legislative competence to make the subordinate
legislation.
(b) Violation of fundamental rights guaranteed under the
Constitution of India.
(c) Violation of any provision of the Constitution of India.
(d) Failure to conform to the statute under which it is made or
exceeding the limits of authority conferred by the enabling Act.
(e) Repugnancy to the laws of the land, that is, any enactment.
(f) Manifest arbitrariness/unreasonableness (to an extent
where the court might well say that the legislature never
intended to give authority to make such rules)"
14. In these cases, the petitioners could not establish that any
such ingredient is available on the strength of which interference
can be made on the impugned rule. Hence, these petitions fail
and are hereby dismissed.
W.P.Nos.11967 of 2016 and 28573 of 2019:
15. In these Writ Petitions, the petitioners have challenged the
constitutionality of G.O.Ms.No.54, dated 21.08.2015, whereby
amendments are made to the Rules of 2015, issued in
G.O.Ms.No.3, dated 08.01.2015. One such prayer is reproduced
for ready reference and it reads thus:
2024 SCC OnLine SC 114
"...to issue a Writ, Order or direction, more particularly one in
the nature of writ of Mandamus or any other Writ, to declare
the action of the respondents in issuing G.O.Ms No. 54, dated
21/08/2015 in consequent to the G.O.Ms No. 30 dated
06/05/2015 authorizing Telangana State Mineral
Development Corporation Ltd., Hyderabad for the purpose of
de-casting of sand and other minerals over the patta lands,
affecting the rights of the petitioners, as illegal, improper,
unjust, violate of principles of natural justice and
consequently set aside the same..."
(Emphasis Supplied)
Factual Background and contention of the petitioners:
16. The facts are taken from W.P.No.28573 of 2019. The
petitioners are partners of a firm. Petitioner No.1 is in peaceful
possession and enjoyment of certain lands, description of which
are given up to para 3 of the writ affidavit. The principal grievance
of these petitioners is also same that after the floods, the sand is
being accumulated in the patta lands. The power to de-cast the
sand is given to the Corporation. The cumbersome procedure of
seeking permission from District Level Sand Committee through
Corporation causes serious problem to the petitioners.
17. Sri K.S. Suneel, learned counsel for the petitioners, submits
that the impugned GO is detrimental to the interest of the owners
of patta lands who had no liberty for the purpose of de-casting of
sand and sell the same at market price. This infringes
fundamental rights of the pattadars. Thus, impugned notification
is arbitrary.
Contention of the Government:
18. Sri S. Rahul Reddy, Special Government Pleader
representing learned Additional Advocate General for the
respondents, supported the impugned GO and urged that the
impugned rules are amended in consonance with rule making
power and the object of the Act of 1957. In order to avoid illegal
sale of sand and with a purpose to regulate the same, the
impugned rules were brought into force and are successfully
operating for couple of years. In addition, he submits that the
petitioners in whose lands the sand is being accumulated will get
a share of sale consideration, in case of sale of such sand. Thus,
it cannot be said that policy decision of the Government is
unjustifiable. The policy decision was taken and rule was
amended in order to ensure black-marketing of sand and ensure
uniform pricing of sand in the entire State of Telangana. Thus, no
interference may be made.
19. No other point is pressed by learned counsel for the parties.
20. We have heard the learned counsel for the parties and
perused the record.
FINDINGS:
21. By and large the grievance put forth in these Writ Petitions is
same qua above four cases, although a different provision is called
in question. Pertinently, 'no grounds' are pleaded separately in
these Writ Petitions as well.
22. As noticed above, a rule cannot be interfered with and
declared unconstitutional unless specific grounds are pleaded {see
Manjurani Routray (supra)}. The test laid down by the Apex
Court in Manjurani Routray (supra) is equally applicable to the
instant case. Learned counsel for the petitioners could not make
out a case on the strength of which the impugned rule can be
declared as ultra vires. Thus, we find no reason to interfere with
the impugned rule and the petitions are liable to be dismissed.
23. Resultantly, all the Writ Petitions are dismissed. There
shall be no order as to costs. Miscellaneous applications, if any,
shall stand closed.
___________________
SUJOY PAUL, ACJ
___________________
RENUKA YARA, J
12th March, 2025.
TJMR
