ORDER
V.V.S. Rao, J.
1. The petitioner was the successful bidder in an auction conducted by respondents 2 and 3 for leasing out and reaches of 'Panchalingala, Nidjur and E. Thandrapadu' villages of Kumool Mandal. These sand reaches are located in river Tungabhadra, the main source of drinking water for a million residents of Kumool town. After accepting the offer of the petitioner at Rs. 1,15,20,000/-, the 3rd respondent entered into a lease agreement in Form GI appended to A.P. Minor Mineral Concession Rules, 1966 ('the Rules' for brevity). As per Clause (4) of the lease deed, the lease is for a term of the one year from 21-5-2001 to 20-5-2002. The lease is coming to an end by about 3 weeks time from now.
2. There is an acute water shortage in Kurnool town for various reasons including the non-co-operation of the State of Karnataka in releasing the A.P. State's share of water as well as the pilferage of water by some of the farmers of Karnataka whose lands were situated near or abutting the river Tungabhadra and the river course. Therefore, the 2nd respondent sent a SOS message dated 8-4-2002 to the 1st respondent. The Government of A.P. Panchayat Raj and Rural Development Department issued orders vide G.O.Rt No. 555 dated 9-4-2002 imposing ban on the lifting of sand from Tungabhadra river in and around Kurnool Mandal till further orders in public interest. The Government did so, for, because the quarrying in sand reaches of Kurnool Mandal is adversely affecting the ground water potential in the area. The District Collector, the 2nd respondent herein issued yet another proceedings being Roc.No. 3860/pts., A1/99 dated 10-4-2002 cancelling the sand quarrying rights of the petitioner. The District Collector, inter alia mentions that the petitioner has violated the conditions of lease viz., Rule 9(N) of the Rules as amended by G.O.Ms.No. 1, Industries and Commerce (M1) Department dated 1-1-2001 by transporting sand from the quarry by opening new ramps and paths near villages of Joharapuram, Roja Darga and Mamidalapadu and also alleges that the petitioner issued unauthorized transit bills thereby selling unaccounted sand without paying the seigniorage fee which causes financial loss to the Government. Assailing the Government Order as well as the Collector's proceedings, the present writ petition is filed.
3. The matter was listed before my learned brother Justice N. V. Ramana on 16-4-2002. Today, when the matter is listed, the Secretary to Government in Panchayat Raj Department has filed an affidavit justifying the ban imposed by the Government as well as the cancellation of the lease by the District Collector.
4. The Secretary to Government in the counter-affidavit states that as per the National Water Policy, 2001, the planning and operation of river systems also include the priorities for water allocation viz., drinking water, water for irrigation, Hydro-power, Ecology, Agro Industries and non-agricultural industries, Navigation and other uses. Keeping this in view and also in order to tackle the serious and grave drinking water problem faced by the residents of Kurnool Municipal Corporation and the adjoining villages, the Government was constrained to resort to drastic measures including prohibiting quarrying of sand in Tungabhdra river. In support of this and in justification of imposing ban on sand quarrying, the following factors are projected in the counter-affidavit.
1. The water supply schemes of Kurnool Municipal Corporation completely depend on surface and subsurface waters of Tungabhadra river.
2. Sand reaches are called saturated zones. The nature of the saturated zones is that it retains the water, which flows over or through the sand.
3. The rate of water retained in the sand is about 120 ltrs.,/cum.
4. A lorry carries a load of sand at the rate of 9 cum. At this rate if one lorry load of sand is lifted, there will be loss of 1080 litres of water.
5. It is observed that lorries and tractors nearly 4000 in a number (approx) lift sand from Thungabhadra river in these areas, every day. The loss of water at this rate will be 4000 x 9 cum., x 120 ltrs = 4.32 million litres.
5. Any further reference to the counter which is now part of the record would be superfluous for Sri E. Manoher, the learned senior Counsel appearing for the petitioner admits that there is a grave situation prevailing in the supply of drinking water to the residents of Municipal Corporation. The learned senior Counsel, however, would submit that under the lease, the petitioner, though was given lease for a period of one year till 20-5-2002, in accordance with Rule 9-B(1) of the Rules, the petitioner is entitled for a renewal for the second year. He also placed reliance on a communication issued by the 2nd respondent on 11-5-2001 wherein it was categorically mentioned that the bid knocked down in favour of the petitioner is confirmed for a period of two years with an yearly lease amount enhancement of 10%. He would therefore submit that the orders passed by respondents 1 and 2 ignoring the rules and also giving a go bye to the principles of natural justice are bad and are liable to be set aside. On merits, he would further contend that except in the reach falling in Nidjuru, the gravity of the problem in 'Panchalingala' and 'E. Tandrapadu' villages would not furnish sufficient material for the Government to arrive at a decision that there should be a total ban on sand quarrying in Tungabhadra river in the jurisdiction of Kurnool Mandal. Lastly, the learned senior Counsel would submit that the impugned order of the Collector dated 10-4-2002 is without jurisdiction and Rule 9V does not permit the Collector to cancel the lease.
6. The learned Additional Advocate General Sri Ramesh Ranganadhan refutes the contentions of the learned senior Counsel for the petitioner. He would submit that all relevant issues were considered by the Government before arriving at a decision to impose ban on the sand quarrying and therefore there is no irrationality in the whole matter. He would also submit that as on today, the release of water by the State of Karnataka into Tungabhadra so as reach Kurnool is a mirage and therefore the entire residents of Kurnool are facing acute shortage of water which needs to be tackled on all fronts.
7. The question that falls for consideration is not whether the action of respondents 1 and 2 in bringing the lease between the Government and a citizen to an abrupt end is valid. The question, in a case of this nature, is whether this Court as sentinel qui vave can ignore the fundamental right of the citizens under Article 21 and give effect to the fundamental right of the petitioner under Article 19(1)(g) to carry on the lease which is admittedly valid only upto 20-5-2002 It is also necessary to advert to the two submissions made by the learned senior Counsel for the petitioner as well.
8. On the question of jurisdiction of the District Collector, I am afraid, I cannot agree with the learned senior Counsel. It should be remembered that under Section 18 of the Mines and Minerals (Development and Regulation ) Act, 1957 (the MMRD Act, for brevity) it shall be the duty of the State Government and the Central Government, to allow the development of minerals having regard to all aspects of environment and ecology.
9. In this connection, I may also refer to the National Mineral Policy, 1993 which has application for both Non-Fuel and Non-Atomic Minerals. The policy also deals with the question of environment protection and lays down the policy guidelines as under:
7.13 Mineral Development and Protection of Environment:
7.13.1 Extraction and development of minerals are closely interlinked with other natural resources like land, water, air and forest. The areas in which minerals occur often have other resources presenting a choice of utilization of the resources. Some such areas are ecologically fragile and some are biologically rich. It is necessary to take comprehensive view to facilitate the choice or order of land use keeping in view the needs of development as well as needs of protecting the forests, environment and ecology. Both aspects have to be properly coordinated to facilitate and ensure a sustainable development of mineral resources in harmony with environment.
7.13.2 Mining activity often leads to environmental problems like land degradation particularly in open cast mining, land subsidence in under-ground mining, deforestation, atmospheric pollution, pollution of rivers and streams, disposal of solid wastes, etc., affecting the ecological balance of the areas. Open cast mining in areas with actual forest cover leads to deforestation. Prevention and mitigation of adverse environmental effects due to mining and processing of minerals and repairing and revegetation of the affected forest area and land covered by trees in accordance with the prescribed norms and established forestry practices shall form integral part ofmine development strategy in every instance.
Mining operation shall not ordinarily be taken up in identified ecologically fragile and biologically rich areas. Strip-mining in forest areas should as far as possible be avoided and it should be permitted only when accompanied with comprehensive time-bound reclamation programme. No mining lease would be granted to any party, private or public, without a proper mining plan including the environmental management plan approved and enforced by statutory authorities. The environmental management plan should adequately provide for controlling the environmental damage, restoration of mined areas and for planting of trees according to the prescribed norms. As far as possible, reclamation and afforestation will proceed concurrently with mineral extraction.
7. 13.3 Efforts would be made to convert old disused mining sites into forests and other appropriate forms of land use.
10. In this context, I may also refer to a decision of a Division Bench of this Court to which I was a member in A. Sivaramakrishna v. The Director of Mines, ILR (2001) 2 AP 380 (DB), wherein it was held that the National Mineral Policy, 1996 is equally applicable to leases given for mining the minerals too. The Division Bench laid down thus:
in view of the declaration contained in Section 2 of the Mines and Minerals (Regulation and Development) Act, 1957, the National Mineral Policy, 1993 Guidelines are equally binding on the State Government as well as all the authorities enforcing the A.P. Minor Mineral Concession Rules.
11. Further, it is yet settled by catena of decisions that right to clean drinking water is a fundamental right under Article 21 of the Constitution. A reference may be made to the decision of the Supreme Court in Subhash Kumar v. State of Bihar, : [1991]1SCR5 , State of Karnataka v. State of A.P. (Allmati case), : AIR2000SC3751 , Narmada Bachao Andolan v. Union of India, : AIR2001SC1560 . While reiterating that the fundamental right to life under Article 21 of the Constitution of India includes right to enjoyment of pollution free air and water the Supreme Court in Subhash Kumar's case (supra) observed as under:
Right to life is a fundamental right under Article 21 of the Constitution of India and it includes the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.
12. In Allmati 's case (supra) His Lordship Justice Sethi in paragraph 178 (of SCC) has held that right to water is right to life and therefore a fundamental right. In Narmada Bachao Andolan case (supra) His Lordship Justice B.N. Kirpal in the majority judgment laid down that:
Water is the basic need for the survival of human beings and is part of the right to life and human rights as enshrined in Article 21 of the Constitution of India, and can be served only by providing source of water where there is none. The resolution of the UNO in 1997 to which India is a signatory, during the UN Water Conference resolved unanimously inter alia as under:
'All people whatever their stage of development of their social and economic conditions have the right to have access to drinking water in quantum and of a quality equal to their basic needs'
13. Therefore under the Constitution the role of the State Government to provide every citizen with adequate clean drinking water and to protect water from getting polluted and depleted is not only a fundamental directive principle in the governance of the State, especially Articles 38 and 47, but is also fundamental right of every citizen to have adequate drinking water.
14. A Division Bench of this Court, to which I was a member in P.R.Subas Chandran v. Government of A. P., : 2001(5)ALD771 (DB), has referred to various judgments of the Supreme Court and held that State is constitutionally bound to take all measures to ensure adequate supply of drinking water to all the citizens. In P.R. Subas Ghanaian's case (supra) the Court was dealing with the question of supply of potable water to fluorine infected areas in Nalgonda District and this Court after referring to various principles of law held that so as to ensure the life of the people, it is even open to the State to evict the people from villages where fluorine content in water is far in excess of the permissible limits.
15. In Narmada Bachao Andolan s case (supra) the Supreme Court emphasised that water being the basic need for survival of human beings, the fundamental and human right to water under Article 21 can be served only by providing source of water where there is none and that all the people have right to have access to drinking water in quantum and of quality equal to the basic needs. Therefore, it is well settled that it is the fundamental right of every citizen to have adequate water for drinking purposes and it is the basic Constitutional fundamental duty of the State Government to ensure the supply of drinking water. Further, the directive principles in Articles 38, 39 and 47 assign a positive role to help people realise their rights and needs, The Roman Law principle 'salus populi est suprema lex'
(welfare of the people is paramount law) is the abiding all pervasive perambular faith of the Constitution of India. The Public Trust Doctrine is now part of Indian Constitutional Law. In M.C. Mehta v. Kamalnath, : (1997)1SCC388 , the Apex Court categorically ruled that the doctrine of Public Trust demands the sovereign to protect and regulate all environmental aspects of water and land, and therefore, there cannot be any doubt that the State is not only bound to regulate water supply, but should also help realise the right to healthy water and prevent health hazards.
16. In the background of these settled principles of Constitutional law, I may consider two main questions raised by the learned senior Counsel. Insofar as the power or jurisdiction of the District Collector is concerned, Rule 9V postulates that whenever the ground water safety structure is effected due to sand quarrying by the lease holders, the District Collector concerned, shall denotify the area in consultation with the Ground Water Department and with the concerned District Panchayat Officer and the local bodies, as the case may be.
17. Sri Manohar, would submit that the power to denotify the existing sand quarry which is covered by a lease, does not include the power to cancel the lease. In my considered opinion, the power to cancel is incidental and supplemental to the power to denotify a sand quarry. While interpreting this rule, we must not ignore the purpose behind the provision enabling the Collector to even denotify a sand quarry which is covered by an existing lease. Further, a reading of the two impugned orders would show that the District Collector has consulted the Ground Water Department and Engineering Department and came to a conclusion that the sand quarrying has to be stopped to protect the drinking water resources of Kurnool Municipal Corporation till alternative storage systems are developed. The effect of allowing sand quarrying, which is not denied would be disastrous and catastrophic in an acute situation of water shortage. Be it noted, that the transport of each lorry load of sand, containing 9 cum, there is a loss of 1,080 litres of drinking water, which the sand retains. At the rate of 4000 lorry loads of sand quarrying per day there would be a water loss of 4.32 million litres per day. There is every justification, therefore, for the Collector to pass such an order in question.
18. Insofar as the submission that it is only Nidjuru village where the infiltration wells of water supply are situated and therefore banning sand quarrying in Panchalingala and E. Thandrapadu villages is irrational, it must be remembered that arbitrariness is species of irrationality which is a ground of judicial review. In matters, which require the evaluation of various factual and data inputs, merely because other alternatives would appeal to the Court, it is of no ground to render a decision or an order invalid on the ground of arbitrariness and irrationality. The opinions differ from one expert body to another expert body and from one scientist to another scientist. It is always better to leave these matters to the Government of the day, which in law is entitled to rule and govern by trial and error subject to constitutional limitations. I am, therefore, not able to agree with the submission.
19. It must be remembered that as observed by me in the beginning of this order, the public interest should prevail over the private interest, be it an ownership or be it a possessory ownership by reason of a lease. There is nothing wrong to apply the legal maxim Salus Populi Suprema lex with regard to public welfare and the Court is bound to follow the same when almost a million residents of Kurnool Municipal Corporation and the surrounding villages are suffering the shortage of drinking water and the after effects. The Court cannot be blind and deaf to ignore the same and come to the rescue of a citizen whose lease is admittedly expiring on 20-5-2002 and whose loss, if any, can always be compensated in terms of money by a common law Court for breach of lease agreement. It is axiomatic that in matters of protection of environment and ecology the Constitutional Courts being one of the three great organs of the State cannot ignore Article 48A of the Constitution of India. The Court is a protector of environment. It is for this reason the Court is entitled to examine all issues when complaints of environmental degradation are brought before it notwithstanding the principle of law the executive governs and the judiciary adjudicates.
20. Insofar as the submission that the petitioner by reason of the communication dated 11-5-2001 is entitled to have benefit of the lease for a period of two years subject to enhancing the lease amount by 10% is concerned, as on today, there is no consensus ad idem between the Government represented by the 3rd respondent and the petitioner whether or not to extend the lease in accordance with Rule 9-B(I) of the Rules. But, Sri E. Manoher, alternatively also submits that the petitioner be given an opportunity to approach the Government with necessary data giving actual and factual position in Tungabhadra river with regard to the three villages in question. There is no law, which prevents the petitioner to do so. Further, I must observe that time and again the Supreme Court, this Court and various other Courts have been warning the Government to be cautious in taking decisions which have far reaching impact on the environment and on the life of the people. The Government should also consider imposing a total ban in all the major rivers in the State of A.P. which was the policy a decade ago.
21. In the result, I see no ground to interfere and exercise discretion under Article 226 of the Constitution of India. The writ petition is dismissed. No costs.