* THE HON’BLE Ms. JUSTICE G. ROHINI + WRIT PETITION NO.9723 OF 2007, WRIT PETITION NO.14116 OF 2007 AND WRIT PETITION NO.14818 OF 2007 % 31/08/2007 # In W.P.No.9723 of 2007 : 1. M/s. Tapal Timmappa & Sons, a partnership firm Mineral Dealers, Lingareddy Complex, 1st Cross, Gandhi Nagar, Bellary, rep. By its Partner T. Raamdas S/o. Late Sri Tapal Timmappa, 62 years Occ. Retired, R/o. Bellary, Karanataka State and 4 others. …Petitioners Vs. $ 1. State of A.P. rep. By its Secretary, Department of Industries & Commerce, Secretariat, Hyderabad., And 5 others. … Respondents # In W.P.No.14116 of 2007 : Tapal Syam Prasad, S/o. Tapal Thipareddy, 47 years, Occ: Trader, R/o. D.No.12-5-9, State Bank of India Colony, Near Housing Board, Anathapur. … Petitioner Vs. $ 1.The Government of A.P. rep. By its Secretary, Industries & Commerce, Secretariat Buildings, Government of Andhra Pradesh., Hyderabad, And 11 others. … Respondents # In W.P.No.14818 of 2007: M/s. Tapal Timmappa & Sons, a partnership firm Mineral Dealers, Lingareddy Complex, 1st Cross, Gandhi Nagar, Bellary, rep. By its Partner T. Raamdas S/o. Late Sri Tapal Timmappa, 62 years Occ. Retired, R/o. Bellary, Karanataka State. …Petitioner Vs. $ 1. State of A.P. rep. By its Secretary, Department of Industries & Commerce (M.III) Department, Secretariat, Hyderabad. And 9 others. … Respondents < Gist > Head Note: ! Counsel for the petitioner in W.P.No.14116/2007 : Sri Govardhan Venu Counsel for the petitioner in W.P.No.14818 of 2007 : Sri P.Venugopal for Sri N. V. Raghava Reddy Counsel for the petitioners in W.P.No.9723 of 2007 : Sri C. Sudesh Anand ^ Counsel for the respondents in all writ petitions : GP for Mines & Geology Sri K. Raghavacharyulu GP for Ind. & Commerce A. Rajasekhar Reddy(Asst.Solicitor Gen) Sri B. Narayana Reddy Sri S.V. Bhatt Sri V.Subrahmanyam Cases referred : [1] AIR 1995 SC 333 2 AIR 1985 SC 330 3(2007) 2 SCC 112 4 1998 (5) ALD 549 5 (1998) 8 SCC 1 6 (2003) 2 SCC 107 7 (2005) 8 SCC 264 8 (2004) 3 SCC 553 9 AIR 1961 SC 1506 10 (1996) 6 SCC 442 11 AIR 1991 SC 818 12 (2003) 9 SCC 731 13 (2003) 7 SCC 689 THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION NO.9723 OF 2007, WRIT PETITION NO.14116 OF 2007 AND WRIT PETITION NO.14818 OF 2007 Dated: 31-08-2007 In W.P.No.9723 of 2007 : 1. M/s. Tapal Timmappa & Sons, a partnership firm Mineral Dealers, Lingareddy Complex, 1st Cross, Gandhi Nagar, Bellary, rep. By its Partner T. Raamdas S/o. Late Sri Tapal Timmappa, 62 years Occ. Retired, R/o. Bellary, Karanataka State and 4 others. . …Petitioners And 1. State of A.P. rep. By its Secretary, Department of Industries & Commerce, Secretariat, Hyderabad., And 5 others. … Respondents In W.P.No.14116 of 2007 : Tapal Syam Prasad, S/o. Tapal Thipareddy, 47 years, Occ: Trader, R/o. D.No.12-5-9, State Bank of India Colony, Near Housing Board, Anathapur. … Petitioner And 1. The Government of A.P. rep. By its Secretary, Industries & Commerce, Secretariat Buildings, Government of Andhra Pradesh., Hyderabad, And 11 others. … Respondents In W.P.No.14818 of 2007: M/s. Tapal Timmappa & Sons, a partnership firm Mineral Dealers, Lingareddy Complex, 1st Cross, Gandhi Nagar, Bellary, rep. By its Partner T. Raamdas S/o. Late Sri Tapal Timmappa, 62 years Occ. Retired, R/o. Bellary, Karanataka State. …Petitioner And 1. State of A.P. rep. By its Secretary, Department of Industries & Commerce (M.III) Department, Secretariat, Hyderabad. And 9 others. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION NO.9723 OF 2007, WRIT PETITION NO.14116 OF 2007 AND WRIT PETITION NO.14818 OF 2007 COMMON ORDER : One Tapal Thimmappa was granted a mining lease for Iron ore over an area of 231 acres in Sy.Nos.1 and 2 of Malapanagudi Village, D. Hirehal Mandal, Ananthapur District on 16-8-1955 for a period of 20 years which expired on 15-5-1977. Thereafter, on 12-7-2004 a notification was published under Rule 59 (1) (a) & (ii) of Mineral Concession Rules, 1960 (for short, ‘the Rules’) declaring that the said 231 acres of land situated in Sy.Nos.1 & 2 of Malapanagudi Village was available for regrant of a mining lease after expiry of 30 days from the date of publication of the notification. In pursuance thereof, M/s. Obulapuram Mining Company (P) Limited (9th respondent in W.P.Nos.14116 & 14818 of 2007) applied for grant of mining lease on 28-8-2004 over an extent of 93.52 hectares (231 acres). The petitioner in W.P.Nos.9723 & 14818 of 2007 - M/s. Tapal Thimmappa and Sons, a Partnership Firm made an application on 15-1-2005 for grant of mining lease over an area of 40.47 hectares. The petitioner in W.P.No.14116 of 2007 also made an application on 19-4-2006 (according to the respondents on 19-4- 2007) for grant of mining lease over the notified area. Having processed the applications, the Government of A.P., by order dated 10.11.2005, provisionally proposed to grant a mining lease in favour of the 9th respondent over an extent of 68.52 hectares for a period of 20 years subject to prior approval of the Government of India under Section 5 of the Mines and Minerals (Development & Regulation) Act, 1957. Aggrieved by the said order, dated 10.11.2005, W.P.No.9723 of 2007 was filed by M/s. Tapal Thimmappa and sons along with four others. This Court ordered Rule Nisi on 1-5-2007 and while the writ petition was coming up for the counter-affidavit of the respondents, the Government of A.P., on the basis of the prior approval of the Government of India, dated 25-5-2007, passed orders granting a mining lease in favour of the 9th respondent vide G.O.Ms.No.151, Industries and Commerce (M-III) Department, dated 18.6.2007. On the same day, by a separate order, the application of M/s. Tapal Thimmappa and Sons for grant of mining lease was rejected. Challenging the said order dated 18-06-2007, M/s. Tapal Thimmappa and Sons filed W.P.No.14818 of 2007. The order dated 18.6.2007, granting a mining lease in favour of the 9th respondent has also been challenged in W.P.No.14116 of 2007 by one Tapal Syam Prasad contending that, while keeping his application dated 19-4-2007 pending, the decision taken to grant the mining lease in favour of the 9th respondent was in gross violation of the procedure prescribed under Section 11 of the Mines and Minerals (Development & Regulation) Act, 1957 (for short, ‘MM(D&R) Act’). In W.P.No.9723 of 2007 though Rule Nisi was ordered on 1-5- 2007 no counter-affidavit is filed by any of the respondents. In W.P.No.14116 of 2007 and W.P.No.14818 of 2007 the learned Government Pleader for Mines & Geology accepted notice for the Government of Andhra Pradesh and filed a detailed counter- affidavit in W.P.No.14116 of 2007 at the admission stage itself on behalf of the 1st respondent. The said counter-affidavit has been adopted in W.P.No.14818 of 2007 also by the 1st respondent – Government of A.P. On behalf of the respondent No.9 – M/s. Obulapuram Mining Company Private Limited Sri K. Raghavacharyulu, Advocate, entered appearance in W.P.Nos.14116 & 14818 of 2007 at the admission stage itself and addressed elaborate arguments raising a preliminary objection as to the maintainability of the writ petitions and also on merits. Sri K. Raghavacharyulu filed his vakalat for M/s. Obulapuram Mining Company Private Limited (respondent No.4) in W.P.No.9723 of 2007 as well, however no counter-affidavit has been filed. Similarly for respondent No.10 (A.P. Mineral Development Corporation, Hyderabad) in W.P.Nos.14116 of 2007 and 14818 of 2007, Sri V. Subrahmanyam entered appearance and participated in the hearing opposing the writ petitions. Though both the respondents 9 & 10 did not choose to file counter-affidavits in any of the writ petitions, the learned Counsel appearing for the respondent Nos.9 & 10 agreed for disposal of the writ petitions at the stage of admission since all the parties made their submissions in detail on all aspects and the original record has also been produced by the learned Government Pleader before this Court. Thus, with the consent of the learned Counsel appearing for the petitioners as well as the respondents for deciding W.P.Nos.14116/2007 and 14818/2007 at the stage of admission, these two writ petitions along with W.P.No.9723 of 2007 are heard together and since all the three writ petitions are based on the same set of facts involving common questions of fact and law, they are decided by this common order. The facts, in brief, as pleaded in the affidavit filed in support of W.P.No.14116 of 2007 are as under : The petitioner is the grand son of the original lessee – Tapal Thimmappa - who was initially granted a mining lease for iron ore over an area of 231 acres in Sy.Nos.1 & 2 of Malapanagudi Village, D. Hirehal Mandal, Ananthapur District on 16-8-1955. Pursuant to the said order a lease deed 16-5-1957 was executed in favour of Tapal Thimmappa for a period of 20 years who, having invested huge amounts, made the area fit for mining operations and extracted Iron ore and Red Oxide during the period of lease. Prior to expiry of the lease, Tapal Thimmappa made an application for renewal and was permitted by the concerned Collector to carry on mining operations on payment of royalty. Accordingly, though the lease granted in favour of Tapal Thimmapa expired on 15-5-1977, he continued in possession of the leased area and was carrying on mining operations till his death in the year 1986. Thereafter, his son Tapal Thippa Reddy i.e., the father of the petitioner herein continued in possession and extracted the minerals assisted by the petitioner. The petitioner’s father Tapal Thippa Reddy also died in the year 1991 and the petitioner who continued in possession of the leased area has been operating the mines as a tenant-holding over. While so, the 9th respondent herein through one D. Rajasekhar approached the petitioner with a proposal to enter into an agreement for transfer of leasehold rights. Pursuant thereto, an unregistered agreement was executed. However, subsequently no further steps were taken and in the meanwhile a notification dated 12-7-2004 was published under Rule 59 (1) (a) & (ii) of Mineral Concession Rules, 1960 declaring that the said 231 acres of land situated in Sy.Nos.1 and 2 of Malapanagudi village which is in possession of the petitioner is available for re-grant showing the name of the petitioner’s grandfather as the previous lessee. It is alleged that thereafter D. Rajasekhar who is none other than the brother-in-law of V.D. Rajagopal, Director of Mines & Geology, Hyderabad started threatening and harassing the petitioner so as to make him yield to their illegal demands of not insisting or pursuing the rights for the mining lease as a previous lessee in possession. The petitioner was intimidated including criminal trespass of his house, and all the documents and papers including the correspondence with Collector and the receipt of application for renewal of lease, were taken away by using criminal force on 20.9.2006. When the petitioner approached the local police on 21-9-2006 they were not inclined to receive the complaint. Upon the insistence of the petitioner, though the complaint was received on 28- 9-2006, no action was taken. Ultimately, on 26.12.2006 the petitioner has lodged a private complaint in the Court of the Additional Judicial Magistrate, Ananthapur against all the concerned for appropriate action in accordance with law. The complaint was referred to the police for investigation under Section 156(3) of Cr.P.C. pursuant to which the Ananthapur I-Town Police Station registered the Crime in FIR NO.2 of 2007 dated 5-1-2007 for offences under Sections 384, 379, 420, 426 and 448 of IPC against the said D. Rajasekhar and three other known accused including Sri V.D. Rajagopal, Director of Mines & Geology, Government of Andhra Pradesh, Hyderabad. Even prior to that on 19-4-2006 the petitioner made an application for grant of lease in response to the notification dated 12-7-2004 as an abundant measure of caution. The 4th respondent – Assistant Director of Mines & Geology, having received the said application, proposed inspection of the lands on 26-6-2007. However, in spite of the several requests made by the petitioner, the 4th respondent did not furnish the details of the status of the petitioner’s application. While so, the petitioner came to know that some of the applicants for the mining lease, pursuant to the notification dated 12-7- 2004, were served with show-cause notices as to why their applications should not be rejected. Since the petitioner was not served with any communication and his application dated 19-4- 2006 remained in suspended animation, the petitioner made applications to the 2nd respondent – Director of Mines & Geology and also the 4th respondent seeking information in respect of the status of the applications pursuant to the notification dated 12-7-2004 under the Right to Information Act, 2005. In the meanwhile, a press statement was made by the concerned Minister of Government of A.P. stating that the application of the petitioner was rejected on 18-6-2007. However, no such communication was received by the petitioner. On the other hand, the petitioner was put in constant pressure and there was also a threat of forcible dispossession from the mining leased area by the respondents at the behest of the 9th respondent through D. Rajasekhar. In the circumstances, the petitioner was constrained to file O.S.No.17 of 2007 in the Court of the Additional District Judge, Ananthapur seeking perpetual injunction against the Director of Mines and Geology and the Assistant Director of Mines & Geology on 18-6-2007 in which an interim order of status quo was granted on 20- 6-2007. In the meanwhile, the 1st respondent passed the impugned order vide G.O.Ms.No.151, dated 18-6-2007 granting lease in favour of the 9th respondent. Hence, W.P.No.14116 of 2007 seeking a declaration that G.O.Ms.No.151, dated 18-6-2007 granting mining lease in favour of the 9th respondent is arbitrary, illegal, mala fide and in violation of the principles of natural justice as well as the provisions of Mineral Concession Rules, 1960 and accordingly to set aside the same. The facts in W.P.No.9723 and W.P.No.14818 of 2007 : The petitioner in these two writ petitions is a partnership firm constituted by the children/legal heirs of late Tapal Thimmappa, the previous lessee in respect of 231 acres of area under the lease deed dated 16-5-1977 for extraction of Iron ore and Redoxide. In response to the Notification dated 12-7-2004 published under Rule 59 (1) (a) & (ii) of the Mineral Concession Rules, 1960 for re-grant of the mining lease for the said area, the petitioner firm made an application on 15-1-2005 for grant of mining lease in respect of 40.47 hectares specifically bringing to the notice of the Assistant Director of Mines & Geology that when the lease was with late Sri Tapal Thimmappa there remained about 1 lakh metric tons of low grade iron ore which could not be marketed through Minerals and Metals Trading Corporation which was the sole buying agent to the Government as low grade iron ore was not saleable at that point of time. It was also stated that since low grade iron ore dumps were existing on ground the children of late Sri Tapal Thimmappa are entitled to remove the same after paying the necessary royalty and other allied charges under the provisions of the MM(D&R) Act by getting transport permits. While the said application was still under process, one of the sons of late Sri Tapal Thimappa requested the authorities to inform whether there are any arrears outstanding. In response, the Director of Mines & Geology by letter dated 27-2-2006 informed that there were no dues. However, since the application of the petitioner for taking away the already extracted ore was not considered, W.P.No.13985 of 2006 was filed before this Court. The said writ petition was disposed of by this Court by order dated 21-7-2006 with a direction to the Assistant Director of Mines & Geology to dispose of the representation in accordance with law within a period of six weeks. Thereafter, the Director of Mines & Geology vide letter dated 23-9- 2006 informed the petitioner firm that their request for lifting the mineral was rejected. Aggrieved by the same, the petitioner firm filed W.P.No.24459 of 2006. This Court while directing Rule Nisi, by order dated 24-11-2006 passed an interim order in WPMP.No.31274/2006 directing to maintain Status Quo as on that date with respect to extraction for carting away of the major mineral in the schedule land. The said writ petition is still pending and the interim order continues to be in operation. While so, the 6th respondent - Director of Mines & Geology – had recommended grant of mining lease in favour of the respondents 9 and 10 herein over an extent of 68.52 hectares and 25 hectares respectively and pursuant thereto the Government of Andhra Pradesh vide Memo dated 10.11.2005 passed orders proposing to grant mining lease over an extent of 68.52 hectares in favour of the 9th respondent for a period of 20 years subject to prior approval of the Government of India under Section 5 of the MM(D&R) Act and also subject to obtaining forest clearance and submission of approved mining plan under Rule 22 (4) of the Rules within 6 months. Contending that the action of the 1st respondent in provisionally deciding to grant the mining lease in favour of the 9th respondent without considering on merits all other applications received in response to the Notification dated 12-7-2004 is arbitrary, illegal and contrary to the procedure prescribed under Section 11 of the MM(D&R) Act, the petitioner firm filed W.P.No.9723 of 2007 seeking a Writ of Certiorari to call for the records relating to the order of the 1st respondent dated 10.11.2005 and to quash the same. This Court by order dated 1-5-2007 directed Rule Nisi and adjourned the matter to enable the respondents to file their counter-affidavits. While the said writ petition is pending, the 1st respondent issued a show-cause notice dated 31-5-2007 calling upon the petitioner firm to show-cause within fifteen days as to why their application should not be rejected as their application is a later application and that apart their application does not have merit when compared to the application of the 9th respondent as per the criteria laid down under Section 11 (3) of the MM(D&R) Act. The petitioner firm submitted a representation dated 12.6.2007 stating that since W.P.Nos.24459 of 2006 and 9723 of 2007 filed by them are pending the show-cause notice would amount to interfering with the judicial process and therefore the proceedings proposed may be rescinded. However, the 1st respondent proceeded further and issued the impugned G.O.Ms.No.151, dated 18.6.2007 granting mining lease in favour of the 9th respondent over an extent of 68.52 hectares. On the same day, by a separate order dated 18.6.2007 the application made by the petitioner firm dated 15.1.2005 for grant of mining lease was rejected. Hence, the petitioner firm filed W.P.No.14818 of 2007 seeking a Mandamus declaring G.O.Ms.No.151, dated 18.6.2007 as well as the consequential rejection order dated 18.6.2007 as arbitrary and illegal. The petitioner also sought a direction to the respondents not to lift the already extracted 29,700 MT of Iron ore mineral lying in the land admeasuring 231 acres in Sy.Nos. 1 & 2 of Malapanagudi Village. Counter-affidavit filed by the respondents : A detailed counter-affidavit has been filed on behalf of the Government of A.P., Industries and Commerce Department in W.P.No.14116 of 2007 and the same has been adopted in W.P.No.14818 of 2007. The other respondents did not choose to file counter-affidavits though their respective Counsel made their submissions opposing the writ petitions. In the counter-affidavit filed on behalf of the 1st respondent, the plea of the petitioner that his grandfather Tapal Thimmappa continued in possession of the leased area even after expiry of the period of lease has been denied. The further plea that prior to expiry of the lease Tapal Thimmappa made an application for renewal to the then concerned Collector who issued a communication permitting him to do mining operations has also been categorically denied. It is stated that as per the records no such permissions were granted by the Government or the District Collector. It is also stated that as per the affidavit filed by the sons of Tapal Thimmappa in W.P.No.9723 of 2007 their father did not file any application for renewal. Even assuming that such an application for renewal was made by the petitioner’s grandfather, the same shall be deemed to have been refused since it was not disposed of within one year as provided under Rule 24 of the Rules. It is further stated that after expiry of lease in favour of Tapal Thimmappa in the year 1977 the leased area which is a forest land stood restored to the Government and nobody can claim to have possessed any rights over the said land without the clearance from the Forest Department under the Forest (Conservation) Act, 1980. At any rate, since the land was notified for re-grant on 12-7- 2004 and the petitioner never challenged the said notification but on the other hand made an application for lease it is not open to him to claim any right as the legal heir of the previous lessee. It is also stated that as a matter of fact the petitioner made his application on 19-4-2007 but not on 19-4-2006 as pleaded by him. By the date of the petitioner’s application dated 19-4-2007, the Government had in principle, accepted to grant mining lease in favour of the 9th respondent. However, in order to verify whether any area is still available after granting of mining lease to the priority applicants, the Department is processing the petitioner’s application. Soon after survey and inspection necessary orders would be passed on the petitioner’s application and the said fact was well within the knowledge of the petitioner. While denying the other allegation that the entire issue was prejudged and the grant of lease in favour of the 9th respondent under the impugned order was vitiated for extraneous considerations, it is contended that the impugned order which was passed duly following the provisions of the MM(D&R) Act and the Rules does not warrant interference. It is explained that the notification was published in the District Gazette, Anantapur dated 12.7.2004 inviting applications for grant of a mining lease after 30 days with effect from 12.7.2004 i.e., from 11.8.2004. Pursuant to the said notification 25 applications were received after 11-8-2004 and after processing the applications, the 4th respondent recommended for grant of mining lease in favour of the 9th respondent over an extent of 68.500 hectares and 25 hectares in favour of the 10th respondent-A.P. Mineral Development Corporation, a State Public Sector Undertaking. The remaining applications were recommended for rejection. Basing on the recommendations of the 4th respondent, the Director of Mines and Geology submitted proposals on 2.11.2005, recommending for grant of lease in favour of the respondents 9 and 10, subject to clearance under the Forest (Conservation) Act, 1980 and also obtaining the concurrence of the Government of India, since iron ore falls under the 1st Schedule. Pursuant thereto, the Government vide memo dated 10.11.2005, while accepting the proposal in principle, directed the 9th respondent to submit the approved mining plan as required under Rule 22(4) of the Rules and also the Forest clearance. After such clearance was granted and the mining plan was approved in favour of the 9th respondent the 1st respondent by letter dated 18-1-2007, sought for prior approval of the Central Government which was granted on 25- 5-2007. Thereafter, the impugned order dated 18-6-2007 was passed granting a mining lease in favour of the 9th respondent. It is also contended that in view of the alternative remedy available under Rule 54 of the Mineral Concession Rules, the petitioner cannot maintain this writ petition under Article 226 of the Constitution of India. Preliminary objection as to the maintainability of the writ petition on the ground that the petitioners failed to exhaust the alternative statutory remedy. It is not in dispute that against the impugned order dated 18-6- 2007 passed by the 1st respondent under Section 10 of the MM(D&R) Act granting lease in favour