IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE SECOND DAY OF MAY TWO THOUSAND AND EIGHT PRESENT HON'BLE THE CHIEF JUSTICE SRI ANIL R. DAVE And HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT APPEAL No.237 of 2008 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 12/12/2007 in W.P.No.2806 OF 2007 on the file of the High Court) Between: 1. M/s. Shiva Granites, Rep by its Proprietor, Sri P. Babu Prasad Reddy, R/o. 17-131, Pooniamam Koil Street, Chittoor Town, Chittoor District. 2. Director of MInes & Geology, B.R.K.R. Building, 8thFloor, Tank Bund Road, Hyderabad. 3. Assistant Director of Mines & Geology, Chittoor Town, Chittoor District. 4. M/s. Shiva Granites, Rep. byits Proprietor SRi P. Babu Prasad Reddy, S/o. Sri P. Ramakrishna Reddy, Aged 45 Years, R/o. 17- 131, Pooniamam Koil Street, Chittoor Town, Chittoor District. ... APPELLANT AND 1 Sri C. Ram Kumar, S/o. Late Sri C.Sriramulu, Tirumala Granites & Exports Aged 47 Years, R/o. 14/388, Sangampet, kadapa Town, Kadapa District. 2 The Nodal Officer, Chief Conservator of Forests (FCA) APHB Complex, MJ Road, Abids, Hyderabad. 3 Director of Mines & Geology, BRKR Buildings, 8th Floor, Tank Bund Road, Hyderabad. 4 Assistant Director of Mines and Geology, Chittoor Town, Chittoor District. ...RESPONDENTS Counsel for the Appellant: Mr. B.S. REDDY Counsel for Respondent No.1: Mr. Vilas Afzal Purkar Counsel for Respondent No.2: GP FOR FORESTS Counsel for Respondent Nos.3 & 4: GP FOR MINES & GEOLOGY The Court made the following: Judgment: (Per Hon’ble Sri Justice R. Subhash Reddy) This writ appeal, under Clause 15 of the Letters Patent, is filed by the fourth respondent in the writ petition, aggrieved by the order of the learned single Judge, dated 12-12-2007, passed in W.P.No.2806 of 2007. 2. The appellant and the first respondent herein were the applicants for grant of quarry lease for extraction of black granite stone in an area of 5.00 hectares in Compartment No.213 of Padarami Reserve Forest, Chittoor West Division, Chittoor District. 3. At first instance, application was filed by the first respondent on 17-07-2001 prior to coming into force of the Forest (Conservation) Rules, 2003 framed under Section 4 of the Forest (Conservation) Act, 1980. The appellant herein filed an application, after the aforesaid Rules came into force, before the Nodal Officer and the same was received in the office of the Nodal Officer on 05-11-2003. The Rules framed for grant of quarry lease provide priority for the first applicant, i.e. a person who applies first. The first respondent herein had, at earlier point of time, filed W.P.No.2254 of 2006 seeking Mandamus to declare the action of the respondents 1 to 4 therein in not processing his application, for prior approval for grant of quarry lease, alleging that in spite of his application dated 17-07-2001, for grant of quarry lease, the application of the appellant herein was being considered. This court, by order dated 30-10- 2006, disposed of the said writ petition with a direction to the Principal Chief Conservator of Forests to make an enquiry and to pass appropriate orders in accordance with law after calling records from the departments concerned and after affording an opportunity to both the applicants. In compliance of the said directions, the Principal Chief Conservator of Forests, who is the Nodal Officer, passed orders dated 10-01-2007 declaring that the application filed by the appellant herein holds priority over the application filed by the first respondent. The said declaration was made primarily relying on the order of this court dated 23-01-2006, passed in W.P.No.14986 of 2005, in M/s. Raghuram Minerals and Granites, and also by recording a finding that the first respondent failed to demarcate and locate the applied area, on the ground. The said order dated 10-01-2007, was communicated by covering letter dated 16-01-2007 issued in Rc.No.43418/2003/F-2, to the appellant, first respondent and other parties concerned. 4. When the Nodal Officer passed orders dated 10-01-2007, declaring that application filed by the appellant herein holds priority over the application of the first respondent herein, the first respondent filed another writ petition before this court in W.P.No.2806 of 2007. The learned single Judge, by the impugned order, allowed the writ petition and remitted the matter for fresh consideration by the Chief Conservator of Forests, who is the Nodal Officer. The learned single Judge recorded a finding that the basis of the impugned order is on an erroneous ground and based on a decision, which is clearly distinguishable on facts. 5. Heard Sri D. Prakash Reddy, learned senior counsel for the appellant, Sri Vilas Afzal Purkar appearing for the first respondent and also learned Government Pleaders for Forest and Mines and Geology for respondents 2, 3 and 4. 6. It is submitted by the learned senior counsel for the appellant that though the first respondent herein made an application for extraction of black granite on 17-07- 2001, before the Assistant Director of Mines and Geology, he did not come forward to locate the area on the ground. It is further submitted that it is not known whether the said application was received in the office of the Nodal Officer as per the new Rules under the Forest (Conservation) Act, 1980, which came into force with effect from 10-01-2003. As much as the only valid application before the competent authority was that of the appellant, which was received in the office of the Nodal Officer on 05-11-2003, the Nodal Officer, i.e. the Principal Chief Conservator of Forests, has correctly passed the order impugned in the writ petition by recording a finding that the application of the appellant holds priority over the other application. It is submitted that the learned single Judge, without recording valid reasons, allowed the writ petition and remitted the matter for fresh consideration. 7. On the other hand, it is submitted by Sri Vilas Afzal Purkar, learned counsel for the first respondent, that as much as the application of the first respondent was earlier than that of the appellant and as no orders of rejection were passed, the same has to be considered with reference to the clarification issued by the Government of India, Ministry of Environment and Forests, dated 15/16-12-2003. It is submitted by learned counsel that in the said memo, Government of India has clarified that any application which was filed prior to coming into force of the new Rules with effect from 10-01- 2003, should be considered as an application in pipeline and is to be processed, but, however, without extending the benefit of such clarification issued by the Government, the Nodal Officer has passed orders declaring that the application of the appellant herein holds priority over the application of the first respondent. It is further submitted that as the Nodal Officer has not taken into account relevant aspects into consideration and recorded a finding mainly relying on the judgment of this court in W.P.No.14986 of 2005, the learned single Judge rightly remanded the matter to the competent authority for fresh consideration. It is also submitted by the learned counsel that though several reasons are sought to be supplemented in support of the plea of the appellant, such reasons are not recorded in the impugned order and as such it is not permissible to put forth such grounds at this stage, which are not recorded in the impugned order. Learned counsel, in support of his argument, relied on the judgment of the Supreme Court in the case of Mohinder Singh Gill and Anr. V. The Chief Election Commissioner, New Delhi. 8. It is not in dispute that the first respondent herein had submitted application for grant of quarry lease for the same area for which the appellant herein had also applied. The first respondent submitted his application to the Assistant Director of Mines and Geology, on 17-07-2001. It is also not in dispute that the area for which the applications were made is in the reserve forest covered by the provisions under the Forest (Conservation) Act, 1980 and the Rules made thereunder. The Rules in G.S.R.23(E) dated 10-01-2003 framed under Section 4 of the Forest (Conservation) Act, 1980, were framed in supersession of the Forest (Conservation) Rules, 2003, which came into force from 10-01-2003. In terms of the said Rules, every user agency, who wants to use any forest land for non-forest purposes, shall make its proposal in the relevant pro forma appended to the Rules, i.e. under Form-A, seeking first-time approval under the Act and Form-B for proposal seeking renewal of leases, where approval of the Central Government under the Act had already been obtained, to the Nodal Officer. 9. We have perused the order impugned in the writ petition dated 10-01-2007 passed by the Nodal Officer as well as the findings recorded by the learned single Judge. 10. While recording various contentions of the parties and while considering the application of the appellant and the first respondent herein, pursuant to earlier directions of this court in W.P.No.2254 of 2006, the Nodal Officer, who is the Principal Chief Conservator of Forests, decided the said applications mainly relying on the judgment of this court in W.P.No.14986 of 2005. In the impugned order, learned single Judge has recorded a finding that the judgment referred above is distinguishable on facts in comparison to the facts of this case. As much as the very application of the petitioner was subsequent to coming into force of the new Rules, the judgment of this court in W.P.No.14986 of 2005, in the case of M/s. Raghuram Minerals and Granites, is not of much avail to decide the issue in the instant case. In that context, we too share the same view as that of the learned single Judge. Though it is recorded by the Nodal Officer that the first respondent herein failed to demarcate and locate the applied area on the ground, but, however, it is the case of the first respondent that as the application was filed in the year 2001 before coming into force of the new Rules under the Forest (Conservation Act), 1980, his application has to be processed giving priority to him, in the light of the clarificatory orders issued by the Government in the memo referred above. It is submitted that as much as the applications were not being processed in the light of the new Rules that came into force with effect from 10-01-2003, clarification was issued by Government of India to the effect that the applications which are filed earlier to the coming into force of the new Rules shall be considered as applications in the pipeline, so as to process further. Though it is recorded in the order of the Nodal Officer that the first respondent failed to demarcate the area, but, however, he has not taken into account several other important aspects before recording a finding that the application made by the appellant herein holds priority over the application of the first respondent herein. Though it is stated in the order of the Nodal Officer that in spite of notice issued by the authorities concerned the first respondent failed to respond to the same to locate the area applied, but, however, as no finding is recorded whether the first respondent is entitled to have the benefit of the circular referred above, in absence of not complying the objections raised by the departmental authorities, it is a matter which requires reconsideration. Though it is submitted by learned counsel for the appellant that the application of the first respondent cannot be considered as one that is in the pipeline, but, however, as the competent authority has not dealt with the aforesaid aspect and also did not take into account the effect of the memo dated 15/16-12-2003, we are in agreement with the view taken by the learned single Judge in remanding the matter for fresh consideration by the Principal Chief Conservator of Forests. 11. For the foregoing reasons, the writ appeal is dismissed. However, it is clarified that the competent authority, i.e. the Chief Conservator of Forests shall decide the priority claim of the appellant as well as the first respondent afresh, on its own merits, uninfluenced by any of the observations made by the learned single Judge or in this order. There shall be no order as to costs. ___________________ ANIL R. DAVE, CJ. May 2, 2008 MRR _________________________ R. SUBHASH REDDY, J.