HON’BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION Nos.28827 & 28860 of 2008 Dated: 26-04-2010 W.P.No.28827 of 2008 Between: Mandapaka Chandra Kumari. … Petitioner And The Government of Andhra Pradesh, rep. by its Secretary, Industries and Commerce Department & others. … Respondents W.P.No.28860 of 2008 Between: Madiboyana Rambai. … Petitioner And The Government of Andhra Pradesh, rep. by its Secretary, Industries and Commerce Department & others. … Respondents HON’BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION Nos.28827 & 28860 of 2008 COMMON ORDER: Both these writ petitions are filed on similar set of facts, and as common questions of law arise for consideration, they are heard together and are being disposed of by this common order. For the purpose of disposal of these writ petitions, I refer to the facts as arise in W.P.No.28827 of 2008. In the writ petition, the petitioner seeks declaration by way of Mandamus, declaring the Memo No.9375/M.II(1)/2008-1, dated 20th August 2008, issued by the 1st respondent, and the consequential order of the Deputy Director of Mines and Geology, dated 22nd of November 2008, issued in Proceedings No.4115/Q1T/2007, rejecting the application of the petitioner, dated 19th September 2007, for grant of quarry lease over an extent of 50 Hectares in Survey No.287 of Santhabommali village and Mandal of Srikakulam District, as illegal and arbitrary. By the order, dated 20th of August 2008, issued in Memo No.9375/M.II(1)/2008-1, the Government, in exercise of powers under Rule 12 (3) of the A.P. Minor Mineral Concession Rules, 1966, has ordered for grant of quarry lease for gravel and road-metal and building stone over an extent of 48.12 acres in Survey No.287 of Santhabommali village and Mandal of Srikakulam District, in favour of respondent No.4, by overlooking the priority applications of the petitioner and one other applicant by name Sri I.Venkata Siva Prasad, and by the consequential proceedings, dated 22nd of November 2008, issued in Proceedings No.4115/Q1T/2007, referring to the orders of the Government, dated 20th August 2008, issued in Memo No.9375/M.II(1)/2008-1, the application of the petitioner for grant of quarry lease, is rejected. The petitioner, an individual, has applied for grant of quarry lease for gravel and road-metal in Survey No.287, admeasuring 50 Hectares at Santhabommali village. The application was filed on 19th of September 2007. The application was referred to the Tahsildar for his report. After conducting necessary survey, the Tahsildar concerned has issued ‘No objection Certificate’, stating that land to an extent of 60 acres in the aforesaid Survey Number is vacant and is suitable for grant of quarry lease. The ‘No objection Certificate’ was issued by the Tahsildar by proceedings in Rc.No.336/2007/A, dated 3rd of April 2008, and the same is addressed to the Assistant Director of Mines and Geology. At that stage, the Assistant Director of Mines and Geology has recommended for overlooking the application of petitioner for grant of quarry lease, and also granted temporary permit to respondent No.4 for gravel, vide Memo No.16014/R1-1/2008, dated 12th May 2008. At that stage, the petitioner has filed a writ petition in W.P.No.11299 of 2008, alleging that temporary permits were being issued to respondent No.4, without considering her application. The writ petition in W.P.No.11299 of 2008 was disposed of with a direction to the respondents to consider and dispose of the application filed by the petitioner. As against the same, a writ appeal was preferred and there was an interim order in the said writ appeal, stopping the quarrying, pursuant to grant of temporary permits. At that stage, based on the recommendations of the Government, the Deputy Director of Mines and Geology, while considering the various applications, has ordered for grant of quarry lease in favour of respondent No.4 by overlooking the application of the petitioner and other applicant. In the writ petition, the orders of the Government to overlook the priority applications, and the consequential orders issued by the Deputy Director of Mines and Geology, rejecting the application of the petitioner, are questioned on various grounds. Mainly, it is the case of the petitioner that no reasons have been recorded for overlooking the application of the petitioner, as contemplated under the Rules. A reference is made to Rule 12(3) of the A.P. Minor Mineral Concession Rules, 1966, in the affidavit filed in support of the writ petition. It is also stated in the affidavit that the 4th respondent is taking steps to establish a Thermal Power Project at Kakarapalli village of Santhabommali Mandal in Srikakulam District, but the said area is a swamp area, where, large number of fishermen depend on fishing. It is the case of the petitioner that establishing such a power project in the said area, is in violation of the Wild Life Protection Act, 1972 and the competent authorities have not granted clearance for the establishment of Thermal Power Project, and in that view of the matter, the Government could not have considered for grant of quarry lease in favour of the 4th respondent by overlooking the priority application of the petitioner. It is stated that there are no special reasons recorded in the order of the Government, as such, no reasons to overlook the application of the petitioner, so as to grant the quarry lease in favour of respondent No.4. The further grievance of the petitioner is that before passing the orders by the Government in Memo No.9375/M.II(1)/2008-1, dated 20th August 2008, and the consequential proceedings by the Deputy Director of Mines and Geology, no opportunity of hearing is given to the petitioner. On the aforesaid grounds, the petitioner seeks invalidation of the orders of the Government, dated 20th August 2008, and the further orders of the Deputy Director of Mines and Geology, issued in Proceedings No.4115/Q1T/2007, dated 22nd of November 2008, rejecting the application of the petitioner for grant of quarry lease. Counter affidavits are filed by the official respondents, as well as respondent No.4 in the writ petition. The official respondents have filed the counter affidavit with the following averments : The petitioner has filed her application for grant of quarry lease in respect of gravel, road-metal and building stone over an extent of 50 Hectares in Survey No.287 of Santhabommali village and Mandal of Srikakulam District, and the said application was received on 19.09.2007. Apart from the petitioner’s application, they have received two more applications i.e. one from Sri I.Venkata Shiva Laxmi Prasad on 05.12.2007 and the application of respondent No.4 on 20th December 2007, for an extent of 52.52 Hectares. A reference is made to the Proceedings of the Mandal Revenue Officer, dated 03.04.2008, issued in Rc.No.336/2007/A, wherein, ‘No objection Certificate’ for grant of quarry lease over an extent of 60 Acres, is issued, stating that no objections are received from anybody, and the land is classified as ‘Konda Poramboke land’. It is stated that the Assistant Director of Mines and Geology, Tekkali, vide letter No.3674/Q/2007, dated 24.04.2008, has submitted the combined proposals of three applications, to take action as deemed fit for grant of quarry lease for gravel, road-metal and building stones among the applicants over an extent of 48.12 Acres in Survey No.287 of Santhabommali village and Mandal. It is averred that basing on the ‘No objection Certificate’ issued by the Mandal Revenue Officer, the Deputy Director of Mines and Geology, Visakhapatnam, sought permission from the Director of Mines and Geology for issuance of temporary permits for gravel, road-metal and building stone in favour of the 4th respondent Company. The Director of Mines and Geology, vide Memo No.16014/R1-1/2008, dated 12th of May 2008, accorded permission to the Assistant Director of Mines and Geology for issuance of temporary permits for gravel for a quantity of 5 lakh cubic metres, duly collecting advance seigniorage fee for extracting the gravel over an extent of 48.12 Acres in Survey No.287 of Santhabommali village, pending grant of regular lease to the 4th respondent. In the counter, a reference is made to the writ petition filed by the petitioner and also the directions issued for disposal of the application filed by the petitioner on 19.09.2007. Counter further state that the Director of Mines and Geology, Hyderabad, has submitted a detailed report to the Government, basing on the detailed report submitted by the Deputy Director of Mines and Geology, Visakhapatnam, vide proceedings, dated 2nd of May 2008, in respect of the three quarry lease applications for consideration over an extent of 48.12 Acres in Survey No.287 of Santhabommali village and Mandal of Srikakulam Djistrict. Based on the recommendations, the Government, vide Memo No.9375/M.II(1)/2008, dated 20th August 2008, passed orders in exercise of powers under Rule 12(3) of the A.P. Minor Mineral Concession Rules, 1966, directing the Deputy Director of Mines and Geology, Visakhapatnam, for grant of quarry lease in favour of respondent No.4 by overlooking the priority applications of petitioner and another applicant by name Sri I.Venkata Siva Laxmi Prasad. In the counter, it is stated that prior to the submission of proposals to the Deputy Director of Mines and Geology, Visakhapatnam by the 4th respondent, a letter, dated 29th of March 2008 was submitted by the 4th respondent, stating that they intend to construct 2640 Mega Watt Thermal Power Station at Kakarapalli village of Santhabommali Mandal in Srikakulam District and that the applied mineral of gravel, road-metal and building stone will be required for improvement and development of storm water drains around the proposed site, otherwise, about 6000 Acres of fields owned by the farmers of the nearby villages will be inundated due to rainfall. It is further stated that setting up of the project in the said region will provide direct and indirect employment to thousands of people, which will contribute to the economic upliftment of the region, having regard to the mammoth investment of about Rs.11,075 Crores. A statement filed by the 4th respondent is also referred to, wherein, they have stated that they require gravel to the tune of 13,50,000 cubic metres and Building stone of 9,90,000 cubic metres and sand of 1,20,000 cubic metres for improvement and development of storm water drains around the proposed site. It is stated in the counter affidavit that based on such a representation filed by the 4th respondent, after taking prior permission from the Director of Mines and Geology, temporary permits for gravel for a quantity of 67,000 cubic metres was issued by collecting the seigniorage fee of Rs.13,40,000/-. With reference to the application of the petitioner, it is stated that though the petitioner has applied for permission for quarrying over an extent of 50 Acres in Survey No.287, but the applicant has not submitted any specific purpose regarding consumption of gravel available in the area. The petitioner has also not produced relevant documents to show that such a large extent of area is required for her, for any captive purpose. In the counter, it is stated that the Deputy Director of Mines and Geology, Visakhapatnam, has rejected the application of the petitioner vide Proceedings No.4115/Q1T/2007, dated 22nd of November 2008 and another application of one Sri I. Venkata Siva Laxmi Prasad, vide Proceedings No.49/Q1T/2008, dated 22nd November 2008, basing on the orders issued by the Government in Memo No.9375/M.II(1)/2008-1, dated 20th of August 2008. The counter further states that the 4th respondent requires large quantity of gravel, road-metal and building stone for development of the area for construction of Thermal Power Plant at Kakarapalli village. A separate counter affidavit is filed by respondent No.4, wherein, the maintainability of the writ petition is questioned, as much as the petitioner has not availed the remedy of revision as provided under Rule 35-A of the A.P. Minor Mineral Concession Rules, 1966. In the counter affidavit, it is stated that the application of the petitioner for grant of quarry lease, is to sustain herself and to make money, whereas, the application of the 4th respondent is for formation of access road to the power project being developed by it in the land, vicinity to the subject land. In this regard, a reference is made to a judgment of the Supreme Court in Raunaq International Ltd. Vs. IVR Construction Ltd[1]., to the following effect : “As long as an administrative or commercial decision is not fanciful, un-realistic, or irrational, it ought not to be interfered with only because, a letter or different view could have been taken. The Courts dealing with such situations, must grant some latitude to the decision making authority.” The counter further states that the application of the 4th respondent for grant of quarry lease, is for construction of its proposed Thermal Power Plant, which is a public interest project, which creates employment for more than 600 people and supports the State as well as Central Exchequer by paying huge taxes and duties. It is stated that in view of the public interest involved in the application of the 4th respondent, the application of the petitioner, which is based on personal interest, should not be preferred. With reference to the allegations of the petitioner, it is stated that the 4th respondent-Company is a special purpose vehicle, which is a joint venture of Infrastructure Finance Development Corporation (IDFC) and PTC India Private Limited, New Delhi and the 4th respondent herein. In terms of the objectives of the 4th respondent-Company, which has proposed to set up a Thermal Power Project having the capacity of 2640 Mega Watts near Tekkali of Srikakulam District, and with a view to utilize earth gravel for the purpose of formation of road and other amenities, made an application on 20th December 2007 to the Assistant Director of Mines and Geology, Tekkali, for grant of lease over an extent of 52.52 Acres in Survey No.287 of Santhabommali village. In the counter affidavit, it is stated that in response to the application filed by the petitioner as well as the 4th respondent, the 3rd respondent had taken a decision to grant regular lease in favour of respondent No.4, by overlooking the applications of others, pursuant to proceedings of the Government, dated 20th of August 2008. It is stated that the permission is granted in favour of the 4th respondent, in view of the importance of the project and the public interest involved. While making a reference to Rule 12(5) (b) of the Rules, it is stated that the Government has got power to overlook the priorities so long as the authorities acts within the fours of the Statute and no case is made out by the petitioner to interfere with the impugned orders. It is stated in the counter that the reasons recorded by the 1st respondent in the impugned order, for overlooking the application of the petitioner, are supported by the fact that the project being developed by the 4th respondent, is a public interest project. It is also stated that in the absence of any provision for affording the opportunity of hearing, the petitioner is not entitled for hearing before passing of the orders. Pleading that in view of the public interest involved, the authorities have rightly ordered for overlooking the application of the petitioner so as to award the quarry lease in favour of respondent No.4, it is stated that if the interim orders, dated 30th of December 2008, are continued, it will cause a great hardship to the 4th respondent Company. With the above said averments, respondents have prayed for dismissal of the writ petition by vacating the interim order. Heard learned counsel for petitioner Smt. N. Shoba and the learned Government Pleader appearing for respondents 1 to 3 and Sri C. Kodandaram, learned Senior Counsel, appearing for the 4th respondent- Company. With reference to the aforesaid pleadings, the learned counsel for petitioner has contended that though the petitioner is entitled for grant of quarry lease in view of her application, dated 19th September 2007, the petitioner is sought to be deprived of the same illegally and arbitrarily. It is submitted that as it is not in dispute that the application of the petitioner is earlier in point of time, than the application filed by the 4th respondent, in view of the rules framed under the Andhra Pradesh Minor Mineral Concession Rules, 1966, framed under the Mines and Minerals (Regulation and Development) Act, 1957, it is obligatory on the part of the respondents to consider the claim of the petitioner for award of quarry lease. It is further submitted that in any event, the Government has passed the impugned order in Memo No.9375/M.II(1)/2008-1, dated 20th August 2008, without recording any special reasons for overlooking the priority applications, and as such, the said order is illegal and arbitrary. It is further submitted that in any event, the rejection of the application of the petitioner by the 3rd respondent vide Proceedings No.4115/Q1T/ 2007, dated 22nd of November 2008, without conducting any inquiry and without issuing any notice, is illegal. It is submitted that as there are objections to the Power Plant, which is sought to be set up by the 4th respondent, there is no valid reason for granting prior approval by the Government for grant of quarry lease in favour of the 4th respondent, by overlooking the priority applications. It is further submitted that the Government, before issuing the orders in Memo No.9375/M.II(1)/2008-1, dated 20th August 2008, has also not given the opportunity of hearing to the petitioner. On the aforesaid submissions, it is pleaded by the learned counsel for petitioner that the impugned orders are liable to be set aside. On the other hand, it is submitted by the learned Government Pleader appearing for respondents 1 to 3, and the learned Senior Counsel Sri C.Kodandaram, appearing for the 4th respondent, that this writ petition itself is not maintainable, as much as the petitioner has not availed the alternative remedy of appeal/revision as contemplated under the A.P. Minior Mineral Concession Rules, 1966, and there is no reason for the petitioner to file the writ petition in view of the availability of alternative remedy. It is further submitted that under the scheme of the Rules, it is not obligatory to follow priority in case of every application, and as the power project, which is proposed to be set up by the 4th respondent, is involved of public interest, the Government has exercised the power conferred under the Rules for granting prior approval for grant of quarry lease in favour of the 4th respondent, by overlooking the priority of the applications. It is submitted that merely because the application of the petitioner, who is an individual, is filed at an earlier point of time, it will not confer any right on the petitioner for award of lease in her favour. It is further submitted that the orders of the Government granting prior approval is purely an administrative action, and in that view of the matter, the Government has accepted the recommendations for overlooking the priority, and granted approval for grant of lease in favour of respondent No.4, and as such, it cannot be said that no valid reasons exist for overlooking the priorities for grant of lease in favour of respondent No.4. It is further submitted that the application made by the 4th respondent for grant of quarry lease for gravel and road- metal, is for its captive consumption i.e. for formation of access road to the power project being developed by it in the land vicinity to the subject land. It is submitted that having regard to the proposed project with an investment of Rs.11,075 Crores, the Government has exercised the power under Rule 12 of the Rules by considering the public interest involved in setting up of the project, than the claim of the petitioner, who is an individual, and who has applied for grant of lease for earning money for herself. It is submitted that the thermal power plant, which is proposed with a capacity of 2640 Mega Watts, is a public interest project, which creates employment for more than 600 people and support the State as well as the Central exchequer by paying huge taxes and duties. It is submitted that in view of the power conferred on the Government as per the Rules, and in the absence of violation of any Statutory or fundamental rights of the petitioner, the petitioner has no right to claim for grant of quarry lease in her favour, merely on the ground that her application is earlier in point of time. It is further submitted that as much as the order passed by the authority is not an order in exercise of quasi-judicial power, but as the same is an order in exercise of administrative power conferred under the Rules, it is not open for the petitioner to question the same on the ground that the order itself do not contain special reasons, and as such, the petitioner herself is not entitled for the opportunity of hearing, in the absence of any provision to that effect. In support of his arguments, the learned senior Counsel Sri C.Kodandaram has placed reliance on the following judgments: 1. Union of India and others Vs. E.G.Nambudiri[2] 2. Sireesha Geo Granites Vs. Government of A.P.[3] In view of the submissions made by the learned counsel appearing for the parties, the questions, which arise for consideration in these writ petitions are, whether the order of the Government, dated 20th August 2008, issued in Memo No.9375/M.II(1)/2008-1, in which, directions were issued for grant of quarry lease in favour of respondentNo.4 by overlooking the priority of the applications, is in accordance with the Andhra Pradesh Minor Mineral Concession Rules, 1966. Another question, which falls for consideration is, whether the petitioner is entitled for any hearing before the orders are passed by the Government and before the order of the Deputy Director of Mines and Geology, dated 22nd November 2008, issued in Proceedings No.4115/Q1T/2007, rejecting the application of the petitioner for grant of quarry lease over the land in Sy.No.287, admeasuring 50 Hectares, situated at Santhabommali village and Mandal of Srikakulam District. The further question, which falls for consideration is, whether any special reasons exist for grant of quarry lease in favour of the 4th respondent herein, for overlooking the priority of the applications. It is not in dispute that the issue relates to grant of quarry lease in respect of gravel and road metal, which are minor minerals, and grant of such quarry lease, is governed by the provisions under the Andhra Pradesh Minor Mineral Concession Rules, 1966, framed in exercise of powers conferred under Section 15 (1) of the Mines and Minerals (Regulation and Development) Act, 1957. Grant of lease and disposal of the applications for such grants, is regulated by the procedure contemplated under Rules 12 and 13 of the Rules referred above. As per Rule 12 of the Rules, a quarry lease for any minor mineral (except sand, granite useful for cutting and polishing and marble) shall be granted on application, subject to the provisions of Sub-rules (2) and (3), and each of such application for grant of quarry lease shall be accompanied by Treasury or Bank challan for Rs.1,000/- in token of the remittance towards fees. The order of preferences for disposal of the applications, is governed by Rule 12 (2) of the Rules. In the instant case, it is not in dispute that the applications of the petitioner as well as the 4th respondent come within the meaning of “other applications”, under Rule 12(2)(iv) of the Rules. In that view of the matter, the relevant proviso is Proviso (5) to Rule 12(2). For the purpose of deciding the issue in the present writ petitions, it is appropriate to extract proviso (5) of Rule 12 (2), which reads as under : “Provided also that whenever more than one application falling under category (iv) above are received for grant of a quarry lease and have to be considered in the order of preference specified above, such preference shall be given to the applications according to the date of their receipt, unless the Government, for special reasons, otherwise direct and in case of applications received on the same day, the Deputy Director after taking into consideration the