IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY SECOND DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO : 3599 of 2002 Between: Krishnappa Asbestos and Barytes (Pvt) Ltd., Rep. by its Director, A. Harinath, S/o A. Thimmayya, Krishnappa Nagar, Near Railway Station, Cuddapah. ..... PETITIONER AND 1 Union of India, Rep. by its Secretary, Ministry of Mines, Sastri Bhavan, New Delhi. 2 State of Andhra Pradesh, Rep. by its Secretary, Industries & Commerce Department, Secretariat Buildings, Hyderabad. 3 Director of Mines & Geology, Government of Andhra Pradesh, B.R.K.R. Complex, Hyderabad. 4 Assistant Director of Mines & Geology, Cuddapah. .....RESPONDENTS Counsel for the Petitioner:MR.Y.VIVEKANANDA FOR MR.Y.NEELA LOHITHA SASTRY Counsel for the Respondent No.1: MISS. BALAJAYASREE, SC FOR CENTRAL GOVERNMENT FOR RESPONDENT NO.1 Counsel for the Respondent Nos.2 to 4: AGP FOR INDUSTRIES & COMMERCE The Court made the following : THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.3599 of 2002 ORDER: This writ petition is ﬁled for a Writ of Certiorari to quash orders dated 27.11.2000 and 31.12.2001 passed by respondent Nos.2 and 1 respectively. 2. Heard Sri Y.Vivekananda, learned counsel for the petitioner, learned Assistant Government Pleader for Industries and perused the record. 3. In the year 1939, the Board of Revenue of Madras State granted a mining lease for Asbestos in favour of the petitioner Company for a period of 20 years from 01.10.1939 to 30.09.1959 over an extent of 182-18 acres in Chinna Kundala, Ramanuthalapalli, Ippatla and Brahmanapalli Revenue Villages of Pulivendula Taluk. A lease deed was executed between the parties. Respondent No.2 granted renewal of mining lease for a period of 20 years from 01.10.1959 to 30.09.1979 with a reduced leasehold area to 167-38 acres. On the eve of expiry of the renewed lease period, the petitioner applied to respondent No.2 for a second renewal with a request to include Dolomite and Serpentine rock also as additional minerals in the proposed renewal. Accordingly, respondent No.2, by order dated 17.12.1979, renewed the lease for another period of 20 years from 01.10.1979 to 30.09.1999 over an extent of 51-55 acres in Sy.Nos.176 Part, 177 Part and 179 Part of Brahmanapalli village. 4. Before the expiry of lease, the petitioner made its application on 22.09.1998 for another renewal for all the three minerals. Respondent No.4, who is the competent authority to receive the renewal application, received the same. By memo No.16839/M-III-2/2000-01 dated 05.09.2000, respondent No.2 issued a show cause notice as to why the application for renewal shall not be rejected on two grounds, namely; (1) that there is a ban on grant of lease for Asbestos and (2) that the petitioner Company has not paid mineral renewal dues even though instalments were granted in April, 2000. The petitioner submitted a detailed reply to the said show cause notice. Thereafter, respondent No.2, by memo dated 27.11.2000, rejected the petitioner’s application for renewal. Questioning the said order, the petitioner ﬁled Revision petition under Rule 54 of the Mineral Concession Rules, 1960 (for short ‘the Rules’) before respondent No.1, which dismissed the said petition by its order dated 31.12.2001. Questioning these two orders, the petitioner filed this writ petition. 5. Learned counsel for the petitioner submitted that both respondent Nos.2 and 1 were under misconception that a ban was imposed on the Asbestos mining, while as a fact no order imposing such a ban was passed either by respondent No.2 or by respondent No.1. He invited this Court’s attention to Schedule-I Part C Sl.No.1 of the Mines and Minerals (Development and Regulation) Act, 1957, and submitted that unless the Act is amended by deleting the entry relating to Asbestos in Schedule- I, it is not permissible for the respondents to reject the petitioner’s application for renewal on the purported ground of existence of ban. The learned counsel also submitted that, though as a fact the petitioner was in arrears, payment for which respondent No.2 granted instalments and it committed default in payment of instalments, before the Revision petition was ﬁled before respondent No.1, the petitioner cleared of all the arrears. Learned counsel also submitted that though the petitioner speciﬁcally made a request for personal hearing, respondent No.2 failed to afford the opportunity. 6. Learned Assistant Government Pleader for Industries opposed the contention of the learned counsel for the petitioner and submitted that a ban was imposed on the Asbestos mining, and rejection of renewal on that ground cannot be said to be illegal or arbitrary. He also submitted that an opportunity of personal hearing was in fact given, as evident from the averments contained in the counter aﬃdavit ﬁled by respondent No.3. 7. A perusal of the order passed by respondent No.2 shows that the petitioner’s application for renewal was rejected only on one ground, namely; that there is a ban on the grant of leases for Asbestos mining. The other ground, namely; that the petitioner is in arrears was not made basis for rejection, though the same was mentioned in the report of the Director of Mines and Geology, which was referred in the order of respondent No.2. However, in the counter aﬃdavit of respondent No.3, this was shown as a ground. The law is well settled that the public authorities cannot supplement reasons, which are not contained in their orders, by way of subsequent aﬃdavits. [See Commissioner of Police, Bombay v. Gordhan Das Bhanji (AIR 1952 SC 16) and Mohinder Singh Gill v. Chief Election Commissioner (AIR 1978 SC 851) ]. 8. As regards the ground relating to ban, at the hearing, the learned Assistant Government Pleader produced before me a copy of letter addressed by the Secretary to the Government of India on 09.07.1986, which reads as under:- “The hazardous eﬀect of Asbestos mining on the health of the workers has been receiving the attention of the Govt. of India for quite some time. After careful consideration, it has been decided that as Asbestos mining has deleterious eﬀect on the health of the workers and exposes them to diseases like Siliocosis and Pneumoconiosis etc., non- expansion in the mining of Asbestos should henceforth be permitted. 2. Mining leases for Asbestos are granted by the State Govts. under the Mines and Minerals (Regulation and Development) Act. Though Asbestos mining is presently concentrated only in three States, viz., Andhra Pradesh, Karnataka and Rajasthan, the possibility of location of Asbestos deposits in other states cannot be ruled out. In view of the hazardous eﬀect of the mining of this mineral on the health of the workers, I request you to take necessary measures to stop further expansion in the mining of this mineral. Necessary directions may kindly be issued to the concerned authorities, not to grant any new lease for mining Asbestos. 3. I shall be grateful if you apprise me of the action taken in the matter.” 9. In the counter aﬃdavit ﬁled by respondent No.3, he stated that on the basis of the above reproduced circular, the State Government refused to grant renewal of lease as the said circular contained ban. The learned counsel for the petitioner seriously questioned the correctness of the understanding of respondent No.3 of the above mentioned circular. According to the learned counsel, the Government of India merely requested the respective State Governments to take necessary measures to stop further expansion in the mining of asbestos mineral by issuing necessary directions to the concerned authorities not to grant any lease for mining Asbestos. The learned counsel contended that by no stretch of imagination, this circular could be construed as an order imposing ban. 10. I have carefully considered the above mentioned submission of the learned counsel for the petitioner. In the view I am taking, I refrain from expressing my ﬁnal view on this question, because the main grievance of the petitioner is that despite the petitioner making a request for granting an opportunity of hearing, respondent No.2 denied such an opportunity. In paragraph 5 of the counter aﬃdavit ﬁled by respondent No.3, he admitted that the petitioner while representing before respondent No.2 orally requested to give personal hearing, but as both the grounds were strong against the petitioner, the question of giving further hearing did not arise. In the said para, however, a mere plea was raised that the petitioner appeared before respondent No.2 and after hearing his representation, the rejection order was passed. A perusal of the order passed by respondent No.2, however, does not show that an opportunity of personal hearing was aﬀorded. A reference was, in fact, made about the petitioner’s request in the explanation given to the show cause notice, but respondent No.2 has not given any ﬁnding as to whether such a request was accepted or rejected. Under Rule 26 of the Rules, the applicant for renewal is entitled for an opportunity of hearing. Though ordinarily the expression “opportunity of hearing” is construed as not including an opportunity of personal hearing, the Courts consistently held that whenever a person requests for an opportunity of personal hearing, the authority is bound to aﬀord such an opportunity. The Courts always held the principle of audi alterem partem, as the pivotal facet of principles of natural justice. [See State of Orissa vs. Binapani Devi (AIR 1967 SC 1269) and Swadeshi Cotton Mills vs. Union of India ((1981) 1 SCC 664)]. As Respondent No.2 failed to give an opportunity of personal hearing to the petitioner, the order passed by it cannot be sustained. Consequently, the order passed by respondent No.1 in the Revision Petition also cannot be sustained. 11. For the aforementioned reasons, the writ petition is allowed. Order dated 31.12.2001 passed by respondent No.1, conﬁrming order dated 27.11.2000 passed by respondent No.2, is set aside. The matter is remitted back to respondent No.2 to consider the petitioner’s application afresh, by giving the petitioner an opportunity of personal hearing, and pass a reasoned order within a period of three months from the date of receipt of a copy of this order. _______________________ C.V.NAGARJUNA REDDY,J 22.10.2008 v v