THE HON'BLE SMT JUSTICE T.MEENA KUMARI and THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL Nos.: 727 of 2007 And 728; 729; 761; 762 AND 763 OF 2007 COMMON JUDGMENT: ( Per the Hon’ble Smt Justice T.Meena Kumari) 1. The present writ appeals have been filed challenging the common order dated 31ST day of August 2007 passed by a learned single Judge of this Court, in W.P. Nos. 9723, 14116, 14818 of 2007, which were filed to declare that the G.O.Ms. No. 151, Industries and Commerce (M-III) Department, dated 18.6.2007, in granting mining leasehold rights in favour of respondents 9 & 10 is arbitrary , illegal, null, void, malafide and is in violation of principles of natural justice and the provisions of Mineral Concession Rules 1960, G.O.Ms. No. 181 and is consequently liable to be set aside in the interest of justice and also prayed that the consequential Memo No. 491/M.III(1)/2007-42 dated 18.6.2007 issued by 1st respondent is illegal, arbitrary and to suspend both the G.O and also the Memo directing the respondents not to lift the already extracted 29,700 Metric Tonnes of Iron Ore Mineral lying in the land admeasuring 231 acres in Sy. Nos. 1 and 2 of Malpanagudi village, D. Hirehal Mandal, Anantapur District ; (WP 9723/07)- to issue a direction calling for the records relating to the order bearing No. 18322/MIII (1)/05-1 dated 10- 11-2005 provisionally granting a mining lease over an extent of 68.52 Hectares in Sy Nos. 1 and 2 of Malapanagudi village in erstwhile Rayadurg Taluk, Anantapur District in favour of 4th respondent and also the decision of granting a mining lease over an extent of 25 Hectares in favour of the 5th respondent as being illegal , arbitrary and to quash the same and consequently stay all further proceedings pursuant to the order dated 10-11-2005 issued by 1st respondent in respect of the lands covered by the said order by directing the respondents to forthwith consider the applications of the petitioners dated 15-1-2005 and pass necessary orders in the interest of justice. 2. W.A. No. 727/2007 is filed by M/s. Obulapuram Mining Corporation against the order passed in W.P.No.14116/2007 filed by Tapal Syam Prasad questioning G.O.Ms. No. 151 dated 18.6.2007, seeking hereditary rights. W.A. No. 728 of 2007, is filed by OMC against the order passed in W.P.No.14818 of 2007 filed by M/s. Tapal Timmappa & sons questioning G.O.Ms No.151 dt. 18-6-2007, and also to direct the respondents not to lift the already extracted 29700 Mt Tonnes of iron ore (rejected). W.A.No. 729 of 2007 is filed by OMC against W.P. No. 9723 of 2007 filed by Tapal Timmappa & sons questioning the Rule 22 (4) & order dated 10-11-2005 i.e., recommendation memo/provisional grant (allowed). W.A.No. 761 of 2007 is filed by the Government against W.P.No. 14818 of 2007 ; W.A.No. 762 of 2007 is filed by the Government against W.P.No. 9723/2007 and W.A.No. 763/2007 is filed by the Government against W.P. No. 14116/2007. 3. Since all these appeals arise out of a common order passed by the learned single Judge of this court, they are heard together and disposed of by a common judgment. 4. The appellant in W.A No. 727/2007 is the respondent No.9 in W.P. No. 14116 of 2007. The parties are referred to with their original status as they were arrayed in the writ petitions for the sake of convenience. 5. The facts as stated in the respective affidavits filed in support of the writ petitions, as noted in the common order of the writ petition, are reproduced hereunder. a) The facts, in brief, as pleaded in the affidavit filed in support of W.P.No.14116 of 2007 are as under : b) 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 the concerned Collector granted permission 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 to be 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 lessee in possession. The petitioner was intimidated including criminal trespass of his house, and all the documents and papers including the correspondence with the 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 First Class 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. c) 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 several requests made by the petitioner, the 4th respondent did not furnish the details of the status of the petitioner’s application. d) 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, he made applications to the 2nd respondent – Director of Mines & Geology -and also the 4th respondent seeking information in respect of the status of his 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 under constant pressure and there was also a threat of forcible dispossession from the mining leased area by the official 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. e) 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 is filed seeking a declaration that G.O.Ms.No.151, dated 18-6-2007 ingranting 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 : f) 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 16-5-1957 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 the 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 interim order dated 24-11-2006 in WPMP.No.31274/2006 directed 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. g) While so, the 6th respondent - Director of Mines & Geology – had recommended grant of mining lease in favour of 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. h) 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 of 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. i) While the said writ petition is pending, the 1st respondent issued a 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 a 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. j) 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 : k) 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. L) The other respondents did not choose to file counter-affidavits though their respective Counsel made their submissions opposing the writ petitions. m) 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. n) 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, recommended 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. o) 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. 6. The main controversy revolved around the issue in the writ petition is that granting of mining lease in favour of respondent No.9 being the appellant herein to an extent of Ac 68.52 Hect., for a period of 20 years by the Government of A.P. A notification was got published on 12.7.2004 as per the provisions of Rule 59(1)(a) & (ii) of Mineral Concession Rules 1960. In the said notification it was declared that 231 acres of land situated in Sy.No.1 and 2 of Malpanagudi village of Anantapur District is available for re-grant of a mining lease after expiry of 30 days from the date of publication of the notification. Pursuant to the said notification, according to the petitioner in W.P.No. 14116 of 2007, he 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. In pursuance thereof, 9th respondent in WP No.14116 & 14818 of 2007 also made an application for grant of mining lease over an extent of 231 acres. Originally one Tapal Thimmappa was granted a mining lease for iron ore over the above specified area in Sy.Nos. 1 and 2 of Malapanagudi village, D. Hirehal Mandal, Aanthapur District on 16-8-1955 for a period of 50 years which came to an end on the death of Tapal Thimmappa on 15-5-1977. The Government of A.P., by order dated 10.11.2005 provisionally proposed to grant a mining lease in favour of 9th respondent over an extent of 68.52 hectares for a period of 20 years subject to prior approval by the Government of India and subsequently 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 9th respondent vide GOMs No.151, Industries and Commerce (M-III) Department, dated 18.6.2007. Aggrieved by the grant of mining lease in favour of respondent No.9, the writ petitioner who is said to be the grand son of one late Tappal Timmappa for the area of 231 acres of Malapanagudi village in Anantapur District along with other representatives filed the impugned writ petitions questioning various actions of the government relating to the grant of mining lease and also the permissions. 7. It was contended before the learned single judge that though the petitioner has made applications, some of the applications have been rejected but the application of the petitioner was not considered and the application of respondent No.9 was considered and sent to the Central Government for approval as required under the provisions of Mining Act and the Rules framed thereunder. The Central Government has approved the proposal made by the State Government for grant of mining lease to the respondent No.9 under the guise of the compliance of all the formalities and a lease deed was also entered into between the State Government and the lessee. In pursuance thereof, respondent No.9 started functioning on the leased area. 8. It is also the main contention advanced before the learned single judge by the petitioner that the area specified in the notification falls under the area in Siddapuram village under Sy.No.1 and 2 of Malapanagudi village. But, the lease has been granted to respondent No.9 purporting to be one under the notification. It is also the main contention that the petitioner’s application has not been considered including the merits and demerits of the applicant. Without considering the other applications, the State Government has recommended the application of respondent No.9 to the Central Government for its approval. Accordingly, the Central Government sanctioned its approval by granting mining lease to respondent No.9. 9. Learned single Judge having gone into merits and demerits of the case found fault with the procedure followed in granting the mining lease in favour of respondent No.9 while keeping the application of the petitioner in W.P. 14116/07 pending. The learned single Judge also found fault with the official respondents by holding that the issue was prejudged in favour of the 9th respondent even before issuing the show-cause notices to the other applicants as required under Rule 26 (1) of the Rules and also found fault with the Notification dated 12.7.2004 on the ground that the notification is defective and not in conformity with the provisions of sub-section (4) of Section 11 of the MM(D&R) Act. Holding as above, the learned single Judge set aside the Notification dated 12-7-2004 as well as the orders of the 1st respondent dated 10-11-2005 and 18.6.2007 in granting mining lease in favour of respondent No.9. Aggrieved by the said order, the present writ appeals have been filed. 10) The main contention urged in the writ appeal by the appellant is that they have raised a preliminary objection as to the maintainability of the writ petition and also on merits in WP No.14116 of 2007 and W.P. No. 14818 of 2007 and the learned counsel for the appellant vehemently argued that the respondents have chosen to argue only