IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE NINTH DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT: THE HON'BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.4037 of 2009 Between: K. Rabi Venkatesan, Proprietor M/s.Venkatesh Enterprises ..... PETITIONER AND The Government of Andhra Pradesh, rep. by its Secretary, Industries and Commerce Department, Secretariat, Hyderabad and two others ..... RESPONDENTS ORDER: Though the matter is coming under the caption ‘interlocutory’ at request of the learned counsel on record the writ petition itself is being disposed of. 2. Smt.N. Shoba, the learned counsel representing the writ petitioner had taken this court through the contents of the affidavit and the stand taken in the counter-affidavit and would maintain that in the light of the same the non-issuance of the transport permits to the petitioner cannot be justified. The learned Assistant Government Pleader for Mines and Geology had taken this court through the contents of the counter-affidavit and also would maintain that subsequently a show cause notice was issued and further steps are being taken. 3. Heard the learned counsel. 4. The writ petition is filed seeking to issue a writ of Mandamus, declaring the action of respondent No.3 in not issuing transport permits to the petitioner for transporting quartz in Sy.No.421/3 of Ganugapadu Village, Tiruvuru Mandal, Krishna District vide G.O.Ms.No.254, Industries and Commerce Department, dated 04-05-2000, as arbitrary, illegal, unjust and unconstitutional without jurisdiction and contrary to the Mines and Minerals (Development and Regulation) Act, 1957 and Mineral Concession Rules, 1960 and pass such other suitable orders. 5. It is the case of the writ petitioner that he was granted mining lease for quartz in over an extent of 0.959 Hects. in Sy.No.421/3 of Ganugapadu Village, Tiruvuru Mandal, Krishna District in the year 2000 for 20 years by the first respondent in vide G.O.Ms.No.254, Industries and Commerce Department, dated 04-05-2000. Lease deed was executed by the third respondent on behalf of the State on 01-08-2000 with effect from 01-08-2000 to 31-07-2020. Work orders were issued by the third respondent vide Proceedings No.4992/M/98 dated 01-08-2000. The writ petitioner had been working in the mine and mineral which is transported only after obtaining the permits on payment of royalty as prescribed under Section 9 of the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter referred in short as ‘the Act’ for the purpose of convenience) at the rate specified in Schedule-II, in respect of the mineral and that the royalty shall be paid under Section 9(1)(2) of the Act. 6. While so, the writ petitioner received show cause notice No.3246/Vg/2008, dated 06-06-2008 demanding to pay Rs.9,73,980/- claiming to be the cost of mineral. He submitted explanation on 17-06-2008. Without considering his explanation, demand notice was issued in Proc.No.3246/Vg/2008 dated 14-07- 2008. The said demand notice was questioned in W.P.No.17984/2008 that no demand can be issued as the third respondent is in-competent to issue such an order. The writ petition was allowed on 19-08-2008 as follows: “By the impugned order, a sum of Rs.9,73,980/- is demanded towards purported ground “different quantity of 2319 Mt., of Quartz was quarried unauthorisedly in the leased area”. To the show cause notice issued by respondent No.3, the petitioner submitted his explanation on 17-06-2008. Respondent No.3 by the impugned order rejected the said explanation by merely saying that the same is not satisfactory. The learned counsel for the petitioner questioned the impugned order on two grounds, namely, the order passed by respondent No.3 is totally a non-speaking order as the same has not dealt with the detailed reasons given by the petitioner against the proposed levy and that respondent No.3 has no jurisdiction to issue such a show cause notice and pass the impugned order. As regards the first contention, the learned Government Pleader fairly conceded that respondent No.3 failed to give any reasons for rejecting the explanation of the petitioner. However, as regards the second contention, he relied on G.O.Ms.No.161, Industries and Commerce (Mines-IV) Department, dated 24-03-1980 issued by the Government of Andhra Pradesh, under which the Deputy Director of Mines and Geology is delegated with the powers exercisable under Sub-Sections (3) and (5) of Section 21 of the Mines and Minerals (Regulation & Development) Act, 1957. Even according to the learned Government Pleader, it is only the Deputy Director of Mines and Geology, who has jurisdiction to initiate proceedings, and not respondent No.3. Hence, the impugned order of respondent No.3 is quashed. Liberty is given to the Deputy Director of Mines and Geology, Guntur to initiate fresh proceedings against the petitioner, if he so desires. Subject to the above observation, the writ petition is allowed.” 7. Further it is stated that the judgment was submitted to the third respondent and all other officers. The petitioner also submitted application for issuance of permits, the third respondent had refused to give transport permits though there was no illegality found and the orders passed by him were set aside by this court. The petitioner insisted to issue permits, the third respondent vide his letter No.4992/M/1998 dated 28-01-2009 had written to the petitioner that this court allowed the writ petition and set aside the order, however liberty is given to the Deputy Director of Mines and Geology to initiate fresh proceedings, if he so desires. Hence, he had written to the Deputy Director of Mines and Geology on 20-01-2009 for further necessary action and he is awaiting for reply as regards to the action taken. But not assigned the reasons why he had refused to issue permits. Further specific stand had been taken that the petitioner is entitled for issuance of permits as long as the lease granted to him is in force. The petitioner deposited the royalty and he had not in due of any mineral revenue to the Government. This court also had given finding that explanation furnished by him was not considered. When once the orders are set aside that cannot be made out a reason by the third respondent for not issuing permits. The third respondent is only an executing authority on behalf of the state, he cannot stop issuance of permits. Several other further facts also had been narrated. 8. In the counter-affidavit filed by the respondents it is awarded that it is true to state that the permit was not issued by the third respondent i.e., the Assistant Director of Mines and Geology, Vijayawada keeping in view of the demand raised by the third respondent in connection with the case referred by the Regional Vigilance and Enforcement Officer, Vijayawada and the judgment delivered by this court in W.P.No.17984/2008 filed by the petitioner Sri K. Rabi Venkatesan, Proprietor M/s.Venkatesh Enterprises. 9. It is also stated that as per the office records available with the third respondent, a mining lease for Quartz over an extent of 0.959 Hects., in Sy.No.421/3 of Ganugapadu Village, Tiruvuru Mandal, Krishna District for a period of 20 years in favour of the petitioner-Sri K.Rabi Venkatesan Prop:M/s. Venkatesh Enterprises was granted vide G.O.Ms.No.254 Ind & Com (M.II) Department, dated 04-05-2000 and the lease was executed vide proceeding No.4992/M/1998 dated 01-08-2000 and the mining lease will be in force up to 31-07-2020. 10. Further it is stated that the Regional Vigilance and Enforcement Officer, Vijayawada vide C.No.112/R.V.&E.O./ VAJ/NR-AG/2008, dated 27-05-2008 had stated that the official and the Assistant Geologist of their unit along with the supervisor officer of the third respondent had inspected the Quartz Mining lease area of 0.959 Hects., (2.370 acres) in Sy.No.421/3 of Ganugapadu Village, Tiruvuru Mandal, Krishna District on 22-05- 2008 held by Sri K. Rabi Venkatesan and found that a quantity of 2319 mts of quartz was quarried unauthorizedly based on the annual statement furnished by the petitioner and the actual extent of quarried material computed based on physical inspection in the leased area and requested the third respondent to raise Demand against the petitioner for Rs.9,73,980/- towards Royalty and Cost of the mineral under Rule 21 (5) of the Act for unauthorized mining of quartz. 11. It is also stated that, basing on the recommendations of the Regional Vigilance and Enforcement Officer, Vijayawada the third respondent had issued show cause notice vide Notice No.3246/Vg/2008, dated 06-06-2008 to explain the reasons for unauthorized mining of 2319 Mts., of Quartz from the leased area and requested to Show Cause as to why the demand should not be raised against the Major Minerals excavated by the petitioner and requested to give his explanation within 15 days from the date of receipt of the notice. The petitioner vide letter dated 17-06-2008 while giving the explanation to the show cause notice had stated that the said notice was received by him on 13-06-2008, A.Grade quartz was transported with the permit issued by the third respondent and B.Grade Quartz which has Iron contamination, Red and Yellow patches was stocked in the Mining lease itself and the same was not moved either for export or local market. While considering the explanation furnished by the petitioner, it was seen that as per schedule.II in respect of the Mineral Quartz no grading i.e., A or B for Quartz is mentioned, the Royalty is collectable under Section 9-1 (2) of the MC Rules, 1960 for the Mineral Quartz only. Hence, the third respondent had raised demand vide Notice No.3246/Vg/2008, dated 14-07-2008 and the same was questioned in W.P.No.17984/2008 and this court while allowing the writ petition had stated that liberty is given to the Deputy Director of Mines and Geology against the petitioner, if he so desires. 12. It is further stated that as per the orders of this court in W.P.No.17984/2008 the third respondent had requested the Deputy Director of Mines and Geology, Kakinada vide Lr.No.3246/Vg/2008, dated 20-01-2009 to initiate necessary action against the petitioner to enable to submit a report to the Regional Vigilance and Enforcement Officer, Vijayawada. The petitioner on 27-01-2009 had requested the third respondent to issue permits vide Form-A, as the orders of the Deputy Director of Mines and Geology, Kakinada is awaited in the matter the third respondent had refused to issue the permit and the same was informed to the petitioner vide Letter No.4992/M/1998, dated 28-01-2009 and the same was received personally by the authorized agent of the petitioner on 28-01-2009. 13. It is also stated that as per the annual accounts submitted by the petitioner on 01-04-2008 the closing balance for the stock position of quartz for the year 2007-08 is 770.070 Mts., are not tallying with the actual excavated quantity (4777 Mts) mentioned in the report send by the Regional Vigilance and Enforcement Officer, Vijayawada even in the explanation given by the petitioner for the Show Cause Notice issued by the third respondent, the petitioner had mentioned that only B grade Quartz had been stocked at the Mining site but he had not mentioned it, in the returns submitted by him. Finally, the Regional Vigilance and Enforcement Officer, Vijayawada had arrived difference quantity of 2319 Mts., of Quartz after deducting permitted quantity of 2458 Mt of Quartz. 14. Further it is averred that the main intention of the third respondent to stop the permits is to collect the amounts raised by the Regional Vigilance and Enforcement Officer, Vijayawada and also keeping in view of the orders of the Deputy Director of Mines and Geology, Kakinada which are awaited regarding the case at that date. 15. It is further stated that while the matter stood thus, the Deputy Director of Mines and Geology, Kakinada vide notice No.623/M/09 dated 16-03-2009 had issued a notice to the petitioner calling upon him to produce documentary evidence with respect to the difference of the quantity of quarried Quartz to an extent of 2319 Mts., within a period of 15 days. However, no explanation had been submitted by the petitioner as on the date and in view of the same, steps are being initiated to take further action in accordance with the Act. However, it is brought to the notice of the court that to the subsequent event of issuance of show cause notice an explanation also had been submitted by the writ petitioner. 16. On a careful reading of the respective stands taken by the parties some subsequent events had been averred in para No.9 of the counter-affidavit. But, however, as on the date of filing of the writ petition this court is of the considered opinion that there is no justification on the part of the third respondent either to refuse to issue transport permits or his action in not issuing the transport permits. It is needless to say that the subsequent action, if any, stands on a different footing altogether. Hence, this court is not inclined to express any opinion relating to subsequent events. 17. However, in view of the facts and circumstances, the writ petition is hereby allowed, subject to the further steps, if any, to be taken as specified in paragraph No.9 of the counter-affidavit. No order as to costs. ___________________ P.S. NARAYANA, J December 9, 2009. PN THE HON'BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.4037 of 2009 December 9, 2009