THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO. 25898 OF 2007 Dated 22nd June, 2010 Between: K.Eshwar Chandra …Petitioner And The Government of Andhra Pradesh rep. By Secretary, Industries and Commerce Department and Four others …Respondents Counsel for the petitioner : Smt N.Shoba Counsel for respondents 1 to 4: AGP for Industries and Commerce Counsel for respondent No.5: None appeared The Court made the following ORDER: This writ petition is filed for a Mandamus to set aside memo dated 17.11.2007 of respondent No.2 and the consequential proceedings dated 27.11.2007 of respondent No.3 granting quarry lease in favour of respondent No.5. Though notice was served by the counsel for the petitioner under acknowledgment, there is no appearance for respondent No.5. I have heard learned counsel for the petitioner and learned Assistant Government Pleader for Mines and Geology representing respondents 1 to 4. The petitioner made his application for grant of quarry lease for road metal on 05.12.2002. Respondent No.5, which is stated to be a Labour Contract Cooperative Society, made its application on 11.12.2006 for grant of quarry lease for the same area for which the petitioner made his application. The said application along with two other applications was considered by respondent No.3. By order dated 27.11.2007, the application of respondent No.5 was allowed and quarry lease over an extent of one hectare was granted to it. The petitioner’s application, which was the earliest in point of time, was recommended for rejection “by overlooking priority”. The above proceedings were preceded by Memo No.31396/RI-1/2007 dated 17.11.2007 issued by respondent No.2, whereunder he directed consideration of the application of respondent No.5 overlooking the petitioner’s priority. These two proceedings are questioned by the petitioner in this writ petition. At the hearing, Smt N.Shoba, learned counsel for the petitioner, placed reliance on Rule 12(3) of the Andhra Pradesh Minor Mineral Concession Rules, 1966 (for short “the Rules”) and submitted that respondent No.5 made its application more than four years after the petitioner’s application was made and that therefore, the priority envisaged under the said Rule was not available. She further submitted that even if the order of priority stipulated under the said Rule needs to be overlooked, it is only the Government, which is the competent authority to approve such action to be taken by the Deputy Director. In the counter-affidavit filed by the respondents, rejection of the petitioner’s application was justified on the sole ground that respondent No.5 being a Labour Contract Society, respondent No.2 felt it necessary and appropriate to overlook the priorities. For appreciation of the issue involved in the writ petition, it is necessary to consider Rule 12(3) of the Rules and the same is reproduced herein below to the extent it is relevant. “Rule 12 (3). The quarry lease applications for minor minerals under items at Sl.No.1 to 3(a) of Schedule-I to Rule 10 shall be disposed of by the Deputy Director in order specified below. (1) Applications of Societies of Professional/(local) Traditional Stone cutters (Waddaras). (2) Crusher owners who do not have quarries. (3) Unemployed youth holding Geology degree, and businessmen who propose to set up crushers. (4) Others; Provided that the above priorities shall prevail if the subsequent applications are received within 7 (seven) days of the receipt of the first application, otherwise the applications shall be disposed of in the order of their receipt. Provided further that the Deputy Director may with the prior approval of the Government grant a quarry lease overlooking the above priorities for any special reasons to be recorded in writing. Provided also that whenever more than one application falling under category (1) above are received for grant of quarry lease and have to be considered, the Deputy Director shall refer the matter to the Government with his recommendations for a direction. From the above Rule, it is evident that the quarry lease applications are required to be disposed of by the Deputy Director in the order of preference specified therein. Under the first proviso, the preference envisaged in Sub-Rule (3) is available only if the applications are filed subsequent to the first application and received within seven days from the date of receipt of the first application. On application of this Rule to the facts of this case, respondent No.5 would have been entitled to priority had it made its application on or before 12.12.2002. Admittedly, respondent No.5 applied for quarry lease more than four years after the petitioner’s application in this regard was received. In the face of these facts, the applications filed by the petitioner; respondent No.5 and other two applicants were required to be disposed of in the order of their receipt. As the petitioner’s application was the earliest, he was automatically entitled to the grant of quarry lease. By his proceedings dated 17.11.2007, respondent No.2 purported to have invoked the provisions of the second proviso by stating that respondent No.5 being a Society comprising four members eking out their livelihood from the quarrying activity is to be considered for granting of quarry lease. In my opinion, the facts of this case did not present an occasion for respondent No.2 to invoke the second proviso. The question of overlooking priorities would have arisen if an applicant, who falls lower in the list of priorities mentioned in Sub-Rule (3) of Rule 12 of the Rules, is sought to be preferred to the applicants who fall in the categories above such applicant. Such is not the case here. Indeed the petitioner falls under the last category in priority at Serial No.4 under the head “others”. Under the first part of the first proviso to Sub-Rule (3), respondent No.5 would have got the priority had its application been made within seven days from the date of receipt of the petitioner’s application. Supposing in such an event, the competent authority felt that giving priority to respondent No.5 was not desirable, the second proviso would have been available for overlooking the priority for granting lease in favour of others placed in the categories below respondent No.5. As the application of respondent No.5 having been made beyond the time stipulated for claiming priority, the second part of the first proviso comes into operation, according to which, there is no option for the respondents other than granting lease in favour of the earliest applicant on the principle of first come first served. While power is conferred on the competent authority to overlook priorities envisaged under the first part of the first proviso, no such power is conferred when once the second part of that proviso comes into play. Therefore on the facts of this case, I am of the opinion that no occasion had arisen for respondent No.2 to purportedly invoke the second proviso and ignore the second part of the first proviso, which clearly says that in case the subsequent application was not received within seven days of the first application, all the applications shall be disposed of in the order of their receipt. There is another reason for holding that the proceedings of respondent No.2, on the basis of which lease was granted to respondent No.5, cannot be sustained. As rightly pointed out by the learned counsel for the petitioner, under the second proviso, it is the Deputy Director, who is competent to overlook the priorities with the prior approval of the Government. Even assuming that a case for overlooking priorities existed, it was only the Deputy Director, with the approval of the Government, that is competent to grant quarry lease contrary to the priorities envisaged in Sub-Rule (3) of Rule 12 of the Rules. Neither in the proceedings of respondent No.2 nor in the counter-affidavit, it is mentioned that the Government has issued any proceedings purporting to overlook the priorities envisaged in Rule 12 (3) of the Rules. For the abovementioned reasons, I am of the view that the impugned proceedings, whereby quarry lease was granted to respondent No.5, cannot be sustained in law and accordingly the same is set aside. Respondent No.3 is directed to reconsider the applications of all the applicants strictly in accordance with Rule 12(3) of the Rules and in the light of the findings rendered hereinabove. He shall complete this exercise within a period of three (3) months from the date of receipt of a copy of this order. The writ petition is accordingly allowed. C.V.NAGARJUNA REDDY, J Dated 22nd June, 2010 vrn