*THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY +WRIT PETITION No.9764 of 2009 % Date: 25.04.2011 # M/s. Karunamai Granites ..... Petitioner Vs $ The Govt., of A.P., rep., by its Secretary, Department of Industries & Commerce, Hyderabad and others. .....Respondents < Gist > Head Note ! Counsel for the Petitioner: Sri C.V.R. Rudra Prasad ^ Counsel for Respondents 1-3: GP for Mines & Geology Counsel for respondent No.4: Sri C.V. Mohan Reddy Counsel for respondent No.5: None appeared Counsel for respondent No.6: None appeared ? Cases referred: Nil. IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY FIFTH DAY OF APRIL TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.9764 of 2009 Between: M/s. Karunamai Granites Errabelligudem Village, Nellikuduru Mandal, Warangal District. ..... Petitioner AND The Govt., of A.P., rep., by its Secretary, Department of Industries & Commerce, Hyderabad & others. .....Respondents Counsel for the petitioner: Sri C.V.R.Rudra Prasad Counsel for respondents 1 to 3 : G.P. for Mines & Geology Counsel for respondent No.4: Sri C.V. Mohan Reddy Counsel for respondent No.5 : None appeared Counsel for respondent No.6 : None appeared The Court made the following: THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.9764 of 2009 ORDER: At the interlocutory stage, the Writ Petition is taken up for hearing and disposal with the consent of the learned counsel for the parties. The facts in brief leading to filing of this Writ Petition are that one M/s. Blaze Granites (for short “the original grantee”) was granted two mining leases one in respect of 0.496 hectares in Sy.No.225/120 on 25.10.1989 for a period of five years. A lease deed was executed on 22.01.1990 and the same was renewed for a further period of 15 years on 08.09.1995 with effect from 22.01.1995. It has come out at the hearing that the said lease was renewed on 12.05.2010 up to 21.01.2030. The original grantee was also granted a quarry lease for black granite in Sy.Nos.264/1 and 225/120 over an extent of Ac.1.25 cents (0.50 hectares) in Errabelligudem Village, Nellikudur Mandal, Warangal District vide proceedings dated 15.06.1998 of respondent No.2 for a period of 15 years. The land in Sy.No.264/1 is classified as patta land, which was purchased by the original grantee. The two leases were transferred in favour of respondent No.4 and presently the said respondent is operating the mines. While so, the petitioner applied for grant of mining lease in respect of 2 hectares in Sy.No.225/1 on 26.02.2007. Respondent No.3 filed three applications on 02.03.2007, 28.04.2007 and 24.05.2007 for mining lease for one hectare each in Sy.Nos.225/120 and 264/1, 225/120 and 225/121 to 225/126 respectively. When the petitioner’s application was not disposed of, it has filed Writ Petition No.27931 of 2007, which was disposed of by this Court on 01.04.2008 directing that a joint inspection and survey be conducted and the land in Sy.Nos.225/120 and 264/1 of the Village be surveyed. Complaining of the inaction, the petitioner filed Writ Petition No.23117 of 2008 in this Court, wherein he has sought for a Mandamus to declare the inaction of the respondents therein in disposing of the application dated 26.02.2007 in respect of 3 hectares of land in Sy.No.225/1. In the prayer portion of the said Writ Petition, the petitioner has mentioned that the survey number was later corrected as Sy.No.225/120 vide affidavit dated 27.04.2007. This Court without going into the merits of the case disposed of the said Writ Petition on 23.10.2008 and directed the respondents therein to take necessary steps on the application of the petitioner within a period of two months from the date of receipt of the order. Subsequently, respondent No.4 appeared to have approached respondent No.1 with a purported revision with a request for revising the sketch enclosed to the lease granted in favour of the original lessee. Purporting to consider report dated 06.08.2008 of respondent No.3 and report dated 31.10.2008 of respondent No.2, respondent No.1 has allowed the revision petition and accorded permission to make change in the sketch appended to the lease deed as per the demarcation made on the ground in Sy.Nos.225/120 and 264/1. Feeling aggrieved by this order, the present Writ Petition is filed. At the hearing, Sri C.V.R. Rudra Prasad, learned counsel for the petitioner, advanced two contentions, namely; that the very revision itself is not maintainable because no order adverse to the interest of respondent No.4 was passed and therefore respondent No.1 had no jurisdiction to pass the impugned order. He further submitted that even if respondent No.1 was satisfied that respondent No.4 has made out a case of revision of the sketch, it ought to have heard the petitioner before passing the impugned order because its interests are seriously jeopardized by directing revision of sketch, which had virtually made the petitioner’s application for mining lease redundant. Sri C.V. Mohan Reddy, learned Senior counsel representing respondent No.4, submitted that the petitioner’s application for mining lease was rejected as far back as 05.06.2009 and therefore he has lost the locus standi to question the order of respondent No.1. The learned counsel further submitted that though his client has approached respondent No.1 in the form of a revision, in effect it is a representation made with a view to get the anomaly rectified and therefore there is no jurisdictional error in the power exercised by respondent No.1. He has also contended that while the petitioner has applied for mining lease in respect of Sy.No.225/1, the sketch has been revised for Sy.No.225/120. The learned Government Pleader for Mines and Geology has supported the submissions of the learned Senior counsel for respondent No.4. As regards the first contention of the learned counsel for the petitioner on the maintainability of the revision under Rule 35-A of the A.P. Minor Mineral Concession Rules, 1966, the State Government is vested with the suo motu power to call for and examine the record relating to any order passed or proceeding taken by the Director (Joint Director), Deputy Director or Assistant Director for the purpose of satisfying themselves as to the legality or propriety of such order or as to the regulatory of such proceedings and pass such order in reference thereto as they deem fit. This power of the Government can also be exercised when an application is made by a party. The learned counsel for the petitioner laid strong emphasis on the fact that neither any order was passed by any of the authority inferior to respondent No.1 affecting the rights of respondent No.4 nor any proceeding was pending with reference to which respondent No.4 could approach respondent No.1 with a purported revision. He has submitted that interference by respondent No.1 with the lease already granted in purported exercise of its revisional power is beyond the jurisdiction vested in it apart from the same constituting sheer abuse of its power. As noted above, the learned Senior counsel for respondent No.4 stated that though his client has styled the proceedings as revision, in reality it is only a representation. A perusal of the material papers filed by respondent No.4 shows that it has filed the petition in the form prescribed for a revision petition i.e., Form-J. In column 3 it has shown that the revision is filed against letter No.1319/Q/2007, dated 06.08.2008. Therefore, it cannot be gain said that respondent No.4 has invoked the revisional powers of respondent No.1 under Rule 35-A. Respondent No.4 cannot therefore turn round to say that it has not filed the revision petition, but only a representation. The next question to be considered is whether any occasion has arisen for respondent No.4 to invoke the jurisdiction of respondent No.1. As can be seen from the language of Rule 35-A, a person can invoke the revisional jurisdiction either in relation to any order passed or proceeding taken by any of the authorities referred to therein. It is not the pleaded case of the respondents that the revision was filed against any order passed by any of the authorities. Equally, no proceedings were taken by the Director, Deputy Director or the Assistant Director except submitting the report of respondent No.3 in respect of which the revision is shown to have been filed by respondent No.4. The said report was submitted following a Joint Inspection made in pursuance of the direction contained in order dated 01.04.2008 in Writ Petition No.27931 of 2007. In his report, respondent No.3, while referring to the material variation between the area shown in the sketch appended to the lease granted to the original grantee and transferred in favour of respondent No.4 and the actual area over which the mining activity is being carried on, has requested respondent No.2 to take further action in this regard and to give necessary instructions whether to give permits for dispatch of mineral from the working area of respondent No.4. In paragraph 12 of the counter affidavit, respondent No.2 stated that in response to the said request, he has vide his letter dated 19.08.2008 directed respondent No.3 to issue dispatch permits to respondent No.4. With the said direction issued by respondent No.2, respondent No.4 cannot said to have felt aggrieved by either the report of respondent No.3 or the directions issued by respondent No.2 and consequently there could be no occasion for it to invoke the purported revisional jurisdiction of respondent No.1. Interestingly, while respondent No.4, who is the transferee from the original grantee, has been working in an area which admittedly is different from the one, which is covered by the sketch appended to the lease deed, on coming to know that the petitioner made an application for grant of mining lease, he has also submitted its applications. This clearly shows that respondent No.4 is conscious of the fact that there is a material variation with regard to the area, which is covered by the sketch and the actual working area. If respondent No.4 wanted rectification of the sketch, it should have first approached respondent No.2, who is admittedly the authority competent and who has actually granted the lease in favour of the original grantee. Equally, respondent No.2 is competent to dispose of the fresh applications filed by the petitioner and respondent No.4 for grant of fresh mining leases. Therefore, it passes one’s comprehension as to how respondent No.4 could approach respondent No.1 with a purported revision petition. The stage for invoking the revisional jurisdiction of respondent No.1 is not reached till an appropriate order is passed by respondent No.2, if respondent No.4 has approached him for rectification of the sketch. Till then there would be no occasion for respondent No.1 to intervene in the matter at the instance of respondent No.4 and pass the impugned order. I am therefore of the opinion that the very revision petition filed by respondent No.4 is wholly misconceived and accordingly I hold that the revision before respondent No.1 is not maintainable. With regard to the submission of the learned counsel for the petitioner that even if respondent No.1 thought it fit to intervene at the instance of respondent No.4, it ought not to have passed the impugned order without notice to the petitioner, I find force therein. It is not in dispute that the petitioner made his application for mining lease over 3 hectares of land in Sy.No.225/1 on 26.02.2007. As noted above, even respondent No.4 filed 3 applications subsequent to the application filed by the petitioner. However, there is a serious controversy on the area for which the petitioner made his application. In his original application, he has shown Sy.No.225/1. The prayer in Writ Petition No.23117 of 2008 referred to affidavit dated 27.04.2007 correcting Sy.No.225/1 as 225/120. Order dated 23.10.2008 passed in the said Writ Petition also made a reference to the plea of the petitioner that on realizing that there is a mistake in referring to the survey number, he has submitted an affidavit correcting the survey number as 225/120 on 27.04.2007. Sri C.V. Mohan Reddy, learned Senior counsel, raised two fold submissions on this aspect. Firstly, he submitted that report dated 06.08.2008 of respondent No.3 only referred to Sy.No.225/1 and therefore there was no obligation for respondent No.1 to put the petitioner on notice before rectifying the sketch, as the survey number for which such rectification was sought was 225/120 and not 225/1 for which the petitioner made his application and secondly, even assuming that the petitioner filed such an affidavit, as the same is stated to have been filed on 27.04.2007 subsequent to the applications of respondent No.4, the petitioner cannot claim preference over respondent No.4. In the report of respondent No.3, evidently he has not considered the petitioner’s affidavit correcting the survey number. However, in the remarks column, he has observed “overlapping with the present parts of working area and executed sketch of M/s. Venkateswara Granites as shown in the sketch”. With regard to the first application of respondent No.4, respondent No.3 in his remarks column observed “overlapping the part of applied area of M/s. Karunamahi Granites”. When respondent No.1 has entertained the revision of respondent No.4 on the said report of respondent No.3, it is expected to keep in mind the remarks contained in the said report. Even if the survey numbers are ignored, the above-noted remarks would show that the areas applied for by the petitioner and respondent No.4 overlap with each other. It is also not in dispute that the areas for which respondent No.4 has applied for mining leases are the same areas, which are included in the rectified sketch. As the areas for which the petitioner submitted his application are shown to be overlapping with the areas, which are included in the rectified sketch, any such rectification would make the petitioner’s application redundant as there will be no area left for being considered in favour of the petitioner. I am therefore of the firm opinion that even if there was any reason for respondent No.1 to entertain the revision petition, it ought to have given notice and an opportunity of being heard to the petitioner before passing order for rectification of the sketch. As regards the submission of the learned Senior counsel that the petitioner’s affidavit is later in point of time than the applications of respondent No.4, a prima facie perusal of the report of respondent No.3 would show that respondent No.4 has submitted applications on 02.03.2007, 28.04.2007 and 24.05.2007 for one hectare each while according to the petitioner, he has filed his affidavit correcting the survey number on 27.04.2007. It thus appears that the affidavit correcting the survey number was filed after the first of the three applications filed by respondent No.4 and before the other two applications were filed by it. At any rate, this issue is not germane for adjudication in the present Writ Petition more so when the petitioner’s application is stated to have been rejected by respondent No.2 vide his order dated 05.06.2009. If the petitioner felt aggrieved by the said order, he has to avail the appropriate statutory remedy under the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 and the Rules made thereunder before the competent authority. If and when such proceedings are initiated, this issue would be relevant for consideration and the parties are left free to raise appropriate pleas on this aspect in such proceedings. Ordinarily, in the light of the findings rendered above, the impugned order of respondent No.1 ought to be set aside. However, a peculiar situation has arisen in this case as respondent No.2 is stated to have rejected the petitioner’s quarry lease application vide proceedings No.12068/R6-1/2009, dated 05.06.2009. The learned counsel for the petitioner stated that so far his client has not received a copy of the order, but the fact that the petitioner’s application was rejected was stated in paragraph 3(d) of the counter affidavit filed by respondent No.4. The said counter affidavit was filed as far back as July 2009. Respondent No.4 has also filed a copy of the said rejection order along with the counter affidavit. The petitioner has neither filed a reply affidavit controverting the said averment nor taken any steps for questioning the order passed by respondent No.2 rejecting his application. Therefore, as rightly submitted by the learned Senior counsel and the learned Government Pleader, as of now, the petitioner’s interest over the area for which it has applied for mining lease cannot be said to subsist, unless and until it has availed the appropriate legal remedy for setting aside the order of respondent No.2. The fact that the area, which is not covered by the sketch and has been included under the impugned order passed by respondent No.1 is being exploited from the time of the original grant is not in dispute and respondent No.1 has only lent legitimacy to the mining operations over such area by rectifying the sketch. However, as the rectification of the sketch was not done after notice to the petitioner, even though its application at that time was pending before respondent No.2, the interest of the petitioner needs to be protected. In my opinion, the only way by which such protection can be made is to permit the petitioner to pursue its further remedy against the order of respondent No.2 without being affected by the impugned order. It has been submitted by the learned counsel for the petitioner, at the hearing, that the petitioner can file an appeal before respondent No.1 against the order of respondent No.2 rejecting its application. If such an appeal is filed, respondent No.1 shall consider the same on its own merits according to law without being influenced by the impugned order and treating that the area applied for by the petitioner is available for grant. Along with such appeal, respondent No.1 shall reopen and reconsider the entire issue pertaining to the claim of respondent No.4 for rectification of the sketch appended to the lease of the original grantee afresh, after giving the petitioner and respondent No.4 an opportunity of being heard, ignoring the impugned order by which the sketch appended to the original lease was rectified. Subject to the above directions, the Writ Petition is disposed of. As a sequel to disposal of the Writ Petition, WPMP No.12697 of 2009 filed by the petitioner for interim relief is disposed of as infructuous. ____________________________ C.V.NAGARJUNA REDDY, J Date: 25.04.2011 ES LR copies to be marked.