IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRTIETH DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 25793 of 2008 Between: 1 GUDE RANGA Rao S/o.Sri Peddaiah R/o.Gottimukkala Kanchikacherla Mandal,Krishna District 2 R.Balakrishna S/o.Nageswara Rao R/o.Plot No.201, Shyamala Nagar 5th Lane,Guntur, Guntur District ..... PETITIONER(S) AND 1 The Government of Andhra Pradesh, Industries &Commerce (M-I) Department, Secretariat Building,Hyderabad rep.by its Secretary 2 The District Level Committee for Sand Auctions, Guntur District ,rep.by its Chairman cum Joint Collector Guntur, Guntur District 3 The Director, Department of Mines and Geology, 8th floor BRKR Bhavan, Tank Bund,Hyderabad 4 The Assistant Director of Mines & Geology,cum Member Convenor, District Level Committee for Sand Auctions Guntur, Guntur District 5 Y.Sambasiva Rao S/o.Basavaiah Flat No.403, Vijaya Soudha Apartments, High School Road,Patamata, Vijayawada .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ order or direction more particularly one in the nature of writ of mandamus declaring the action of the respondents herein in issuing the impugned proceedings No.702/Sand/2008(R-5) dated 13.10.2008 in favour of the 5th respondent according permission to utilize the new ramp at 22.400 Km of Vallabhapuram village in addition to the ramp which was already allowed at 33.700 Km and to ply the vehicle on the flood bank between 22.400 Km and bridge at Vallabhapuram village for quarrying of Sand and its transportation as arbitrary, illegal, and contrary to the Rule-9-N A.P.M.M.C.Rules, 1966 and consequently set aside the same Counsel for the Petitioner:MR.ANDAPALLI SANJEEV KUMAR Counsel for the Respondent No.: GP FOR INDUSTRIES & COMMERCE The Court made the following : Oral order: The petitioners assail the order of the 4th respondent dated 13- 10-2008 (the impugned order) whereunder the 5th respondent, who is the quarry lease holder for sand in respect of Reach No. 5, Kollipara for the period ending 31-3-2010, was permitted to utilize the existing ramp at point 22.400 KM to ply vehicles on the flood bank between 22.400 KM and 33.700 KM and the bridge point, subject to certain conditions, (the conditions being not relevant for the purpose of this writ petition). This order was issued by the respondent on a representation of the 5th respondent. From the impugned order, it would appear that on receipt of certain complaints from other participants at the auction (the petitioners included) as well as the Sarpanch of Vallabhapuram village, the 4th respondent referred the matter to the Executive Engineer, K.C. Division, Vijayawada, by a letter dated 14-8-2008 and received the Executive Engineer’s response on 6-9-2008 and since there was no objection from the river conservation point of view, has accorded the permission. The petitioners challenge the impugned order as being in transgression of the provisions of the Andhra Pradesh Minor Mineral Concession Rules, 1966 (for short ‘the Rules’); as being without jurisdiction and constituting a bounty by the State to the 5th respondent besides being in contravention of the initial notification dated 24-1- 2008. The petitioners and the 5th respondent are sand contractors by avocation. The 4th respondent issued an auction notification on 24-1- 2008 inviting applications from intending bidders for auction of leasehold rights for quarrying sand in several Reaches including Kollipara Reach No. 5 at Kollipara Village behind the Prakasam Barrage between 17.800 KM and 34.200 KM for the sand located in the Right Bank of Krishna River bed, in Guntur District. The period of the lease was for two years, from 23-4-2008 to 31-3-2010. The notification stipulated that the permitted ramp for transporting sand from Reach No.5 is at a point identified as at 33.700KM. Pursuant to the notification, the petitioners, the 5th respondent and certain others submitted tenders for the leasehold rights for Reach No.5. The auction was held on 14-2-2008 at which the bid of the 5th respondent was highest at Rs.1,66,00,000/- per annum. The bids of the two petitioners were at Rs.1,53,00,000/- and Rs.1,37,00,000/- respectively. As the 5th respondent is admittedly the highest bidder, he was granted the lease and an order confirming the bid and the lease in his favour, was issued by the 4th respondent on 23-2-2008. Three days earlier, on 20-2-2008 the 1st petitioner submitted a representation to the 4th respondent stating that he had submitted his bid for Reach No.5 on an assumption that the exclusive authorized ramp for transporting sand is at 33.700 KM which was the notified ramp; that the lease was awarded to the 5th respondent; that the representationist learnt that to favour the 5th respondent, the 4th respondent is believed to be proceeding to grant permission to use an additional and new ramp at Vallabhapuram and that if the same is true the representationist would have quoted Rs.2,00,00,000/- as his bid. The representation ended with the request that if an additional ramp is to be granted then the auction should be cancelled and a fresh notification be issued. Ignoring the petitioners’ representation, the 4th respondent issued the impugned order, is also the grievance. The petitioner alleges that the earlier abandoned ramp at 22.400 KM is additionally opened to favour the 5th respondent by the impugned order. In support of this contention, the petitioners placed, for the perusal of this Court, the report of the Sub-Committee on the verification of ramps in sand Reaches in Krishna River in Guntur District, whereat in respect of Reach No.5 at Kollipara village (which is considered at Sl.No.5 of the Sub-Committee report), the Sub-Committee observed that the ramp at KM 22.40 which involves plying of sand vehicles for 1 KM from river flood bank is objectionable from the River Conservation point of view and that some of the local people have also objected for quarrying (and carting the sand to this Reach) on an apprehension of depletion of the Ground Water Table. The Sub-Committees observations recorded in the report are that the ramp at KM 33.70 (Patha Bommavaripalem village limits) is functioning as per the permission given by the District Panchayat Officer and that the ramp at Vallabhapuram is stopped. According to the petitioners, conservation interests and the objection of the local people have been eschewed in granting the largesse by the 4th respondent to the 5th respondent, by the impugned order. In para 7 of the affidavit filed in support of the writ petition, the petitioners assail the impugned order as being vitiated by another transgression of the Rules, namely, that the mandatory consent of the Mandal Revenue Officer concerned was not obtained. It is specifically pleaded that the Mandal Revenue Officer had also issued a letter to the representationst to the effect that the Mandal Revenue Officer, Kollipara had not accorded permission to open a sand Reach at KM 22.400 and no permission was granted to the 4th respondent or the Executive Engineer, K.C. Division. The 4th respondent has filed an undated counter-affidavit. The chronology of events leading to the grant of lease in favour of the 5th respondent is admitted. In para 5 of this counter, the answering respondent states that the 5th respondent, by letters dated 16-2-2008 and 12-3-2008 (before and after confirmation of lease in his favour) had requested that he had bid four times the amount bid by the previous lessee for the same reach and therefore, he be granted permission to use an additional ramp at Vallabhapuram. According to this counter, the impugned order permitting user of the additional ramp at KM 22.400 was issued by the 4th respondent after obtaining necessary permission from the River Conservator/Executive Engineer, K.C. Division, Vijayawada, as the area comes under the River Conservation Act. Para 14 to 16 of this counter are in response to the allegations in para 7 of the writ petition. The counter is consciously silent in responding to the specific allegation of the petitioners that the impugned order was issued without consent of the Mandal Revenue Officer concerned, a mandatory condition precedent to a valid exercise of power by the 4th respondent under the presents of Rule 9-N of the Rules. The 5th respondent has also filed a counter-affidavit. Whether the Mandal Revenue Officer’s consent was been obtained, the 5th respondent’s counter is also silent. Sri Rudra Prasad, the learned counsel for the 5th respondent would rest his defense to the impugned order on an interpretation of the provisions of Rule 9-N of the Rules, while on behalf of the official respondents the learned Government Pleader for Industries and Commerce would endeavour to sustain the impugned order on the basis of the power under Rule 9-N of the Rules. Since the common platform for impeaching the impugned order as well as the defense is with reference to Rule 9-N of the Rules, it is extracted below: “Use of authorized Ramps:- The lessee should make use of authorized ramps and paths only for transportation of sand from the quarry and not open any new ramps or paths. However any new ramps can be permitted by the concerned Assistant Director of Mines & Geology only with the consent of the concerned Mandal Revenue Officer in case of Government Land and River Conservator where the River Conservation Act applies and in case of patta Lands with the consent of the Pattadar duly verifying the claims supported by certification issued by the Mandal Revenue Officer concerned.” The learned counsel for the petitioner Sri Sanjeev Kumar would present the grammatical construction of the Rules for acceptance by this Court, contending that while the Rule ordains that a lessee should make use of only the authorized ramp; new ramps may be permitted by the concerned Assistant Director of Mines and Geology only with the consent of the Mandal Revenue Officer, in case of Government land and where the River Conservation Act applies of the Conservator as well. The learned Government Pleader would however, press fror a dynamic interpretation of the Rules. According to the State where the consent of the River Conservator is obtained, consent of the concerned Mandal Revenue Officer may be eschewed. Having considered the competing interpretation of Rule 9, this Court holds that no warrant exists for an artificial construction of Rule 9-N as propounded by the learned Government Pleader. On its textual terms, Rule 9-N clearly and unambiguously ordains the exercise of power and discretion by the Assistant Director of Mines and Geology (in the matter of permitting opening of any new ramps or paths) only with the consent of the concerned Mandal Revenue Officer and of River Conservator where the River Conservation Act applies, in the case of Government lands. The petitioners, the official respondents and the 5th respondent as well are agreed that Reach No.5 and the ramp at the point 22.400 KM are Government land and also an area to which River Conservation Act applies. The Rule clearly enjoins the consent of the concerned Mandal Revenue Officer and the River Conservator as well in the circumstances. In the considered view of this Court, there are profound public interest concerns and ecological reasons underlying the mandate of the Rule enjoining the consent of the revenue and the Conservation authorities as well in the circumstances in which the Rule applies. The Conservation authorities are enjoined the responsibility of ensuring effectuation of the conservation principles mandated by the provisions of the River Conservation Act. The general administrative interests, which are several including law and order, local concerns and other ecological concerns as well are represented by the Mandal Revenue Officer. It is the plurality of public concerns which are subserved by the mandate of Rule enjoining that the consent of the Mandal Revenue Officer and the River Conservator as well should be obtained before the Assistant Director of Mines and Geology approves the opening of any new ramp, which is not the notified ramp. On a true and fair construction of Rule 9-N of the Rules, the conclusion is compelling and irresistible that the power and authority of the Assistant Director of Mines and Geology, the 4th respondent is contoured by the fundamental postulate of public law that public power and process of its exercise is primarily based on public interest and exercise of such power is warranted only after obtaining the consent of the Mandal Revenue Officer and the River Conservator as well. The specific allegation in the writ petition that the consent of the Mandal Revenue Officer was not obtained, is not responded to either in the counter-affidavit of the 5th respondent or in the counter-affidavit on behalf of the official respondents, by the 4th respondent. This evasive response must compel an inference as is buttressed by the letter of the Mandal Revenue Officer dated 31-10-2008 (filed by the petitioners in the material papers) that no such consent was obtained. This court holds that in the context and setting of Rule 9-N of the Rules and in the facts and circumstances of this case where the area in question is admittedly and demonstrably a Government land, the consent of the Mandal Revenue Officer is mandatory and no such consent was obtained. For this reason, the impugned order is unsustainable. The contention on behalf of the petitioners with regard to the respondents having failed to take into consideration their revised offer (of Rs.2,00,00,000 set out in the representation dated 20-2-2008) is, in the considered view of this court without substance or force. The availability of power to the 4th respondent under Rule 9-N of the Rules for authorizing a new ramp to a lessee is within the knowledge of the petitioners. Therefore, they would not have submitted a bid oblivious to its possibility. If they did so, they must bear the consequences. No legal position or administrative practice has been brought to the notice of this Court where a bidder is permitted to revise his bid after the date of the auction. On the aforesaid analysis, the impugned order in proceedings bearing No. 702/Sand/2008 (R-5), dated 13-10-2008 issued by the 4th respondent is unsustainable and is quashed. The writ petition is allowed. No costs. ________________________ GODA RAGHURAM, J 30th April, 2009. GRR