THE HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.28125 of 2007 Dated: 06.02.2008 Between Smt. Tondepu Lakshmi …Petitioner And Government of Andhra Pradesh Rep. by its Secretary, Industries & Commerce, (SPIU & SAND) Department, Hyderabad and others. …Respondents THE HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.28125 of 2007 ORDER: This Court ordered rule nisi on 24.01.2008. Heard Sri B.Adinarayana Rao, learned counsel representing the writ petitioner and the learned Assistant Government Pleader for Industries representing the respondents. The writ petition is filed for issuance of writ of mandamus declaring the action of the first respondent in issuing the impugned memo No.16667/SPIU & SAND/2007-2, dated 17.11.2007 rejecting the petitioner’s request for extension of lease period in respect of Chityala Sand Quarry, as illegal, arbitrary and contrary to the provisions of the A.P. Minor Mineral Concession Rules, 1996 (for short ‘the Rules’), and consequently to direct the respondents to forthwith extend the lease to the petitioner to carry on the sand quarry in Chityala Gram Panchayat, Vatsavai Mandal, Krishna District and to pass such other suitable orders. It is stated that the Government had issued G.O.Ms.No.417, Industries & Commerce (M.I) Department, dated 01.12.1998, amending Rules 9-B to 22-C of the Rules. As per the said Rules, auctions were conducted for sand quarry of Chityala Gram Panchayat, Vatsavai Mandal, Krishna District. In pursuance of the orders passed by the Government, the authorities concerned invited bids with regard to the sand quarry at Chityala Reach, Vatsavai Mandla, Krishna District. The petitioner’s husband Sri Tondepu Srinivasa Rao participated in the auction conducted on 30.03.2000 and became highest bidder in respect of Chityala Reach with Rs.3,33,036/- to excavate the sand quarry for a period of six months upto 30.09.2000. Thereafter, her husband paid the bid amount and obtained the work order. But unfortunately her husband could not operate the sand quarry due to the Court orders regarding the path dispute. One Mr. Y.V.S. Reddy and others filed W.P.No.11432 of 2000 before this Court questioning the lease granted in favour of her husband, in which her husband was made as fourth respondent. This Court observed that her husband should be permitted to carry on the sand quarry operations. But, unfortunately due to lapse of period, her husband could not operate the sand quarry. But, however, her husband was pursuing the authorities for extension of lease. It is also stated that the husband of the petitioner filed W.P.No.10968 of 2001 seeking directions to renew the quarry lease, which could not be operated because of the aforesaid circumstances. This Court, by order, dated 08.06.2001, directed the State Government to consider and pass appropriate orders within two months. But, however, the second respondent by his proceedings, dated 04.08.2001, had denotified the said quarry on various grounds. The said de-notification was never communicated to her husband. Unfortunately, her husband died on 16.06.2003. After the death of her husband, she came to know about the said facts, approached the respondent authorities and requested them to permit her to continue the sand quarry operations of Chityala and the respondent authorities have promised to consider her request, but no action was taken by the respondent authorities to that effect. As such, she submitted a written representation to the first respondent on 23.11.2006 with a request to permit her to do the sand quarrying operations. In spite of her repeated visits and requests, the respondent authorities did not take any action. As such, she was constrained to approach this Court by way of filing W.P.No.26333 of 2006 and on being appraised that the said quarry has been denotified the said writ petition was dismissed. She carried the matter in appeal vide W.A.No.220 of 2007 but the said appeal was also dismissed on the ground that the said quarry was denotified and as the same not being challenged, she is not entitled for any relief. A copy of the said judgment is placed before this Court. It is also averred that subsequently the said Chityala Sand Reach has been notified after conducting detailed enquiry/report of the Deputy Director of Ground Water Department, Seetharampuram, Vijaywada vide Lr.No.395/HqSR/2007, dated 06.03.2007. Thereafter, basing on the said report, the second respondent had notified the said R e a c h vide proceedings No.644/Q/2007, dated 14.07.2007. Subsequently, the fourth respondent issued the notification for conduct of leasehold rights in respect of Chityala Sand Reach and other sand reaches and the same was published in the newspapers on 12.09.2007. While so, some third parties appear to have filed an application before the first respondent seeking stay of auction pursuant to the notification and the first respondent granted stay of the auction by order dated 25.09.2007. The petitioner also filed an application before the Minister for Industries and Commerce on 18.10.2007 requesting to permit her to do Chityala Sand Quarry operations for the balance period, which was left over by her late husband, and to which she is entitled, in view of de-notifying of the quarry. Thereafter, the first respondent by his letter dated 01.11.2007 in Memo No.16667/SPIU & SAND/2007-1 addressed to the Director of Mines and Geology, Hyderabad calling for remarks in respect of the said issue and the Director in turn referred the same to the fourth respondent by his proceedings dated 02.11.2007. While the matter stood thus, prior to the receipt of the remarks, the first respondent rejected the request made by her vide letter, dated 17.11.2007. It is relevant to mention here that the remarks which were sought by the first respondent is still lying with the Director of Mines and Geology, Hyderabad and the same were received by him from the Assistant Director of Mines and Geology, Nandigama on 22.11.2007 i.e., subsequent to the rejection of her request which was not in accordance with law. As a matter of fact, she is entitled to continue the sand quarry lease of Chityala for the balance period, which was left over her late husband. It is pertinent to mention here that W.P.No.26333 of 2006 and W.A.No.220 of 2007 were went against her because the said sand reach was de-notified by the respondents long back. But the respondents after conducting the detailed enquiry by the respective departments including ground water Department and the District Collector, Krishna, notified the above sand reaches for conduct of the lease hold rights of the respective sand reaches. But without considering the changed circumstances, however, only relying on the judgment of this Court, the first respondent rejected her request. The first respondent did not consider the fact that the said quarry is notified, after withdrawing the earlier de- notification, which is a vital fact omitted from consideration. The impugned order, dated 17.11.2007, rejecting the petitioner’s request for extension of lease period, had been challenged on several grounds which had been specified in the affidavit filed in support of the writ petition. In the counter-affidavit filed on behalf of the respondents, it is stated that the D.P.O., Machilipatnam, Krishna District notified the area for auction vide Notification Roc.No.997/2000(pts)-1, dated 10.03.2000, for a period of six months. Sri T.Srinivasa Rao was the highest bidder in the said public auction for Chityala Reach of Vastavai Mandal, Krishna District. A lease deed was executed on 14.06.2000 for a period of six months with effect from 14.06.2000 to 30.09.2000. It is further submitted that Sri Y.V.S.Reddy and five others filed W.P.No.11432 of 2000 before this Court seeking a direction to the effect that sand from Chityala Reach not to be transported through their patta lands in Survey No.174/1B, and this Court passed an interim order in W.P.M.P.No.14530 of 2000, dated 29.06.2000, holding that the lessee shall not transport the sand from the sand reach of Munneru river within the limits of Gram Panchayat through patta lands in Survey No.174/1B. Upon notice, the lessee, who got impleaded as respondent No.4 in W.P.No.11432 of 2000, filed W.V.M.P.No.1583 of 2000. After hearing the parties a learned Single Judge of this Court vide order dated 10.07.2000 disposed of the writ petition by directing that the representation, dated 19.06.2000, made by the petitioner be sent to the District Collector, who should treat the same as an appeal under Rule 27 of A.P. Panchayat Raj (auction of sand in water courses vesting in Grampanchayats) Rules, 2000 and decide the same within a period of four weeks. The District Collector passed orders informing the lessee that action is being taken for refund of the bid amount. Therefore, it is not correct to say that Sri Y.V.S.Reddy filed the said writ petition questioning the grant of lease in favour of the petitioner. The dispute raised was that transportation of sand should not to be carried through their pattta lands. After the expiry of the lease period, the lessee, on the ground that he could not operate the quarry during the lease period due to the problem of path through patta lands in S.No.174/1B created by the local people, filed W.P.No.2016 of 2001 before this Court and this Court passed an order on 20.02.2001, directing the District Level Sand Committee to consider the request of the lessee for extension of lease period, in the light of G.O.Ms.No.1, Industries & Commerce Department, dated 01.01.2001. The District Level Sand Committee considered his request and the D.P.O issued a temporary permit for a period of 60 days (2 months) by collecting proportionate amount for 60 days, with 10% enhancement on the lease amount of Rs.1,22,124/- on 08.03.2001 for the period from 09.03.2001 to 08.05.2001. Sri Jala Ramulu, Village Sarpanch of Chityala Village of Vastavai Mandal, filed W.P.No.4458 of 2001 seeking a direction to the D.P.O not to issue temporary permits for sand quarrying in Chityala Reach, and this Court passed an order on 14.03.2001 directing the D.P.O not to issue temporary permits. Sri T.Srinivasa Rao filed W.P.No.4654 of 2001 before this Court and this Court passed an order on 19.04.2001 directing the D.P.O to take necessary steps as per Rules to enable the lessee to operate the sand quarry. Further, this Court also observed in its order that the lessee is at liberty to pursue such other remedies before the jurisdictional civil Court. In W.P.No.4458 of 2001, this Court has passed a direction not to issue temporary permits, on 14.03.2001, by which time temporary permit was already issued in favour of T.Srinivasa Rao. In W.P.No.4654 of 2001, on 19.04.2001, this Court directed the D.P.O to enable Sri T.Srinivasa Rao to operate the quarry, pursuant to the temporary permit granted on 08.03.2001 and the same was informed by the D.P.O on 01.05.2001 to the lessee. At no point of time the permit issued on 08.03.2001 was either suspended or withdrawn by the D.P.O as alleged by the petitioner. It is further averred that Sri T.Srinivasa Rao again filed W.P.No.10968 of 2001 seeking a direction to the respondents to renew the lease. The same was disposed of by a learned Single Judge on 08.06.2001, by directing the State Government to consider and decide his representation within two months. In the meantime, the Sand Reach was de-notified on 04.08.2001 due to the depletion of the ground water and other related problems. After the de-notification, Sri T.Srinivasa Rao filed W.P.No.27034 of 2001 seeking a direction to the D.P.O for grant of extension of lease period, pursuant to his representation dated 19.04.2001. The same was dismissed on 18.04.2002 at the admission stage stating that the petitioner has no right to seek the said relief. The lessee Sri T.Srinivasa Rao died on 16.06.2003 and thereafter, on 23.11.2006 i.e., after a lapse of three years five months, his wife Smt.T.Lakshmi filed a representation before the D.P.O to sanction extension of lease period. The same was rejected on 22.12.2006 as the area was de-notified. Smt.T.Lakshmi filed W.P.No.26333 of 2006 seeking a direction to the D.P.O for grant of extension of lease period, and the same was also dismissed on 13.02.2007, as the area was de- notified. Aggrieved by the said dismissal order, she filed W.A.No.220 of 2007 and this Court dismissed the same on 10.04.2007 while upholding the action of the District Collector in de-notifying the sand quarry. It is further averred that the Government introduced new policy on leasing of sand bearing area through G.O.Ms.No.24 Ind.&Comm., dated 12.02.2007, as per which, the auctions conducted and confirmations issued earlier stands cancelled and fresh auctions are to be conducted by the newly constituted DLC. Further, the Government also amended the Rules through G.O.Ms.No.84, Ind. & Comm. dated 10.04.2007. Under the new Rules extension of lease period is not permitted. The reach area was re-notified on 14.07.2007 by the District Collector for quarry of sand. Under Rule 9B of the Rules, the Assistant Director, Nandigama issued notification for auctioning of Chityala Reach on 29.09.2007 vide Notification No.644/Q/2007, dated 13.09.2007. The same was stayed on 11.09.2007 by the Government on receipt of the representation from Sarpanch of Chityala Village, not to lease out the area for sand quarrying on certain grounds. However, the Government vacated the said stay order on 15.12.2007 and permitted the Assistant Director of Mines and Geology, to go ahead with the auction. The Assistant Director of Mines and Geology, Nandigama issued fresh notification for auctioning the said reach, on 17.01.2008, vide Notification NO.644/Q/2007, dated 24.12.2007. Meanwhile, Smt.T.Lakshmi, the petitioner filed a representation on 18.10.2007 duly endorsed by the letter of Sri Udaya Bhanu, Government Whip, A.P. Legislative Assembly, in which she stated that when her representation dated 19.04.2001 is pending for consideration, the action of the District Collector in de- notifying the area, as per the orders of this Court in W.P.No.10968 of 2001, dated 08.06.2001, was incorrect and therefore she requested to extend the lease period by six months. The main ground made in her representation is that the District Collector intentionally de-notified the area, in order to not to permit her to have the extension of lease period, as such, the order of the District Collector is to be reviewed and extension of time to be given. The said contentions are not valid in the light of the orders of this Court in W.A.No.220 of 2007, dated 20.04.2007, wherein the action of the District Collector in de-notifying the area was upheld. As such, the request of the petitioner for extension of lease period was rejected by the Government on 17.11.2007. The written remarks of the Assistant Director of Mines & Geology, Nandigama on the representation of Smt.T.Lakshmi were called as a regular procedure. However, as the required material was already available on record, her representation was examined and rejected by the Government on 17.11.2007. The lease period was expired on 30.09.2000. The representation of the lessee that he could not operate the quarry due to local problems was already considered and temporary permit for two months (1/3rd of lease period) from 09.03.2001 to 08.05.2001 was given. Again he represented for further extension of time. The reach was de-notified on 04.08.2001. The lessee filed W.P.No.27034 of 2001 before this Court requesting for extension of time and the same was dismissed on 18.04.2002 at the admission stage itself. The lessee/legal heir kept silent for a period of 3½ years i.e., from 18.04.2001 and again represented on 23.11.2006 to the D.P.O for issuance of extension of lease. W.P.No.26333 of 2006 filed for extension of time was dismissed on 13.02.2007. W.A.No.220 of 2007 was also dismissed on 10.04.2007 as per the orders in W.P.No.26333 of 2006. As per the new sand policy issued vide G.O.Ms.No.24 all the auctions not confirmed are automatically cancelled. Further, there is no provision for extension of the earlier lease as per the amended rules issued vide G.O.Ms.No.84, therefore, her request cannot be considered even though the area is re-notified. It is also stated that the representation of the petitioner dated 27.11.2007 was considered by the Government and thereafter the Government issued orders permitting the ADM&G, Nandigama to go ahead with the auctions in respect of the subject sand reach. It is not correct to say that the petitioner’s representation dated 27.11.2007 was not considered. Again she filed the present writ petition and sought for orders in W.P.M.P.No.36757 of 2007 to stay the auction of sand quarry of Chityala Gram Panchayat and this Court passed interim order on 31.12.2007, which reads as hereunder: “List the matter immediately after vacation. Any auction to be held would be subject to further orders, which would be made in W.P.M.P.” From the above, it is clear that the petitioner wanted to stall the disposal of the sand reach of Chityala in public auction, which will cause heavy loss of revenue to the Government. Though two adjoining reaches Chityala & Indugupally were notified for public auction on 17.01.2008, auction could be conducted in respect of Indugupally reach only and the Bid amount was knocked down for Rs.3,96,00,000/- as against the minimum bid of Rs.46,38,000/- with a hike of 860% on the minimum bid. Presuming the same trend, as the Sand reach of Chityala, is adjoining to the reach of Indugupalli, if the subject area of Chityala Reach is auctioned with a minimum bid of Rs.3,63,000/- (on reduced extent) is likely to fetch an amount of Rs.31,21,800/- in a public auction. The request of the lessee/legal heir for the extension of lease that was expired on 30.09.2000 was already considered and relief was given by way of issue of temporary permit for a period of two months from 09.03.2001 to 08.05.2001 (i.e., 1/3 of lease period). Therefore, the extension is also not in the interest of public and the exchequer. These are the respective stands taken by the parties. The impugned order, dated 17.11.2007, reads as hereunder: “GOVERNMENT OF ANDHRA PRADESH INDUSTRIES & COMMERCE (SPIU & SAND) DEPARTMENT From: The Secretary to Government, Industries & Commerce Department, A.P. Secretariat, Hyderabad. To Smt.Thondapu Lakshmi, W/o.Late T.Srinivasa Rao, Lingala (Village), Vbastavai Mandal, Krishna District. Letter No.16667/SPIU&Sand/2007-2, dated 17.11.2007 Madam, Sub:- Sand Auctions – Application of Smt.T.Lakshmi, W/o Late T.Srinivasa Rao, Lingala Village, Vatsavai Mandal of Krishna District – Request to grant balance period of quarry sand at Chityala sand Reach – Rejected – Reg. Ref:- 1.From Sri Udayabhanu, Govt. Whip, A.P.L.A., letter dated 18.10.2007 along with an application of Smt. T.Lakshmi, dated nil. 2. Hon’ble High Court orders in W.P.No.6964/2005, dated 19.04.2005. 3. Govt.Memo NO.10808/pts.III/A3/2005-1 of PR & RD Department dated 02.06.2005. 4.Hon’ble High Court orders in W.A.No.220/2007, dated 10.04.2007 in W.P.No.26333/2006. ***** I am to invite your attention to the references cited and to inform you that the Tahhsildar Vatsavai Mandal, Krishna District in his letter Roc.C4/172/2001 Dated:21.6.2001 has reported that the Chityala Village is not fit for sand quarrying as the said deposits is covered by RWS Pilot Schemes from which, the drinking water is supplied to the surrounding 42 villages. Further, the Chityala Reach is surrounded by the Patta lands of private individuals and the transportation of sand damages RWS Project Schemes, filter Beds, Railway Track and the Bridge. Basing on this report and on the recommendations of Deputy Director, Ground Water Department, the District Collector vide Roc.No.2669/2000. Pts., Dated 04.08.2001 has de-notified the Chityala Sand reach. The Hon High Court of A.P in its order dated 20.04.2007 in W.A.No.220/2007 has dismissed the Writ Appeal filed by you, stating that in exercise of the powers vested under A.P.MMC Rules, 1966, the District Collector is competent to notify the sand reach. 2. In view of the same, the request for grant of lease for the balance of six months period of lease at Chityala sand reach cannot be considered and is hereby rejected. Yours faithfully, Sd/- SECRETARY TO GOVERNMENT” The relevant portion of the order in W.A.No.220 of 2007, which had been referred to, reads as hereunder: “Sri Palle Nageswara Rao argued that refusal of the respondents to renew the lease granted in favour of the appellant’s husband is liable to be quashed on the ground of non- application of mind and arbitrary exercise of power because the authority concerned overlooked the fact that he was illegally prevented from quarrying the sand. He further argued that order dated 4-8-2001 passed by Collector (Panchayat Wing), Krishna is liable to be quashed because before de-notifying Chityala Reach, the officer concerned did not give notice and opportunity of hearing to the appellant’s husband. Learned Government Pleader for Panchayat Raj supported the order under challenge and argued that the appellant is not entitled to any relief because she has not questioned the legality of order dated 4-8-2001 by which District Collector, Krishna de-notified Chityala Reach and proceedings dated 22-12-2006 vide which respondent No.3 rejected her application. We have considered the respective submissions. In our opinion, the appeal is liable to be dismissed because in the writ petition filed by her, the appellant did not challenge order dated 4-8-2001 vide which the District Collector de-notified Chityala Sand Reach and proceedings dated 22-12-2006 vide which respondent No.3 rejected her representation, and without quashing the order of de-notification and proceedings dated 22-12- 2006, no relief can be granted to the appellant. We are in complete agreement with the learned Single Judge that in exercise of the power vested in him under the Andhra Pradesh Minor Mineral Concession Rules, 1966, the District Collector is competent to de-notify the sand reach and in the absence of challenge to the order passed by Collector (Panchayat Wing), Krishna, the appellant cannot seek a direction for being allowed to quarry the sand. We are further of the view that in exercise of the power vested in it under Article 226 of the Constitution, the High Court cannot issue direction, order or writ for compelling the public authorities to act in violation of the statutory provisions. No other point has been argued. For the reasons stated above, the appeal is dismissed. As a sequel to dismissal of the appeal, WAMP.No.409 of 2007 filed by the appellant for interim relief is also dismissed.” It is no doubt true that certain of the contentions, which had been advanced by the learned Assistant Government Pleader for Industries before this Court, and certain of the averments made in the counter- affidavit raising certain pleas, do not find place in the impugned order. On the strength of the same, Sri B.Adinarayana Rao, learned counsel for the petitioner pointed out that when such reasons had not been specified in the impugned order, the impugned order is liable to be set aside and the matter requires reconsideration. In normal circumstances, this Court would have accepted the said contention. But, however, in the light of the findings recorded in W.A.No.220 of 2007, since the same had been referred to while making the impugned order, and also in the light of the specific stand taken that such power of extension is not available at present, this Court is of the considered opinion that directing the respondents to reconsider the issue would be only a futile exercise on the ground that certain of such grounds had not been specified in the impugned order. Hence, this Court is of the considered opinion that the Writ Petition is devoid of merit and accordingly the same shall stand dismissed. No costs. _________________ P.S.Narayana, J Date:06.02.2008 va