THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NOS.374 OF 2006 AND 4435 OF 2005 Dated 5th August, 2010 WRIT PETITION NO.374 OF 2006 Between: Mathe Chitukulayya and 14 others …Petitioners And Government of Andhra Pradesh rep. By its Secretary and three others …Respondents Counsel for the petitioners : Sri Pannala Srinivas Counsel for respondent No.1: AGP for Industries and Commerce Counsel for respondents 2 and 3: None appeared Counsel for respondent No.4: Smt N.Shoba WRIT PETITION NO.4435 OF 2005 Between: Kude Lakshmi …Petitioner And Government of Andhra Pradesh rep. By Secretary Department of Industries and Commerce and three others …Respondents Counsel for the petitioner : Sri Y.Raveendra Kumar Counsel for respondent No.1: AGP for Industries and Commerce Counsel for respondents 2 and 3: None appeared Counsel for respondent No.4: Smt N.Shoba The Court made the following COMMON ORDER: These two writ petitions are filed by the residents of Vanthada Village, H/o E.Gokavaram, Prathipadu Mandal, East Godavari District for a Mandamus to declare the action of respondent No.1 in not cancelling the mining leases granted in favour of respondent No.4 under G.O.Ms.Nos.109 and 110 dated 29.04.2004 as illegal and arbitrary. The petitioners are tribals situated in an agency area. Respondent No.4 is also a tribal. He has applied for grant of lease for mining of laterite, a minor mineral, under the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 (for short “the Act”). Respondent No.4 has also obtained the purported consents of the petitioners and other owners of the lands, in respect of which he has applied for lease. Under the above two G.Os issued on 29.04.2004, respondent No.4 was granted mining leases over extents of Ac.30.64 cents and Ac.10.95 cents. Disputes arose as to the genuineness of the consents obtained by respondent No.4. On the representations made by the petitioners and others, the District Collector, East Godavari District has referred the matter to the Revenue Divisional Officer, Peddapuram, who in turn called for a report from the Mandal Revenue Officer, Prathipadu. The Mandal Revenue Officer appeared to have held an enquiry and after recording the statements of the persons concerned including the petitioners concluded in his report dated 26.08.2004 submitted to the District Collector stating that there are two groups in the Village, one led by Kude Ramayamma and another group led by Kude Raja Babu and that while the former group has clearly stated that all the people are aware of the application of respondent No.4 and the fact of grant of lease and that they have also received money from the lessee, the latter group has stated that though they are aware of the mining and have received the amounts varying between Rs.2000/- and Rs.5000/-, they have given complaints due to violation of the laws indulged in by respondent No.4, while carrying on mining operations by him. Obviously having received the said report, the District Collector has referred the matter to the Project Officer, ITDA, Rampachodavaram. The said Officer submitted his report dated --.12.2004 to the District Collector, wherein, he has pointed out certain irregularities in the Mandal Revenue Officer granting no objection certificate and also opined that the innocent villagers were induced to affix their signatures/thumb impressions without revealing the contents of the statements on which they have subscribed their signatures and thumb impressions. He has, therefore, recommended for cancellation of the mining leases. As no action was taken by respondent No.1, the petitioners have filed these two writ petitions. It is of relevance to note that one Ommu Badram filed Writ Petition No.6765 of 2007 against an order of the Government, which has stayed operation of the order passed by the Assistant Director of Mines and Geology directing respondent No.4 not to conduct mining operations till the dispute is decided. While dismissing the said writ petition, this Court left the issue relating to the validity of the consents obtained by respondent No.4 to be decided by the Government within a period of eight (8) weeks. The Government thereafter issued Memo No.9584/M.III (1)/2007-3 dated 18.04.2008, whereby it has rejected the representation of Smt Ommu Badram with the caveat that the matter may be reviewed as and when the other pending Court cases are disposed of, if necessary. At the hearing, Sri Pannala Srinivas, learned counsel appearing for the petitioners except petitioners 4, 13 and 15 in Writ Petition No.374 of 2006, and Sri Y.Raveendra Kumar, learned counsel for the sole petitioner in Writ Petition No.4435 of 2005, submitted that respondent No.4 has obtained the consents from their clients by playing fraud and that therefore, it is incumbent upon respondent No.1 to cancel the leases granted in his favour. In support of their contentions, they placed heavy reliance on the report of the Project Officer, ITDA, referred to above. Opposing these contentions, Smt N.Shoba, learned counsel for respondent No.4, submitted that the petitioners, who have received the value for their lands and given consent for her client to exercise surface rights of their lands, are not entitled to invoke the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. She submitted that the question whether the consents of the petitioners were obtained by respondent No.4 by playing fraud or not are disputed questions of fact, which cannot be decided either by this Court or by the Government and that the appropriate remedy for the petitioners is only to approach the civil Court of competent jurisdiction. I have carefully considered the submissions of the learned counsel for the parties. At the hearing, the learned counsel has not disputed that obtaining of consents of the owners of the lands is not a sine qua non for grant of lease over surface rights for the lessee to carry on mining operations. However, under Section 24 A(2) of the Act, the lessee shall be liable to pay compensation to the occupier of the surface of the land for any loss or damage likely to arise or arisen as a consequence of mining operations. Rule 22 (3) (i) (h) of the Mineral Concession Rules, 1960 (for short “the Rules”) envisages that a statement in writing of the applicant, where the land is not owned by him, that he has obtained the surface rights over the area or has obtained the consent of the owner for starting mining operations is required to be made in his application for the grant of mining lease. Under the second proviso to the said provision, the consent of the owner for starting mining operations in the area or part thereof may be furnished after execution of the lease deed but before entry into the said area. A perusal of the two G.Os, under which leases have been granted in favour of respondent No.4, shows that no reference, whatsoever, has been made by respondent No.1 to the consents of the petitioners. In the light of the above position obtaining in law, I am of the opinion that if the consents of the petitioners were obtained fraudulently by respondent No.4, the appropriate course open to the petitioners is to approach the civil Court of competent jurisdiction and claim the necessary reliefs to prevent respondent No.4 from carrying on mining operations without his obtaining proper consent in law from them. Though Section 19 of the Act declares that grant of any reconnaissance permit, prospecting licence or mining lease or its renewal is void and shall have no effect if the same was made in contravention of the provisions of the Act or any Rules or Orders made thereunder, in the light of the seriously disputed questions of fact, it is not possible for respondent No.1 to determine whether respondent No.4 has obtained the consents of the petitioners, fraudulently. Adjudication of this dispute requires appreciation of evidence to be produced by the respective parties and such a course is possible only before the competent civil Court. From the facts noted above, there are virtually two conflicting reports, one submitted by the Mandal Revenue Officer and the other submitted by the Project Officer, ITDA. It is not the pleaded case of any of the respondents that the Project Officer, ITDA has submitted his report after giving notice and an opportunity to respondent No.4. Therefore, respondent No.1 cannot be permitted to rely upon such a report and take a decision thereon. In the peculiar facts and circumstances of the case, I am of the opinion that no direction can be given to respondent No.1 to act on such a report, more so when a converse conclusion was drawn by the Mandal Revenue Officer in his report. In the face of these seriously disputed facts, the writ petitions are disposed of with liberty to the petitioners to approach the civil Court of competent jurisdiction for appropriate relief. As a sequel to disposal of main petitions, WPMP Nos.451 of 2006 and 5937 of 2005 in Writ Petition Nos.374 of 2006 and 4435 of 2005 respectively filed by the petitioners for interim relief are disposed of as infructuous. C.V.NAGARJUNA REDDY, J Dated 5th August, 2010 vrn