* T H E H O N ' B L E S R I J U S T + W.P.No. 26521 of 2007 % 2 0 - 0 2 - 2 0 0 8 # K a k a n i P u r n a c h a n d e r R a o . . P e t i t i o n e V s . $ The Government of Andhra Pradesh, represented by Secretary, Industries and Commerce Department, Hyderabad and others . . R e s p o n d e n < G I S T : > H E A D N O T E : ! C o u n s e l f o r p e t i t i o n e r : Smt. N. Shoba ^ C o u n s e l f o r r e s p o n d e n t s ? C A S E S R E F E R R E D : - HON’BLE SRI JUSTICE P.S. NARAYANA W.P.NO. 26521 OF 2007 DATED: .02.2008 Between: Kakani Purnachander Rao … Petitioner and The Government of A.P., represented by Secretary, Industries and Commerce Department and others … Respondents HON’BLE SRI JUSTICE P.S. NARAYANA W.P.NO. 26521 OF 2007 ORAL ORDER: This Court issued Rule Nisi on 20.12.2007. Counter affidavit is filed. The writ petition is filed for a writ of Mandamus declaring the action of the respondents in Proceedings Memo No. 15489/SPIU & SAND/2007-1, dated 7.12.2007 to the extent of treating the lease period with retrospective effect from 10.10.2007 instead from the date of execution of lease deed for quarrying ordinary sand in Lankapalli Village, Pamidimukkala Mandal, Krishna District, as arbitrary, illegal, unjust, unconstitutional and in violation of Mines and Minerals (Development & Regulation) Act, 1957 and A.P. Minor Mineral Concession Rules, 1966 and pass such orders. Heard Smt. N. Shoba, learned counsel appearing for the writ petitioner and the learned Assistant Government Pleader, representing the Industries and Commerce. The learned counsel for the writ petitioner had taken the Court to the contents of the affidavit filed in support of the writ petition and also the stand taken in the counter affidavit and would explain that absolutely there is no fault on the part of the writ petitioner and in the light of Rule 9-I (2) of the A.P. Minor Mineral Concession Rules, 1966 (for short ‘the Rules’), as amended, the lease period shall commence with effect from the date of the execution of the lease deed. But, however, the lease deed is being reckoned with otherwise by the respondents and hence the same is unsustainable. On the contrary, the learned Assistant Government Pleader for Industries would explain that it was the default on the part of the writ petitioner and the writ petitioner himself cannot take advantage of his own wrong, if any, and hence the relief prayed for in this writ petition cannot be granted. The learned Government Pleader had also taken this Court through the relevant portions of the counter affidavit. In pursuance of notification No.644/Q/2007 dated 12.9.2007 by the 3rd respondent notifying the sand quarry reaches for Krishna District for public auction, the petitioner participated in the auction for Lankapally Sand Quarry Reach and became the highest bidder for Rs.73,09,999/-. As per Rules, he had deposited 1/4th of the bid amount within 48 hours. In view of heavy flow of River Krishna, there was no possibility for quarrying, he represented to Government on 8.10.2007 requesting to verify the situation and the Government passed orders on 8.10.2007 considering the request and allowed to pay the balance amount in 15 days and the period counts only from due date of execution. The confirming authority is District Collector as the amount is above Rs.5.00 lakhs. The Assistant Director of Mines and Geology had passed orders in Lr.No.3755/Q1/2007 dated 5.10.2007 that by proceedings No.3755/Q1/2007 dated 4.10.2007, the District Collector had issued confirmation and to pay 75% of the knocked down amount in 7 days. Proceedings of Assistant Director of Mines and Geology dated 5.10.2007 was received by him on 11.10.2007. Immediately, he represented on 11.10.2007 that copy is received by him only on 11.10.2007 and to grant time for deposit. Further, the petitioner received notice on 26.9.2007 from the High Court of A.P., to the effect that one Yelamanchali Sambasiva Rao filed W.P.No.20448 of 2007 and to appear and answer the same. The petitioner again represented on 15.10.2007 to the Assistant Director of Mines and Geology as regards the pendency of the writ petition on the file of this Court. However, in compliance of the confirmation orders and the orders of the Government dated 8.10.2007, the petitioner deposited the balance 75% of the amount + Rs.49,15,512/- + Rs.1,12,940/- towards TDS + Rs.7,31,000/- towards Security Deposit on 16.10.2007 to the Assistant Director of Mines and Geology. The petitioner received proceedings of the Assistant Director of Mines and Geology in Lr.No.3755/Q1/2007 dated 17.10.2007 that the amount of Rs.49,15,512/- + Rs.1,12,940/- + Rs.7,31,000/- is received after the due date, hence to approach the Director of Mines and Geology for condonation of delay and in the meanwhile to deposit Rs.4,02,100/- towards the stamp duty. This order of the Assistant Director of Mines and Geology in treating the period of 7 days from the date of orders of the District Collector is without reference to the orders of the Government dated 8.10.2007. The petitioner submits that any order comes into effect only from the date of receipt of notice and not from the date of order and receipt of the order is the criteria. In this case, the District Collector had passed order on 4.7.2007, which is communicated to the Assistant Director of Mines and Geology who had passed orders on 5.10.2007 at evening hours, received by the petitioner on 11.10.2007 and he paid the same on 16.10.2007. It is well within 7 days from the date of receipt of the order (11.10.2007). It is also stated that the Assistant Director of Mines and Geology by proceedings dated 17.10.2007 directed him to deposit stamp duty of Rs.4,02,100/- at the rate of 5% and when as per the Act, it is only 3%. He questioned the same in W.P.No.23022 of 2007, wherein this Court made the following interim direction. “Interim direction as prayed for, subject to the condition of any further clarification to be made by this Court in WPMP.” The Assistant Director of Mines and Geology did not execute the lease deed as he had referred the matter to the Government for condonation of delay treating the period as 7 days from the date of order of the District Collector. Then, the Government passed the order in Memo No.15489/SPIU & SAND/2007-1 dated 7.12.2007 as follows. “The Government after careful examination of the proposal of the Director of Mines and Geology, Hyderabad and the request of the bidder, in exercise of the powers conferred under Rule 9-K(2) of A.P. Minor Mineral Concession Rules, 1966 amended vide G.O.Ms.No.84, Industries and Commerce (M-I) Department dated 10.4.2007, hereby condone the delay in execution of lease deed subject to condition that the bidder agrees to execute the lease deed by paying balance amount if any, and should submit the required documents within seven days from the date of this order and commencement of the lease with retrospective effect from the last date permitted for execution i.e., from 10.10.2007.” It is stated that the Government had directed to execute the agreement with retrospective effect from 10.10.2007. The petitioner asserts that he deposited the entire amount and unfortunately he was not permitted to quarry and that a period of 2 months had elapsed and that he would suffer loss, if the period is treated from 10.10.2007. He further states that though he had bid for one year, the first year period given was only 6 months. The petitioner states that in terms of Rule 9-I(2) of the Rules, the lease period commences with effect from the date of execution of lease deed. Hence, the period has to begin from the date of execution of the lease deed. When the Rule speaks it is with effect from the execution of the lease deed, the orders of the Government that the commencement of the lease with retrospective effect from 10.10.2007 is arbitrary, illegal and unjust. In such circumstances, the writ petitioner approached this Court. It may be appropriate to have a look at Rule 9-I (2) of the Rules, which reads as hereunder: “The successful tenderer/bidder on receipt of the order of the confirmation shall remit the remaining 70% of the knocked down amount to the Zilla Parishad Head of Account and remaining 5% of the total knocked down amount to the State head of Account as indicated in the order of confirmation and submit the challans to the concerned Assistant Director of Mines and Geology along with payment of prevailing Income Tax and a security deposit of 10% of the knocked down amount subject to the minimum of Rs.1,00,000/- (Rupees One Lakh only) or equivalent to bid amount whichever is less through National Saving Cerificate duly pledged in favour of Governor or Bank Guarantee issued from any Nationalized Banks and execute the lease deed with the Assistant Director of Mines and Geology concerned in Form G-I on stamped paper as per the Registration and Stamp Act within seven days from the date of confirmation order. The lease period shall commence with effect from the date of the execution of the lease deed.” In the counter affidavit filed, several of the averments had been denied. It is stated in Para (3) that the Lankappalli Sand Reach was Knocked down in favour of Sri K. Poornachandra Rao, during the auctions held on 29.9.2007 with a Knocked down bid amount of Rs. 73,09,999/- as against the minimum bid of Rs.22,68,000/-. The confirmation orders were issued in favour of the successful bidder Sri K. Poornachandra Rao, vide Proceeding No.3755/Q1/2007 dated 4.10.2007 and he was requested to pay the balance amount of 75% of bid amount Rs.54,82,500/-, Income Tax of Rs.1,12,940/- and Security Deposit of Rs.7,31,000/- within 7 days from the date of this order as per condition 2 of Rule 9-I of the Rules, amended vide G.O.Ms.No.84 dated 10.4.2007. But the successful bidder had paid the required amounts on 16.10.2007 after the expiry of the time mentioned in the confirmation order. Subsequently the Government Pleader for Industries, High Court of Andhra Pradesh, Hyderabad vide letter No. W.P.20448/2007/Ind & Com/TSS, dated 28.9.2007 had informed that the W.P.No. 20448 of 2007 filed by Sri Y. Samba Siva Rao against the auction on this reach, has come up for admission on 27.9.2007 and the Hon’ble High Court of Andhra Pradesh, Hyderabad, after hearing granted interim order that Auction may go on, confirmation should be subject to the result of W.P.M.P., the case was posted after 2 weeks from 27.9.2007. It is further submitted that on 8.10.2007, the highest bidder Sri K. Poornachandra Rao made representation to the Hon’ble Minister for Mines and Geology requesting the Government to stay further proceedings in respect of the reach for three months on the ground that there were floods in River Krishna. This respondent vide letter dated 8.11.2007 had informed that the allegation of floods is incorrect and there is no problem for digging the land. Further this office vide Lr.No.3755/Q1/2007 dated 17.10.2007 narrating all the facts in the matter and submitted proposals under Rule 9-K(2) of the Rules, amended vide G.O.Ms.No.84 dated 10.4.2007 to the Director of Mines and Geology, Hyderabad, for delay condonation and for execution of the lease deed in favour of Sri K. Poornachandra Rao, and the Director of Mines and Geology, Hyderabad, in turn, submitted his proposals to the Government for condonation of delay. Basing on the proposals of the Director of Mines and Geology, Hyderabad, and the representation of Sri K. Poornachandra Rao and the report of this respondent dated 8.11.2007, the Government vide Memo No.15489/SPIU & SAND/2007-1 dated 7.12.2007 under Rule 9-K (2) of the Rules issued orders condoning the delay in execution of the lease deed subject to condition that the bidder agrees to execute the lease deed by paying balance amount if any, and should submit the required documents within seven days from the date of this order and commencement of the lease with retrospective effect from the last date permitted for execution i.e., from 10.10.2007. However, the validity of the agreement is subject to the outcome of the W.P.No.20448/2007 pending in the Hon’ble High Court of A.P. As per the orders of the Government, the deed was executed in favour of Sri K. Poornachandra Rao vide proceedings No. 3755/Q1/2007 dated 12.12.2007 after bidder paid the balance amounts and submitted all the required documents and the lease was with effect from 10.10.2007 to 31.3.2008, subject to the outcome of W.P.No.20448/2007, pending before this Court. Subsequently, the said Writ Petition was dismissed by this Court on 7.12.2007. It is also stated that this office vide Lr.No.3755/Q1/2007 dated 17.10.2007 requested the successful bidder Sri K. Poornachandra Rao to pay Rs.4,02,100/- towards stamp duty along with other documents. As per the orders of the Government dated 7.12.2007, this office by collecting stamp duty of Rs.2,19,300/- @ 3% on the Knocked down bid amount vide Challan No.58800 dated 11.12.2007 at S.T.O., Vijayawada, executed the lease deed in favour of Sri K. Poornachandra Rao vide Proceedings No.3755/Q1/2007 dated 12.12.2007 with effect from 10.10.2007 to 31.3.2008 subject to the outcome of the W.P.No.20448/2007 pending before this Court and subsequently the said W.P. was dismissed by this court on 7.12.2007. It is also stated that as per Rule 9-I (2) of the Rules, the lease period shall commence with effect from the date of execution of the lease deed. But, in this case, the lease deed was executed in favour of Sri K. Poornachandra Rao vide Proceedings No.3755/Q1/2007 dated 12.12.2007 with effect from 10.10.2007 to 31.3.2008 after the delay condonation orders of the Government vide Memo No.15489/SPIU & SAND/2007-1, dated 7.12.2007 subject to the outcome of W.P.No.20448/2007 pending before this Court. The delay was caused by the highest bidder firstly by not paying the balance amount in time and by not submitting the documents as per the confirmation orders, thereafter he caused further delay by making false and misleading representation to the Government on 8.10.2007, stating that there were floods. Therefore, the petitioner has to be blamed for this delay. As the delay was on the petitioner’s own volition, the Government while condoning the delay had directed this office to execute the lease deed from 10.10.2007. Hence, there is no illegality or arbitrariness in the said order. On a careful reading of Rule 9-I (2) of the Rules referred supra, no doubt, the lease period shall commence from the date of execution of the lease deed. The order impugned vide Memo No.15489/SPIU & SAND/2007-1 dated 7.12.2007 reads as hereunder: Rule 9-K of the Rules deals with powers of the State Government. Rule 9-K(2) specifies that the Government shall have the power to condone the delay in issue of confirmation orders, execution of lease deed etc, for the valid reasons to be recorded. In the order impugned dated 7.12.2007, it had been specified in Para (5) that the Government after careful examination of the proposal of the Director of Mines and Geology, Hyderabad, and the request of the bidder, in exercise of the powers conferred under Rule 9-K(2) of A.P. Minor Mineral Concession Rules, 1966 amended vide G.O.Ms.No.84, Industries and Commerce (M-I) Department, dated 10.4.2007, hereby condone the delay in execution of lease deed subject to condition that the bidder agrees to execute the lease deed by paying balance amount if any, and should submit the required documents within seven days from the date of this order and commencement of the lease with retrospective effect from the last date permitted for execution i.e., from 10.10.2007. However, the validity of the agreement is subject to the outcome of the W.P.No.20448 of 2007 pending before the Hon’ble High Court. Lr.No.3755/Q1/2007 dated 5.10.2007 reads as under: The request made by the writ petitioner dated 8.10.2007 reads as hereunder: The further request made for sanction of permission of 10 days to make the payment of ¾ knocked down bid amount for Lankapalli Sand Quarry reads as under: The representation dated 15.10.2007 made by the writ petitioner to the Assistant Director of Mines and Geology, Vijayawada-the 3rd respondent herein, reads as hereunder: The proceeding vide Lr.No.3755/Q1/2007 dated 17.10.2007 reads as hereunder: As can be seen from the facts and circumstances, the Government while exercising powers conferred under Rule 9-K(2) of the Rules referred to supra, as amended by G.O.Ms.No.84, Industries and Commerce (M-I) Department dated 10.4.2007, had condoned the delay in execution of the lease deed, subject to the condition of the bidder agreeing to execute the lease deed by paying the balance if any, and also submitting the required documents within seven days from the date of the order and further specified that the commencement of the lease was with retrospective effect from the last date permitted for execution i.e., from 10.10.2007. Rule 9-I(2)of the Rules, no doubt, clearly specifies that the lease period shall commence from the date of the execution of the lease deed. The writ petitioner having made certain representations and having derived the advantage relating to the condonation of delay at the hands of the Government, cannot question the condition of the operation of the lease deed with retrospective effect taking shelter under Rule 9- I(2)of the Rules, especially in the light of the peculiar facts and circumstances. Rule 9-K(2) of the Rules shall also to be kept in mind in the light of the reasons recorded by the Government in the proceeding dated 7.12.2007. This Court is of the considered opinion that in the fact situation, it cannot be said that the Government is totally denude of such power of imposing a condition to the lease to be operative with retrospective effect, may be depending upon the facts and circumstances. As already specified supra, no doubt, the respondents are bound to follow the Rules. However, in the light of the peculiar fact situation, this Court is not inclined to interfere with the impugned order. The writ petition is accordingly dismissed. No order as to costs. P.S. NARAYANA, J Date: .02.2008 cvm