IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY SIXTH DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE P.S.NARAYANA WRIT PETITION NO : 7355 of 2007 Between: M/s.Exotic Granite Exports, H.no.8-3-988/29, SBH colony Srinagar colony, Yellareddyguda, Hyderabad rep.by its Managing partner Sri.K.Ramachandra Reddy ..... PETITIONER AND 1 The Government of Andhra Pradesh, rep.by its Secretary Industries & commerce (M.II) Department, secretariat Buildings, Hyderabad 2 The Government of Andhra Pradesh, rep.by its Principal Secretary, Environment,Forest Science and Technology (For.I) Department, secretariat Buildings,Hyderabad 3 Principal Chief Conservator of Forests, Government of Andhra Pradesh, Tuljaguda complex, APHB building M.J.Market, Hyderabad 4 The Government of India, Ministry of Environment and Forest, Regional office (southern Zone), Kendriya Sadan, 4th floor,E&F wings, 17th Main Road, 2nd Block, Koramangala, Bangalore-560034 5 The Director of Mines and Geology, Government of Andhra Pradesh, 8th floor,BRKR Bhavan, Hyderabad rep.by its Director Sri V.D.Raja Gopal 6 The Andhra Pradesh Mineral Development corporation Ltd., Pancom Business centre, 2nd & 3rd floors, 8-3-945, Ameerpet, Hyderabad-500073 rep.by its Vuice chairman & Managing Director Sri V.D.Raja Gopal .....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 quash the proceedings of the 1st respondent herein Memo No.1220/M.II(1)/2007 dated 16.3.2007 (P1) by issuing an appropriate writ order or direction more particularly one in the nature of writ of mandamus declaring that the same is arbitrary, unreasonable unjust, violative of the principles of natural justice and the Fundamental Rights guaranteed to the petitioner under Articles 14 and 19(1)(g) of the constitution of India and also the provisions of section 2 of the Forest(Conservation)Act and the Rules made under section 4(1) of the Act and issue a consequential direction to the 4th respondent to grant mining lease in favour of the petitioner in respect of 4.916 Hectares of forest land in compartment No.1148 of Ingurthy East, R.F., Mahaboobabad Range, Warangal South Divison, Warangal District and pass Counsel for the Petitioner:MR.C.SUDESH ANAND Counsel for the Respondent No.: GP FOR INDUSTRIES & COMMERCE The Court made the following : THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.7355 of 2007 ORDER: 1. Heard Sri S.Venkat Reddy, the learned Senior Counsel representing the writ petitioner, the learned Government Pleader for Industries and Commerce, the learned Government Pleader for Forests, the learned Assistant Solicitor General and also Sri S.R.Ashok, the learned senior Counsel, representing the respective respondents. 2. The writ petitioner M/s.Exotic Granite Exports, filed the present Writ Petition praying for quashing the proceedings of 1st respondent in Memo No.1220/M.II(1)/07, dated 16-3-2007 (P1) by issuing an appropriate writ, order or direction, more particularly one in the name of Writ of Mandamus declaring that the same is arbitrary, unreasonable, unjust, violative of the principles of natural justice and financial rights guaranteed to the petitioner under Articles 14 and 19(1)(g) of the Constitution of India and also the provisions of Section 2 of the Forest (Conservation) Act and the Rules made under Section 4(1) of the Act and issue a consequential direction to the 4th respondent to grant mining lease in favour of the petitioner in respect of 4.916 Hectares of forest land in Compartment No.1148 of Ingurthy East R.F. Mahaboobabad Range, Warangal South Division, Warangal District and to pass such other suitable orders. 3. W.P.M.P.No.34520/07 is an application praying for amendment of the prayer in the Writ Petition and the same reads as hereunder : “It is therefore prayed that this Hon’ble Court may be pleased to quash the proceedings of the 1st respondent herein in Memo No.1220/M.II(1)/07 dated 16-3-2007 and the proceedings of the 2nd respondent in G.O.Ms.No.135, EFS & T Department, dated 4-12-2007 by issuing an appropriate writ, order or direction, more particularly one in the nature of Writ of Mandamus declaring that the same are arbitrary, unreasonable, unjust, abuse of process of Court, gross contempt of Court, violative of principles of natural justice and the financial rights guaranteed to the petitioner under Articles 14 and 19(1)(g) of the Constitution of India and also the provisions of Section 2 of the Forest (Conservation) Act and the Rules made under Section 4(1) of the Act and issue a consequential direction to the 4th respondent to grant mining lease in favour of the petitioner in respect of 4.916 Hectares of forest land in Compartment No.1148 of Ingurthy East R.F. Mahaboobabad Range, Warangal South Division, Warangal District and pass such other order or orders as are deemed fit and proper in the circumstances of the case”. 4. The Counsel representing the respective parties made elaborate submissions – Sri Venkat Reddy, learned senior Counsel representing the writ petitioner stating that in the facts and circumstances, the amendment application to be allowed and on the contrary the respective Counsel representing the respondents opposing the same on the ground that it is totally a different cause of action and hence amendment application cannot be allowed. 5. It is averred in para-3 of the affidavit filed in support of the amendment application that notice was ordered in the Writ Petition on 12-4-2007. The 2nd respondent did not file any counter so far in the Writ Petition and in the Stay Petition. All of a sudden, on 7-12- 2007, the Government Pleader for the 2nd respondent in the High Court served a copy of G.O.Ms.No.135, dated 4- 12-2007 on the petitioner’s Counsel. The 2nd respondent also refused to make available the records of the 2nd respondent for perusal of the Counsel for the petitioner, despite the letter dated 2-12-2007 addressed to the Government Pleader for respondent No.2 under the Writ Rules. It is further stated in para-4 that by and under the G.O.Ms.No.135, dated 4-12-2007 the 2nd respondent cancelled its orders issued in G.O.Ms.No.8, EFS & T Department, dated 11-1-2007 in favour of the petitioner and directed the 3rd respondent to submit the proposal of M/s. APMDC Limited., the 6th respondent, under the Forest Conversation Act for diversion of the said area for extraction of black granite. The said action was taken pursuant to the request made by the Industries and Commerce Department of Government of A.P., the 1st respondent herein, vide U.O.No.1220/M.II(1)/2007-2 dated 5-5-2007, referred to in the said G.O. which is reproduced hereunder:- “4. In the U.O. 6th read above, the I&C Department has also requested the EFS & T Department., to cancel the G.O.Ms.No.8, EFS & T Department, dated 11-1-2007 where Forest clearance was given to M/s.Exotic Granites which does not have Quarry lease and grant NOC for Forest Clearance to APMDC, a State Government Public Sector Undertaking (PSU) which has been given the Quarry lease in Govt.Memo No.1220/M.II(1)/2007 dt.16-3-2007 on the following grounds”. It is further stated that the action of the 1st and 2nd respondents taken pending the disposal of the above Writ Petition and the said WPMP after receiving the notice in the same and the 2nd respondent without filing any counter to the same, amounts to abuse of process of Court and renders the 1st and 2nd respondents guilty of gross contempt of Court. Besides the same, the petitioner was not heard before passing the said G.O. and as such the same is violative of principles of natural justice and the same is liable to be set aside on that ground alone. The action is designed to defeat the ultimate relief that is likely to be granted to the petitioner. The action also makes the WPMP infructuous. It is also further stated in para-5 that in the aforementioned circumstances, the petitioner is constrained to file the present application seeking stay of all further proceedings pursuant to G.O.Ms.No.135, EFS & T Department, dated 4-12-2007, pending disposal of the above Writ Petition and also seeking an additional prayer in the Writ Petition for a declaration that G.O.Ms.No.135, EFS & T Department, dated 4-12-2007 is issued in utter violation of the principles of natural justice, abuse of process of Court and gross contempt of this Court. The affidavit filed in support of the above Writ Petition may be read as a part of this affidavit. 6. In the light of the facts and circumstances, in stead of driving the writ petitioner to yet another Writ Petition, inasmuch as in the light of the close nexus between the factual matrix and this being a subsequent event and a consequential proceeding, in a way, this Court is not inclined to drive the writ petitioner to yet another litigation and accordingly the amendment application W.P.M.P.No.34520/2007 is hereby ordered. 7. The prayer in the Writ Petition initially and the prayer which had been prayed for by virtue of the amendment application already had been specified above. 8. Sri S.Venkat Reddy, the learned senior Counsel representing the writ petitioner had taken this Court through the relevant provisions of the Forest Conservation Act and also the relevant provisions of the Mines & Minerals (Development & Regulation) Act, 1957 and the Rules and would maintain that this is a case of overlooking the priority without any reason whatsoever. The learned senior Counsel pointed out to relevant material papers filed along with the Writ Petition and also the additional material papers as well and had taken this Court through the impugned actions, the impugned action questioned in the Writ Petition originally and also the further impugned action further questioned by way of an application praying for amendment and would maintain that this is a case where respondents 5 and 6 were manned by the same person at the relevant point of time and having granted stage-1 and stage-2 approvals and having handed over possession, overlooking the priority and going back on the proposals would amount to depriving the writ petitioner of the valuable rights accrued to the writ petitioner to be considered on priority basis in accordance with Law. In the light of the facts and circumstances, it is clear that the writ petitioner would legitimately expect the further finalisation and in fact the petitioner had entered upon the work and had spent huge amount and at this stage, making such an order on the ground of giving preference to the 6th respondent, definitely cannot be sustained. The learned senior Counsel also would maintain that it cannot be said that this is only a preliminary order and further it cannot be contended that the petitioner can approach the Director of Mines & Geology again and the Director of Mines & Geology would reconsider the same, these contentions are unsustainable contentions. The learned Counsel in elaboration had taken this Court through the different provisions of the Forest Conservation Act and also pointed out to the relevant portions of the affidavit filed in support of the Writ Petition and also the respective counter affidavits and ultimately would conclude that inasmuch as substantial justice to be done, the impugned actions to be quashed. 9. The learned Government Pleader for Industries representing the respondents 1 and 5 would maintain that this is only a preliminary order and at the appropriate stage, the same can be challenged. Even otherwise, this discretion had been exercised by virtue of the proviso to Rule 12(5)(b) of the A.P. Minor Mineral Concession Rules, 1966, referred to as “Rules” hereinafter for the purpose of convenience. The learned Government Pleader for Industries also had taken this Court through Section 11 of the A.P. Mines & Minerals (Development & Regulation) Act, 1957, in short referred to as “Act” for the purpose of convenience. The learned Government Pleader for Industries would maintain that the second application was taken on priority basis. No decision had been taken till today by the Director of Mines & Geology. The State Government had not granted mining lease in favour of the 6th respondent. The learned Government Pleader for Industries also would maintain that the Forest Conservation Act or the Rules made thereunder or the permissions, if any granted, they do not govern the grant of mining lease at all. The learned Government Pleader for Industries also had referred to G.O.Ms.No.181, the guidelines while granting exemption in forest area and ultimately the Government Pleader for Industries would maintain that at the best, it is only a right to be considered and at this stage, the question of issuing notice before making the order would not arise. It is only an approval by the State Government to dispense with the priority and no grant is made till today and hence the Writ Petition is premature. The learned Government Pleader placed strong reliance on certain decisions as well. 10. The learned Government Pleader for Forests had taken this Court through the relevant provisions of the Forest Conservation Act and also pointed out to the last para of G.O.Ms.No.135 and also pointed out to G.O.Ms.No.8 and the relevant clauses. The learned Government Pleader for Forests asserted that possession had not been given. The learned Government Pleader also explained under what circumstances the application of the 6th respondent is being forwarded. It is only a mere permission and there is no legal right as such of the petitioner which had been infringed to approach the writ Court. 11. The learned Assistant Solicitor General had taken this Court through the relevant provisions of the Forest Conservation Act and also the Act and the relevant Rules and would explain the scope and ambit of these Enactments. 12. Sri S.R. Ashok, the learned senior Counsel representing the 6th respondent would maintain that the said Raja Gopal was not impleaded as eo nominee party and hence personal allegations cannot be made as against the said Raja Gopal as though he is otherwise interested having manned both respondents 5 and 6 at the relevant point of time. It may be true that stage-1 and stage-2 approvals had been obtained, but however the Memo dated 1-9-2005 is of considerable importance. The Memo is dated 1-9-2005, whereas the first approval was on 27-6-2006. The Memo is prior to the first approval. Even otherwise the Forest clearance would not confer any right whatsoever relating to grant of mining lease. There cannot be any doubt or controversy relating to the expertise or technical qualifications of the 6th respondent to carry on the mining operations and these aspects would not be considered while considering the approvals, if any under the Forest Conservation Act. The learned senior Counsel also had referred to Section 11(5) of the Act and the Counsel also would maintain that there is no fundamental right, no vested right, no statutory right at least. At the best it is a case to be considered. The allocation to the 6th respondent would be beneficial to the public exchequer. The Corporation is having the special expertise and knowledge. The Government in exercise of power under Rule 12(5)(b) of the Rules passed the order since the reason being benefit to the public exchequer and hence the discretion exercised in this regard cannot be found fault. Even otherwise, the writ Court to be slow in interfering with such decisions. The Corporations constitute a separate class by themselves. The learned Counsel also in elaboration explained the relevant G.Os. and Article 162 of the Constitution of India. The learned senior Counsel also would maintain that the Memo is not contrary to any Legislation. The mistake initially done had been rectified and in the light of the Memo, orders had been recalled, the question of promissory estoppel or legitimate expectation cannot be made the grounds of attack. At the best, it is an intermediate order subject to further consideration. The 5th respondent had not filed counter affidavit but the 5th respondent is taking the same stand as that of the 6th respondent. Absolutely no mala fides had been attributed to the said Raja Gopal. When an officer is acting bona fide for protecting the public exchequer, such officer cannot be attacked on untenable grounds. The question of issuance of prior notice would be an empty formality since the result would be the same. In such cases, the question of violation of principles of natural justice also cannot be complained of. The order made in the Writ Appeal also had been explained. The learned senior Counsel placed strong reliance on several decisions in this regard. 13. Heard the Counsel. 14. On 2-12-2002, the petitioner made an application to the Assistant Director of Mines & Geology, Warangal for grant of quarry lease to quarry granite useful for cutting and polishing over an extent of 10 Hectares of forest land in Compartment No.1148 of Ingurthi Reserve Forest, under the provisions of Rule 12(5)(a)(iii) of the A.P. Minor Mineral Concession Rules, 1966. The Assistant Director of Mines and Geology, Warangal by his letter dated 2-12-2002 forwarded the application of the petitioner to the Divisional Forest Officer, Warangal South, Warangal to process the said application under Section 2 of the Forest (Conservation) Act, 1980. By and under the same proceedings, the Assistant Director requested the Divisional Forest Officer to depute the concerned officer for joint survey on 16-12-2002 in respect of the land applied for by the petitioner. After the joint survey, the petitioner submitted a revised application on 25-3-2003 to the Assistant Director of Mines and Geology, Warangal for grant of quarry lease in Compartment No.1148 of Ingurthy Forest Range and the same was forwarded to the Divisional Forest Officer, Warangal for processing of the proposals. On 4-11-2003, the petitioner submitted fresh proposals to the Principal Chief Conservator of Forests, Hyderabad, the 3rd respondent under Rule 6(1) of the forest (Conservation) Rules 2003 issued under Section 4 of the Act. The office of the 3rd respondent registered the proposals of the petitioner on 20-11-2003 at Sl.No.159 and forwarded the same to the Divisional Forest Officer, Warangal for site inspection and furnishing necessary information. The Assistant Director of Mines & Geology, Warangal by his letter No.1087/Q/2003 dated 9- 3-2005 issued a certificate to the petitioner describing the quality and quantity of the granite available in the area applied for by the petitioner. The said letter had been issued pursuant to the instructions given by the 5th respondent as is clear from the said letter. It is further stated that by the letter dated 27-6-2005, the Government of A.P. recommended the proposals of the petitioner to the 4th respondent seeking prior approval in accordance with Section 2 of the Act. Thereafter the 4th respondent accorded Stage-I approval to the project of the petitioner by and under proceedings dated 27-6-2006. Pursuant to the same, the Divisional Forest Officer, Warangal South Division by letter dated 31-7-2006 called upon the petitioner to deposit a sum of Rs.44,60,974/- towards the cost of afforestation, regeneration of safety zone area and net present value of the forest area measuring 4.916 Hectares and deliver the originals of mutation certificates, adangals and sale deeds relating to the identified non- forest land transferring and mutating the same in favour of the Government of A.P., Forest Department. In compliance with the same, the petitioner deposited the said sum of Rs.44,60,974/- by way of 6 demand drafts as specified in the letter dated 31-7-2006 addressed by the petitioner to the Divisional Forest Officer, Warangal and the same was acknowledged by the Divisional Forest Officer, Warangal. That apart, the petitioner purchased an extent of 1.64 Hectares of land in Nagaram village and 4.31 Hectares of land in Katrapalli village of Warangal District incurring an expenditure of Rs.8,64,885/- towards land cost, stamp duty and registration fees and thereafter registered the said lands in favour of the Forest Department under registered sale deeds dated 2-8-2006 bearing document Nos.1016 and 1017 of 2006. It is further stated that the petitioner also complied with the other requirements of the letter dated 31-7-2006 of the Divisional Forest Officer and intimated the same to the Divisional Forest Officer by a letter dated 18-10-2006. Along with the said letter, the documents in proof of compliance of the requirements of the said letter were also handed over to the Divisional Forest Officer. It is further stated that to comply with all the requirements of the letter dated 31-7-2006, in addition to deposit of Rs.44,60,974/- deposited by way of 6 demand drafts, the petitioner incurred a further expenditure of Rs.8,09,000/- towards land cost and Rs.1,32,930/- towards stamp duty and registration fees. Thereafter on 30-11-2006, the 3rd respondent submitted compliance report to the 2nd respondent based on the report submitted by the Divisional Forest Officer, Warangal South Division and requested for onward transmission to the Government of India for Stage-II approval. Thereafter the 4th respondent by proceedings dated 22-12-2006 accorded Stage-II approval for the project of the petitioner for a period of 10 years subject to certain conditions specified therein. It is further stated that on 11-1-2007 the 2nd respondent issued G.O.Ms.No.8 according permission to the 3rd respondent for diversion of 4.916 Hectares of forest land in Ingurthy East R.F., Mahaboobabad Range, Warangal South Division, Warangal District for extraction of black granite in favour of the petitioner for a period of 10 years subject to the conditions specified therein. After receipt of the said G.O., the petitioner addressed a letter to the 5th respondent for grant of quarry lease in its favour in terms of G.O.Ms.No.8 dated 11-1-2007. On 31-1-2007 the petitioner submitted a letter to the 1st respondent requesting for grant of quarry lease in terms of G.O.Ms.No.8 dated 11-1-2007. It is also further stated that on 1-2-2007, the office of the Chief Minister issued proceedings No.1119/CMP/2007 to the Secretary, Industries (Mines) Department, instructing that the representation made by the petitioner to grant quarry lease for an extent of 4.916 Hectares in Compartment No.1148, Ingurthy East Reserve Block of Mahaboobabad Range, Warangal District as it got clearance from the Forest Department, may be examined and necessary action be taken. On 13-2-2007, the project land of 4.916 Hectares was handed over to the petitioner pursuant to G.O.Ms.No.8 and proceedings of the Divisional Forest Officer, Warangal dated 9-2-2007. It is also further stated that the 6th respondent also made an application on 5-8-2003 for grant of quarry lease over an extent of 5 Hectares in Compartment No.1148, Ingurthy Forest Range. On 3-6-2004, the proposals submitted by the 6th respondent for grant of mining lease in Ingurthy Forest Range were returned for compliance of certain objections. To the best of the knowledge of the petitioner, the 6th respondent had not so far submitted proposals complying with the objections raised in the letter dated 3- 6-2004. The same is also borne out by the counter affidavit filed by the 2nd respondent in W.P.No.17918/2005 which was filed by M/s.Madhu Industries, one of the applicants for grant of mining lease in the same area. In paragraph-4 of the said counter affidavit, it is stated: “4. It is also submitted that two more cases of APMDC Hyderabad and M/s. Reliance Granites Private Limited were also registered at Serial No.18 & Serial No.178. Applications of these parties were forwarded to D.F.O., Warangal (South) for processing. However these two applicants are not fulfilling the required formalities as required under F(C) Act”. It is also further stated that while matters stood thus, the petitioner came to know that the 1st respondent issued instructions to the 5th respondent to overlook the claims of the petitioner and grant mining lease in favour of the 6th respondent. It is stated that the petitioner has to be granted the mining lease in view of the No Objection Certificate granted in favour of the petitioner by the Government of India as already stated above. The 1st respondent unjustly, unreasonably and contrary to the Act and the Rules and the law laid down by this Court directed the 5th respondent to take steps to grant lease in favour of the 6th respondent. The proceedings of the 1st respondent giving the aforesaid directions to the 5th respondent to favour the 6th respondent is not communicated to the petitioner. The petitioner therefore made an application dated 23-3-2007 invoking its right under the Right to Information Act, 2005 to the Joint Director of Mines & Geology and State Public Information Officer, requesting to furnish a copy of the proceedings