THE HON’BLE SRI JUSTICE B PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY WRIT PETITION NO. 27562 OF 2007 ORDER: (Per Sri Justice B Prakash Rao) The petitioner herein is a private limited firm, seeks writ of certiorari assailing the impugned proceedings in Memo No. 6638/SPIU & SAND/2007 —6 dated 11.12.2007 under Article 226 of the Constitution of India, where under the Government withdrew its earlier orders passed in Memo No. 6638/SPIU/2007-4 dated 3.7.2007 and directing the Director of Mines and Geology, Hyderabad to take further action keeping in view certain orders passed by this Court. Heard Smt B Shoba, learned counsel for petitioner and learned Government Pleader for Industries and Commerce for the respondents. The facts of the case as set-forth from both sides virtually run on a different context and each one trying to justify its action and also complaining against the other. According to the petitioner, as averred in the affidavit filed in support of the writ petition, in pursuance of G.O.Ms.No.1 Industries and Commerce (MI) Department dated 1.1.2001, a notification was issued in RC.No.2743/2005-pts.7 dated 14.11.2006 by the District Level Sand Committee, Krishna, notifying the sand bearing areas of Krishna district for public action, accordingly, he participated through filing a tender for Jupudi Reach of Ibrahimpatnam mandal, Krishna district and the auction was conducted on 1.12.2006. In the notification the price was quoted at Rs.2,50,000/-, however the petitioner became the highest bidder since he quoted Rs.1,05,50,000/-. The petitioner deposited 25 % of the bid amount i.e., Rs.26,52,200/- on 2.12.2006, whereas the balance 75 % of the amount has to be deposited after issuance of confirmation orders. The District Collector, though seem to have issued confirmation orders on 5.12.2006, but it was received by the petitioner on 29.12.2006, however, since the petitioner was sick and undergoing treatment, he deposited a sum of Rs.78,97,900/- on 6.1.2007 through his brother along with a medical certificate and assuring that he will deposit 2 % security deposit and income tax. However, in spite of the same, a notice in Roc.No. 2437/06-pts.5 dated 11.1.2007 was received by the petitioner on 14.1.2007 informing that the petitioner has to deposit 75% of bid amount at Rs.78,97,900/- and 2 % security deposit at Rs.2,22,000/- and 2.24 % income tax at Rs.2,36,742/- on or before 16.1.2007 and to submit a stamped agreement on Rs.500/- stamp paper. However, in the meanwhile, the agriculturists of Jupudi Gram Panchayat agitated before the office of the Collector and objected to the grant of sand lease and took up agitation and represented to the collector and the District Level Sand Committee that there is ground water depletion, whereas there is no supporting report from the Ground Water Department. Thereupon, when the petitioner made enquiries, it was found that Ground Water Department did not gave any report after conducting survey and did not gave any clearance before issuance of notification. Thereafter, the petitioner has promised that he would make necessary deposits and also enter into necessary agreement, though, by that time he has already deposited all the amounts, yet a notice in Roc No. 2437/06-pts.7 dated 5.2.2007 was issued to the petitioner. However, the fact remains that as required under Rule 9B (2) (a) of A.P. Minor Mineral Concession Rules, 1966, the necessary survey was not conducted. This has lead to filing of a writ in W P No. 1678 of 2007 questioning the aforesaid notification and same is pending. Meanwhile, since the amounts deposited by the petitioner were sought to be forfeited by the District Collector, the petitioner has filed a writ in W.P. No. 3046 of 2007 wherein this Court has given directions permitting the petitioner to enter into agreement, if so advised. However, no such agreement was executed by the District Panchayat Officer and the said writ petition is pending. In the meanwhile the Government issued G O Ms No. 24 Industries and Commerce (MI) Department dated 12.2.2007 wherein conduct of auctions of sand was withdrawn from Panchayat Raj and Rural Development Department and transferred to Industries and Commerce department with effect from the date of issuance of said orders i.e. 12.2.2007. On enquiries it was found that all the files were transferred to the Industries Department, however, in spite of the petitioners earnestness to complete the formalities, he received a notice in proceedings NO. 2437/06.pts dated 23.2.2007 on 12.3.2007 stating that entire amount deposited by the petitioner viz., Rs.1,05,50,100/- plus Rs.2,11,000/- totaling to Rs.1,07,61,100/- is forfeited due to non execution of the agreement, hence the writ petition was disposed of on 22.3.2007 directing the petitioner to avail the remedy by approaching the Government as provided for under para 16 of G.O.Ms.No.24 Industries and Commerce Department dated 12.2.2007. Accordingly, the petitioner approached the Government and raised substantial grounds whereupon, the said proceedings were allowed by the Government vide memo No.6638/SPIU(Sand)/2007-4 dated 3.7.2007 and complaining the delay in execution of the lease and permitting the Assistant Director of Mines and Geology to execute the lease deed. In the very same proceedings before the Government, it is stated that the Director of Mines and Geology reported that the notification was issued for conducting auction without obtaining Ground Water Department Report, whereas the petitioner was under an impression that the subject notification might have preceded by such report. In view of the same, the Government in exercise of its powers under Rule 9 (k) (2), condoned the delay and issued necessary directions in favour of the petitioner including to obtain the feasibility report within prescribed time, failing which it can be treated as if Ground Water Department has no objection. Questioning the said proceedings, some third parties filed W P No.17006 of 2007 and W P No. 13884 of 2007, though no interim orders were passed similar writ in W P No. 1406 of 2007 was filed wherein this Court has granted interim orders to maintain status quo. However, when the counter affidavits have been filed the petitioner therein withdrew the said writ petition on 28.8.2007, apparently, those writ petitions were filed by the persons inimical to the petitioner herein. Similarly another writ was filed in W P No. 18944 of 2007 by one Sri Cheruku Madhav Rao wherein the Division Bench of this Court dismissed the interim application by orders dated 5.10.2007. In the said writ petition there is a complaint that the petitioner is carrying illegal quarry operations, however, same was not found correct and it was denied. Since, there was no attempt on the part of the Governmental authorities to conduct the survey, the petitioner got the ground water survey done through Natural Resources Development Cooperative Society Limited, which favoured the quarry activity without affecting any borewell, filter points or aquifer. The said report was submitted to the Government requesting that a separate survey be done by the concerned Ground Water Authorities. However, surprisingly the impugned orders dated 11.12.2007 were issued whereunder the Government withdrew the earlier orders issued in favour of the petitioner dated 3.7.2007. Further to utter surprise it was stated in the said proceedings as if the petitioner has participated and highest bidder for two reaches viz., Thotlavalluru and Jupudi, which is not correct, in fact, the petitioner has submitted his bid only for Jupudi reach but not for Thotlavalluru reach. Further, the main complaint of the petitioner, apart from several other grounds as sought to be urged on merits is to the effect that the impugned orders dated 11.12.2007 which sought to vary the earlier orders dated 3.7.2007 in his favour are without any notice and opportunity and therefore the entire action is vitiated and opposed to principles of natural justice and hence liable to be set aside. The petitioner further submits that having regard to the substantial amounts he has already deposited as mentioned above and complied with the requirements, any denial in regard to the activity by not granting lease in his favour affects the substantial rights and causes irreparable loss and injury. In these circumstances, the petitioner seeks to set aside its orders dated 11.12.2007. Hence, the writ petition. In the counter filed by the 4th respondent/sworn to by Mr B.A.Srinivasulu, Assistant Director of Mines and Geology, Vijayawada there is reference to all the sequel of facts as mentioned by the petitioner himself and complaining that the petitioner has not paid all the amounts as required under the rules and notification in spite of issuance of telegraphic notice dated 19.1.2007 and therefore forfeiture has been made rightly. As regards the orders passed by the Government on 3.7.2007 it was pointed out that the Deputy Director, Ground Water Department, Vijayawada vide his letter No. 336/Hg/SR/2007 dated 8.8.2007 reported that the proposed reach of Jupudi is rejected for sand quarrying due to existing filter point wells within 500 Mts distance and it attracts Rule 23 (4) of A.P. WALTA under sand mining. Hence, in view of the existing filter points and wells in and around the reach area and same being situated in lithostatigraphic unit of river alluvium will be influenced by the base flow and the river flow, hence it is not feasible to grant any such lease in favour of the petitioner. That apart though several other allegations were sought to be made in the counter affidavit, it only restricted to the extent of his official capacity rather than spelling out anything in regard to the impugned proceedings issued by the Government dated 11.12.2007 withdrawing the earlier orders dated 3.7.2007 in favour of the petitioner. Nothing is pointed out as to why and what prompted the Government to vary with the orders without issuance of the notice as complained by the petitioner, however, the respondents sought for dismissal of the writ petition. No counter affidavit has been filed by first respondent, whose orders are impugned in the present writ petition. On an over all consideration of the entire facts and material and after taking into consideration the respective submissions from both the sides and on perusal of the material, the only short point which rests for consideration is as to whether on the facts and circumstances, the impugned order dated 11.12.2007 is sustainable? Shorn of all details as narrated to and might have taken place in respect of sand auction, apart from several other developments under the law and in regard to the authorities who have to conduct the auction, the fact remains that there exist an order in favour of the petitioner dated 3.7.2007 wherein the Government after taking into consideration the very same objections in regard to the absence of Ground Water Level report, still condoned the delay and directed necessary follow up action to be taken. In spite of the same, nothing has been done and that is why the complaint of the petitioner still subsists, however, as bolt from blue, without any notice or opportunity being provided for, the impugned orders are came to be passed by the very same government on 11.12.2007. There is no explanation forthcoming on behalf of any of the respondents either as to why the petitioner could not possibly be given notice, which is highly improbable and at this juncture with so much of development on the formalities required to be complied with on the basic principles of natural justice, it is too late in the day to say that the petitioner would not have been given a notice, especially where there exist an order in his favour at one point of time. Necessarily when such orders are sought to be varied with, especially detrimental to the petitioner, it cannot be said that no notice need be given. Though several contentions were sought to be made on by respondents on merits as to why the petitioner possibly could not be given any such lease, however, it is not necessary to dwell into the same at this juncture, since the writ petition is being disposed of on very short ground for want of notice and opportunity. Admittedly, there is no notice or opportunity given to the petitioner before passing the impugned order dated 11.12.2007. It cannot be said that any such notice can be dispensed with by government nor can be favoured to be dispensed with by them. In the circumstances, we hold that the impugned orders are totally bereft of mandate of following the principles of natural justice and fair play and accordingly liable to be set aside. Hence, the impugned orders dated 11.12.2007 are hereby set aside and the matter is remitted back to the Government for afresh disposal in accordance with law, after affording reasonable opportunity to all the concerned including the writ petitioner and to pass appropriate orders on merits. Time for consideration and passing appropriate orders shall be within four weeks from the date of receipt of a copy of this order. Subject to above, the writ petition is allowed. No costs. _______________ B PRAKASH RAO,J ________________ G.V.SEETHAPATHY.J DATE: 25-10-2010 TVK /RRB