HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.11388 of 2007 Date: 17-01-2008 Between: B.V. Subba Rao, Kurnool. …….Petitioner. And The Government of Andhra Pradesh, Industries and Commerce (M-II) Department, Rep. By its Secretary, Secretariat, Hyderabad and others. ………Respondents. HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.11388 of 2007 O R D E R: 1. This Court issued Rule nisi on 6.6.2007. 2. The 3rd respondent filed counter affidavit. 3. Heard Sri V.Srinivas, learned counsel representing the writ petitioner, learned Additional Government Pleader for Industries and Smt.N.Shoba representing the respondents. 4. Sri V.Srinivas, learned counsel representing the writ petitioner had taken this Court through the respective pleadings of the parties and would maintain that the impugned order cannot be sustained. The learned counsel also pointed out to certain of the civil proceedings and how the petitioner is a non-party and how erroneous findings had been recorded by the 1st respondent. The learned counsel also had taken this Court through the contents of the reply affidavit and would maintain that in the facts and circumstances, the matter to be reconsidered. 5. On the contrary, the learned Assistant Government Pleader for Industries would maintain that making a conditional order itself is bad and hence the impugned order cannot be found fault with. The learned counsel representing the 3rd respondent had taken this Court through the contents of the counter affidavit of Respondent-3 and placed reliance on certain decisions. 6. Heard the learned counsel on record and perused the material placed before this Court. 7. Para Nos.22 to 28 of the impugned order reads has hereunder:- “The present Mandal Revenue Officer (Sri R. Prabhakar Rao) has issued NOC vide his letter Rc.B/772/05, dated 23-12-206 in favour of Sri B.V. Subba Rao stating that he is the Registered Lease Holder from joint pattadars i.e. Adu Lakshmamma, T. Vaidehi and Sri Subba Rao name is found in column 13 of Adangal, which shows the possession of Sri Subba Rao subject to final disposal of O.S. No.183 of 1932 and O.S. No.96 of 2006 pending in the Court of Additional Senior Civil Judge, Ongole. Based on this NOC, the Director of Mines and Geology issued quarry lease grant orders over an extent of Acs.2-25 cents in Survey No.118(P) of R.L. Puram (V), for a period of 20 years in favour of Sri B.V. Subba Rao. From the Counter affidavit filed by Sri Subba Rao it is seen that he has obtained leasehold rights over this area from the GP Holder that is Ananthobotla Venta Ramanaiah, the original owners have been given General Power of Attorney document No.593/92 dated 10-6-1992 registered at Guntur Sub Registrar Office and document No.35/1980 dated 27- 3-1980 registered at Ongole Sub Registrar Office. It is also stated therein the rights were accrued to the original owners over this property i.e. Acs.5-84 cents as per their share through the compromise decree passed by the Civil Court in O.S. No.183 of 1932. However, the original owners name was not revealed. The 2nd respondent in the Revision also stated that he was granted lease just based on the lease agreement entered between him and the General Power of Attorney holder. The very said property is now in dispute before the Civil Court at Ongole. The decree passed by the Hon’ble Court in O.S. No.183 of 1932 was not furnished by the 2nd respondent. However, the Revision Petitioner submits that he purchased Acs.2-50 cents vide registered sale deeds dated 10-11-1998, 11-11-1998, 12-11-1998, 13- 11-1998 and 14-11-1998 over an extent of 53 cents, 52 cents, 51 cents, 49 cents and 49 cents respectively from Bommisetti Prasada Rao and he is in possession and enjoyment of the land in Sy.No.118 of R.L. Puram (V), Chimakurthy (M), Prakasam District. M/s. Gem Granites Private Limited have also produced a copy of Adangal dated 26-2-2007 from Mandal Revenue Officer, Chimakurthy and the columns 12 & 13 of the said adangal indicate the patta and possession / enjoyment is held by Bommisetti Prasada Rao. The earlier Mandal Revenue Officer (P.B. Gupta) vide Lr.Rc.B/772/2005 has stated that M/s. Gem Granites Private Limited purchased the land through registered sale deed, and the land is under the possession and enjoyment of M/s. Gem Granites Private Limited and recommended for issue of NOC over an extent of Acs.2-50 cents in Survey No.118 of RL Puram in favor of Gem Granites and addressed the same to the District Collector. The District Collector has granted NOC in favor of M/s. Gem Granites Private Limited, Chimakurthi for installation of portable magazine in Survey No.118/P over an extent of 0.10 cents of RL Puram (V), after obtaining reports from the inspecting officers i.e. the S.P. of Ongole. The Mandal Revenue Officer of Chimakurthi and the Assistant Divisional Fire Officer, who enquired into the matter and recommended for grant of NOC. It is presumed that the Inspecting Officers (including MRO) must have visited the site and satisfied with the ownership of the land held by M/s. Gem Granites Private Limited before recommending to the District Collector for issue of NOC. Prima facie it appears that the very land is in dispute. It is not known why the Director of Mines and Geology issued conditional quarry lease grant orders in favour of B.V. Subba Rao, when the case is still pending for disposal in O.S. No.96 of 2006 in the Court of Additional Senior Civil Judge, Ongole, and even the injunction orders obtained by the petitioner restraining the authorities giving NOC/granting lease in favour of M/s. Gem Granites Private Limited, were vacated by the said Court. Keeping in view what is stated in the foregoing paras, there seems to be no need to consider any application for grant of quarry lease over an extent of Acs.2-50 cents in Sy. No.118/P in R.L. Puram (V), Chimakurthy (M), Prakasam District when the rightful ownership of that land is under dispute. The parties claiming the ownership over the area may have to establish their rights and title over the said area before appropriate Civil Court and come to the Government for grant of quarry lease. Government hereby set aside the conditional grant orders issued vide Proceedings No.24065/R3(2)/2005 dated 12-1-2007 issued by the Director of Mines and Geology duly vacating the stay orders dated 29-1-2007. As and when the title of the land is established by the Court of Law, the Director of Mines and Geology may grant the quarry lease with the prior permission of the Government.” 8. The writ petition is filed for a Writ of Certiorari or any other appropriate Writ to quash the order of the 1st respondent in Memo No.1219/M II (1)/2007-4 dated 4-5- 2007 and pass such other suitable orders. The relevant portion of the order already referred to above. 9. It is stated that the Survey No.118 of R.L. Puram Village, Cheemakurthi Mandal, Prakasam District is of 26 acres 16 cents and this land was a subject matter of O.S. No.183/32 on the file of District Munsif, Ongole, in a partition suit. That suit ended in a compromise decree and accordingly the final decree was passed on 25-09- 1940 by the said Court whereby the suit scheduled property was apportioned among the parties to the suit. It is submitted that Telekepalli Chinna Krishnaiah was the 2nd defendant in that suit and he also got his share in the compromise decree. He had three sons namely Satyanarayana, Venkateshwarlu and Srinivas Rao. Satyanarayana’s wife is Aadi Laxmamma and the wife of Srinivas Rao is Vydehi. Venkateswarlu died unmarried and he has no legal heirs. By virtue of the said compromise decree an extent of Acs.5.84 cents in Survey No.118 fell to the shares of the legal heirs of Satyanarayana and Srinvias Rao. The said legal heirs are Aadi Laxmamma, Vydehi and Sukumari (daughter of Satyanarayana). Those ladies have executed a power of attorney dated 10-6-92 in favour of A. Venkataramanayya in respect of the land in Sy.No.118 of R.L. Puram, Ongole District. The General Power of Attorney was registered as 593/92 in the office of Sub-Registrar, Ongole. The said GPA holder executed a lease deed dated 12-11-1998 in respect of 2 acres 50 cents in Sy.No.118 (old Survey No.36, 21 and 20 part) in favour of the petitioner herein along with A. Srinivasan. In pursuance to the said registered lease deed, the petitioner has been in exclusive possession and enjoyment of the land of Acs.2.50 cents and his name was entered in the village revenue records vide Adangal as possessor. 10. It further stated that the petitioner had applied on 14- 6-2005, under Rule 12(5) of the A.P. Minor Mineral Concession Rules, 1966 (for short “APMMC Rules”) for a quarry lease in order to do quarrying of Black Galory Granite in the leased land of Acs.2-50 cents. As per the said Rule, the application has to be made to the Assistant Director of Mines and Geology, and it was made accordingly. It is submitted that the 3rd respondent also made an application for quarry lease in respect of the same land on 2-11-2005, much later to him. It is submitted that as per Rule 12(5)(b) of the above mentioned Rules, the application for grant of quarry lease shall be disposed of by the Director of Mines in the order of their receipt. If more than one application is received on the same day, they shall be considered on their merits to be recorded in writing. As per the proviso to the said Rule the application received on a later date can be given preference only with the prior approval of the Government and for special reasons to be recorded. Evidently, his application for the quarry lease is earlier in point of time and hence he is entitled to the same vis-à-vis the 3rd respondent. 11. It is also stated that the 3rd respondent made his quarry lease application on the ground that it purchased the land of Acs.2-50 cents in Sy.No.118 of R.L. Puram under 4 Sale deeds of the year 1998 they were put in possession of the land on 10-11-1998 and they are entitled to the quarry lease. The Assistant Director has referred the applications made by him and the 3rd respondent to the Mandal Revenue Officer, Cheemakurthi for grant of No objection Certificate. The Mandal Revenue Officer vide Proceedings dated 13-12-2006 has recommended for grant of No Objection Certificate (for short ‘NOC’) in his favour after making physical inspection of the land and also after going through the title documents thereto. Thereafter, the Revenue Divisional Officer also examined the NOC given by the Mandal Revenue Officer and vide letter dated 20-12-2006 has authorized the Mandal Revenue Officer to issue the NOC in his favour. Thereafter, the Mandal Revenue Officer again wrote a letter dated 23-12-2006 to the Revenue Divisional Officer for issuing NOC in his favour. 12. Consequently, the Revenue Divisional Officer issued NOC in his favour. In so far as the 3rd respondent is concerned though the Mandal Revenue Officer recommended for NOC, ultimately the Revenue Divisional Officer did not accept the same and no NOC has been materialized in its favour. On the basis the NOC issued in his favour, the 2nd respondent passed orders dated 12-1- 2007 granting quarry lease for Acs.2-25 cents in Sy.No.118 (P) of R.L. Puram, Cheemakurthi Mandal, Prakasam District for a period of 20 years. The observation by the 2nd respondent that the quarry lease is subject to the final disposal of O.S.No.183 of 1992 and O.S.No.96 of 2006 itself is unwarranted and untenable. There is no O.S.No.183 of 1992 in respect of Sy.No.118 and it is in fact O.S.No.183 of 1932, which resulted in passing of a final decree as early as on 25-9-1940. The other suit O.S.No.96 of 2006 is also irrelevant with reference to his quarry lease since it is an injunction suit filed by one Kollapudi Singaiah against the 3rd respondent herein for an injunction not to grant NOC to the 3rd respondent herein in respect of the land in Sy.No.118. In that suit, he is not a party and the I.A. No.479 of 2006 therein was dismissed by the Additional Senior Civil Judge, Ongole on 31-7-2006. It is obviously a collusive suit between the parties therein and the 3rd respondent herein has engineered filing of that suit for creating alibi in support of its possession over the land in Sy.No.118 in order to get the quarry licence. Even the sale deeds of the 3rd respondent of November 1998 also do not confer his title on it since the vendors therein themselves are not connected to the land of Acs.2-50 cents in Sy.No.118. Moreover, the boundaries shown therein do not tally with the boundaries of the land of Acs.2-50 cents which is under his lease and for which he got the quarrying licence on 12-1-2007 from the 2nd respondent. 13. It is also averred that in pursuance to the order of the 2nd respondent dated 12-1-2007, the quarry lease deed has been executed by the Assistant Director of Mines and Geology on 12-1-2007 in his favour and he started the quarrying work. He has invested huge amount for deploying machinery and he has also engaged security guards and workers for doing the excavation. Already temporary structures have been raised for being used by his men. The mining work is going on and his labour are working on the site. The 3rd respondent filed a revision under Rule 35 A of the APMMC Rules questioning the order dated 12-1-2007 of the 2nd respondent. It contended that, it has purchased the land in November 1998 under sale deeds, it got permission for construction of explosive Magazines from the authorities for storing explosives in Sy.No.118 and that the injunction petition in O.S.No.96 of 2006 has ended in its favour. On these grounds, the 3rd respondent sought for setting aside the order of the 2nd respondent dated 12-1-2007. He filed his counter enclosing all the relevant documents including the lease deed, pahanies, proceedings of the Mandal Revenue Officer and the Revenue Divisional Officer while granting NOC etc. 14. The 1st respondent, acting under Rule 35 A of APMMC Rules 1966 has to see whether the orders passed by the 2nd respondent are legally valid and suffer from any irregularity. Unfortunately, the 1st respondent had given importance to O.S.Nos.183 of 1932 and O.S.No.96 of 2006 and formed an impression as if the land of Acs.2-50 cents is in serious disputes of title. The 1st respondent failed to see that O.S. No.183 of 1932 was finally decreed on 25-9-1940 itself and it was mere partition suit, ended in compromise. O.S.No.96 of 2006 is a suit for mere injunction and the petitioner is not a party to it. It is a collusive suit and it was created by the 3rd respondent for the purpose of gaining benefit out of it. The sale deeds produced by the 3rd respondent are fictitious and they do not confer any title on it. It is also stated that as soon as the petitioner got the quarry lease, the 3rd respondent filed O.S.No.26 of 2007 dated 24-7- 2007, on the file of Senior Civil Judge, Ongole for a permanent injunction against the petitioner relating to quarrying operations and sought for a temporary injunction in I.A.No.110 of 2007. Further, the appointment of Advocate Commissioner also had been preferred and the same was ordered in I.A.No.126 of 2007. The Advocate Commissioner visited the spot and inspected the premises on 1-2-2007 itself and filed a report observing that he found quarrying operations going on and also men of the writ petitioner were present there. He also found his name and also the name of his company ISCON granites written on the boards at the site. Thus it is clear that the petitioner has been in possession of the property. Further, it is stated that the 1st respondent passed orders on 4-5-2007 received by him on 12.5.2007 whereby the order of the 2nd respondent dated 12-1-2007 has been set aside and it has been ordered that after the title disputes are resolved, the quarrying licence can be issued. There are no title suits at all and as submitted above, the petitioner is in clear possession of the property as could be seen from the village adangals and also from the report of the Adhoc Commissioner and the 3rd respondent had manipulated certain sale deeds and failed to file any evidence in support of the possession. It never established the explosive magazine in Survey No.118 and the assumption of the 1st respondent about the satisfaction of the authorities regarding the possession of the 3rd respondent of Survey No.118 is only imaginary. The 1st respondent failed to see that the O.S. No.183 of 1932 was decreed in 1940 itself and O.S.No.96 of 2006 is a mere injunction suit to which the petitioner is not a party. Hence, there are no circumstances for forming an opinion that the land is in dispute. Even the conditions imposed by the Director of Mines in his order dated 12-1-2007 regarding O.S. Nos.183 of 1932 and 96 of 2006 themselves are unwarranted and the 1st respondent has blown up them beyond the proportion to his determent. Having filed O.S. No.26 of 2007 in the Civil Court for an injunction against the petitioner and having failed to get an injunction in I.A. No.100 of 2007, the 3rd respondent is bent upon harassing the petitioner to prevent his quarrying operations. The petitioner put to irreparable loss due to the illegal order of the 1st respondent dated 4- 5-2007 and the quarrying operations have come to an halt. 15. In the counter affidavit filed by the 3rd respondent which sworn to the Regional Manager of the Company, it is averred that Sy.No.118 of R.L.Puram Village of Chimakurthy Mandal, Prakasam District of an extent of Ac.26.16 cents and it is not true that this was the subject matter of the suit in O.S.No.183/1932 on the file of the District Munisff’s Court, Ongole, filed for partition. The said suit ended in a compromise decree and a compromise decree was passed on 25-9-1940. It is absolutely false to state that the aforesaid Court apportioned the said land among the parties to the suit. In fact, one Telikepalli Rama Swamy Sarma filed the said suit for partition and separate possession of his share. When the said suit was pending, the re-survey numbers were not there, as R.L.Puram Village is whose Inam Village within the meaning of Section 3 (2-D) of Estate Land Act, 1908. The said village was taken over by the Government under the provisions of Estates Abolition and Conversion into Ryotwari Act, 1948 and Re- survey was done in or about the year 1960. After due enquiry, the Settlement Officer granted Ryotwari Pattas to Agraharamdars or the ryots as the case may be. Prior to that R.L. Puram consisted of east Kandrika, West Kandirka and Khambhampadu Kandrika. The old survey numbers are not now in existence. Survey numbers referred to in the Petitioner’s Affidavit is Resurvey number. Unless the co-relation record is perused, it is not possible to arrive at what old survey numbers are included in Re-survey No.118. It is pertinent to note that these survey numbers were not there when the suit O.S.No.183/1932 was disposed of. It is only long afterwards the whole village was notified and taken over by the Government and Ryotwari Pattas were given to the ryots or Inamdars who are eligible for the same. It is no doubt true that Telikepalli China Krishnaiah was a party to the said suit and he got some share. It is also true that Telikepalli China Krishnaiah died leaving behind him his three sons viz., (1) Satyanarayana, (2) Venkateswarlu and (3) Srinivasa Rao. One of the sons Venkateswarlu died unmarried and issueless and he has no legal heirs. The further averments in the petitioner’s Affidavit that by virtue of compromise decree passed in O.S.No.183/1932 an extent of Ac.5.84 cents in Sy.No.118 fell to the share of the legal heirs of Telikepalli Satyanarayana and Srinivasa Rao is based on the face of it. In fact, Satyanarayana and Srinivasa Rao are not parties to the said compromise decree in O.S.No.183/1932. It is absolutely false to say that the said Ac.5.84 cents in Sy.No.118 fell to the share of Adilakshmamma, W/o.Satyanarayana, Vydehi W/o.Srinivasa Rao and Sukumari, D/o.Satyanarayana. The said three ladies never enjoyed even a cent of land in Sy.No.118 of R.L.Puram Village. Ananthabhotla Venkata Ramanayya referred to in the petitioner’s Affidavit is the son of one Venkata Ramanyya obtained a General Power of Attorney from the aforesaid three ladies and also from his mother Venkata Durgamba on 10-06-1997 and started a speculative litigation and filed two suits in O.S.Nos.116/1992 and 118/1992 on the file of the Additional Sub-Court, Ongole and later transferred to the Principal District Judge’s Court, Ongole and they are pending in O.S.No.16/2000 and O.S.No.17/2000 at present. 16. The further allegations that the General Power of Attorney Holder executed a lease deed on 12-11-1998 in respect of Ac.2.50 cents in Sy.No.118 of R.L.Puram (Corresponding to old Sy.Nos.36, 21 and 20 part) in favour of the petitioner along with A.Srinivasan and that in pursuance of the Registered Lease Deed, the petitioner has been in exclusive possession and enjoyment of the said Acs.2.50 cents of land and his name was entered in the village Revenue records and Adangals as possessor is absolutely false. Telikepalli Satyanarayana gave a declaration under the land ceiling Act in the year 1972 in C.C.No.1/OGL/75, and in that declaration he has not shown a cent of land in Sy.No.118 of R.L.Puram. This is proof positive to show that Telikepalli Satyanarayana has not possessed any extent in Sy.No.118. 17. Further, in reply to Para No.3 in the counter affidavit of Para No.4, it is stated that he had supplied in his patta land for grant of a quarry lease for granite in Sy.No.118 (P) of Acs.2.50 cents out of Acs.4.48 cents. Application was submitted following due formalities. The Assistant Director of Mines and Geology has referred the matter to the Mandal Revenue Officer in his Proceedings Lr.No.6230/Q/05, dt.02-11-2005 for issuance of No Objection Certificate over the area. The Mandal Revenue Officer along with Mandal Surveyor has inspected the area and has furnished No Objection Certificate forwarding it to the District Collector through District Revenue Officer, Prakasam District in RCB/772/05, dt.29.12.2005 that they are in peaceful and uninterrupted possession and that it is a patta land purchased vide Registered Sale Deeds and area is available for grant. The inspection report also reads that M/s.Gem Granites has established office building on the South Corner of the land. The same is forwarded to the Assistant Director of Mines and Geology, Ongole on 29- 12-2005. As a pattedar this respondent holds all the priorities for grant of a quarry lease, disposal of applications by the Director of Mines and Geology in the order of their receipt is only against a Government Land, pattedhar is entitled for a preferential right even if the application is submitted at a later point of time and there is no need and necessity of prior approval. 18. Further it is averred that that the respondent purchased Acs.2.50 of land under 5 Registered Sale Deeds, dt.10.11.1998, 11.11.1998, 12.11.1998, 13.11.1998 and 14.11.1998 from the legal heirs of One Bommisetty Mallikarjuna Rao and in fact the extent of the said land is Ac.3.00 cents not Acs.2.50 cents as mentioned in the petitioner’s affidavit. The vendor Bommisetty Mallikarjuana Rao purchased the above mentioned land from Punnapu Venkateswarlu son of Peraiah and his minor children under Registered Sale Deed, dt.30.11.1987 (Document No.180/1987 of Sub- Registrar, Chimakurthy). The schedule land was in possession and enjoyment of the vendors of the 3rd respondent for past more than 20 years. After purchase, this respondent applied for grant of No Objection Certificate before the Mandal Revenue Officer, Chimakurthy who granted No Objection Certificate by his order dt.29.12.2005 after due enquiry. By suppressing the above facts, the petitioner managed to obtain No Objection Certificate by adopting unethical methods. The No Objection Certificate