THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA WRIT APPEAL No. 883 OF 2010 JUDGMENT: (Per BPR,J) Heard the learned counsel for the appellant, the learned Government Pleader for Mines and Geology and the counsel for the impleading petitioner. The appellant who is the petitioner in the writ petition filed this appeal under Clause 15 of the Letters Patent, inter alia, seeking to assail the correctness of the order dated 29-6-2010 passed by a learned Single Judge of this Court in W.P.No.14825 of 2010, dismissing the writ petition. Briefly the facts which are not in dispute are, that in the writ petition the appellant herein sought for a Writ of Mandamus seeking to declare the action of the 1st respondent in not treating the current lease executed from 29-4-2010 to 31-3-2011 as 1st year waiving payment of 20% enhancement amount on the bid amount and not granting one month quarrying rights which period the petitioner lost due to the delayed execution of lease deed during the 2nd year as illegal and arbitrary. He contended that in the auctions that were invited by the 2nd respondent, he had participated for reach No.41 Minagallu, Nellore District and the confirming authority issued proceedings dated 18-9- 2009 confirming the bid in his favour for Rs.5.65 crores. It is further contended that the 1st respondent granted two equal installments for payment of the above lease amount and after he depositing the 1st installment of Rs.1,48,35,000/-, a writ petition in W.P.No.24328 of 2009 was filed in public interest at the behest of rival sand contractors in the area on the ground that granting installments to the individuals is contrary to the rules. He further contended that he has paid the entire lease amount in pursuance of the order passed by this Court in the said writ petition and subsequently the writ petition was dismissed as infructuous leaving it open to the officials to take further steps. The learned counsel for the appellant submits that due to pendency of the above writ petition, the 1st year lease period expired without any lease being executed and subsequently the 1st respondent issued memo dated 24-2-2010 directing the 2nd respondent to execute the lease deed imposing the following conditions: i. The amount paid by the bidder in the first year period is considered towards 2nd year lease amount and the bidder has to pay the 20% enhancement on this amount, along with all other dues to be paid, if any. ii. The bidder shall not be eligible for compensation of non-operation period in the first year lease, under any circumstances. iii. The bidder shall execute the lease deed immediately. iv. The bidder is permitted to pay the 20% enhancement on or before 30-6-2010, in view of non-conducting of the business in the first year period, after having deposited the amounts. Accordingly, the 2nd respondent had executed lease in favour of the petitioner from 29-4-2010 to 31-3-2011 subject to payment of the 20% enhancement amount on or before 30-6-2010. The appellant on obtaining the lease hold rights made a representation on 5-5-2010 stating that he could not operate the sand quarry during the 1st year though he has paid the entire lease amount of Rs.5.65 crores, that he sustained huge loss and in the 2nd year lease period he lost one month rights of quarrying as the lease was executed only on 29-4- 2010 onwards and requested to waive the payment on 20% enhancement and to extend the lease period of one more month. The learned counsel further submits that since the request was not being considered, the appellant approached this Court by filing the writ petition No.14825 of 2010 and the learned Single Judge dismissed the same at the stage of admission. It is also brought to the notice of this Court that in a case of similar nature, the 1st respondent issued memo dated 25-10-2010 whereby and whereunder lease was executed during 2nd year of the notified lease period collecting the lease amount proportionately to the extent of the days available for sand quarry in the 2nd year on calculating the knocked down bid amount and thus the learned counsel relies on the same and seeks a direction to the respondents to extend the same benefits as has been granted in the above proceedings by the 1st respondent. Per contra, learned Government Pleader submits that the lease was executed as per the conditions stipulated in the memo dated 24-4- 2010 and therefore the petitioner has to pay 20% enhancement amount as per the said condition and further that granting of one month leasehold rights beyond the lease period is contrary to Rule 9-L of the Rules 1966. After considering the submissions made on both sides and on perusal of the material on record, it is relevant to note the main contents of the memo dated 25-10-2010 issued by the 1st respondent in respect of sand reach located in Krishna District wherein the facts and the circumstances and the main content of Rule 9-L of the A.P.Minor Mineral Concessions Rules are similar to the case on hand. On considering the Rule 9-L, the learned Single Judge has rightly held that the request of the petitioner for extension of the lease period cannot be considered in view of the Division Bench Judgment i n M.V.Shiva Prasad v. Government of Andhra Pradesh[1]. However, in the instant case a perusal of the record would indicate that the auction was called for grant of lease hold rights for a period of 2 years and during the 1st year no lease was executed and for the 1st time the lease was executed only on 29-4-2010 though the appellant/petitioner deposited the entire lease amount during the 1st year lease period itself, therefore, directing the lessee to pay 20% enhancement on the knocked down bid amount for executing the lease for the 1st time for a period of not even a year is uncalled for and not in accordance with rules. A reading of Rule 9-I and Rule 9-P which provides the mode of payment, would indicate that the payment of 2nd year lease amount shall be paid along with 20% enhancement towards 2nd year lease amount on or before 45 days of expiry of the 1st year lease period and failing which the security deposit gets forfeited. In the case on hand, no lease was executed during 1st year lease period and therefore the question of payment of 2nd year lease amount on or before 45 days of expiry of the 1st year lease amount or before 45 days of expiry of the 1st year lease period along with 20% enhancement does not arise inasmuch as the 1st respondent directed the 2nd respondent to execute the lease with certain conditions only 24-4-2010. If it is the case of the Government that even without executing the lease during the 1st year period the lessee has to pay the 2nd year lease amount with 20% enhancement, they would have directed the appellant to pay the above said amounts on or before 15-2-2010 and failing which they would have forfeited the security deposit. But no such notice was issued asking him to pay the 2nd year lease amount with 20% enhancement amount before 15-2- 2010. On the other hand, in a case of this nature the 1st respondent issued memo dated 25-5-2010 permitting to commence the quarrying operations for a period of 158 days falling in the 2nd year collecting the proportionate bid amount on the available days of quarrying rights invoking its power under Rule 9-K (2) and 9-K (3) of the Rules 1966. In that view of the matter, we are of the considered opinion that directing the appellant/petitioner to pay the 2nd year lease amount with 20% enhancement is contrary to the Rule 9-P of the rules. Since the appellant has paid the 20% enhancement amount on 30-6-2010, without prejudice to his right the writ appeal is disposed of directing the respondents to refund the 20% enhancement amount paid by the appellant and to refund the proportionate bid amount for period from 1- 4-2010 to 29-4-2010 during which period no lease was executed, within a period of (4) weeks from the date of receipt of this order. Accordingly, with the directions as above, the Writ Appeal is disposed of. No order as to costs. ____________________ (B PRAKASH RAO, J) ____________________ (B.N.RAO NALLA, J) Date: 25th April, 2011 GRK [1] 2010 (2) ALD 288 (DB)