THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.11864 of 2009 Date : 7-9-2009 Between: R.Anantha Narayanan .. Petitioner And Government of Andhra Pradesh, Rep. by its Secretary, Industries & Commerce (Mines-II) Department, Secretariat, Hyderabad And others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.11864 of 2009 ORDER: 1. W.V.M.P.No.2686/2009 is filed by 5th respondent in the Writ Petition to vacate interim suspension granted in W.P.M.P.No.15287/2009 dated 18-6-2009 and to pass such other suitable orders. When the vacate application is taken up for hearing Sri N.Subba Rao, the learned Counsel representing the writ petitioner and Smt.A.Varalakshmi, the learned Counsel representing the 5th respondent in the Writ Petition/vacate petitioner and the learned Assistant Government Pleader for Mine and Geology representing the respondents 1, 2, 3 and 4 made a request for final disposal of the Writ Petition and hence the Writ Petition is being disposed of finally. 2. Sri N.Subba Rao, the learned Counsel representing the writ petitioner had taken this Court through the order which is challenged in the present Writ Petition and would person that the statutory authority is expected to record reasons in accordance with Law and in stead as can be seen from the reasons which had been recorded at para-6 of the order under challenge, it is clear that with a sympathetic view the Revision application filed by the 5th respondent had been allowed. This cannot be sustained. The learned Counsel also had brought to the notice of this Court the Circular wherein it has been specified that two chances alone to be given and apart from this aspect of the matter, the learned Counsel also had drawn the attention of this Court to Rules 12 and 35-A of A.P. Minor Mineral Concession Rules 1966 (hereinafter in short referred to as “Rules” for the purpose of convenience) and would maintain that at any stretch of imagination it cannot be said that the order under challenge had been made in accordance with Law. 3. The learned Assistant Government Pleader for Mines and Geology had taken this Court through paras 3, 4, 5 and 6 of the order under challenge and would maintain that the reasons being self- explanatory, inasmuch as a speaking order had been made by the 1st respondent, this is not a fit matter to be interfered with under Article 226 of the Constitution of India. 4. Smt.A.Varalakshmi, the learned Counsel representing the 5th respondent had taken this Court through the counter affidavit filed in support of the vacate application and would maintain that whether this application is prior in point of time and whether such application is in accordance with the Rules, these aspects may have to be gone into at the appropriate stage. The Counsel also would maintain that in the light of what had been stated in para-4 it cannot be said that the order was made by the 1st respondent/statutory authority only on sympathetic consideration but reasons had been recorded and since this being a speaking order, this is not a fit matter to be interfered with under Article 226 of the Constitution of India. The learned Counsel also would maintain that the mere mention made in the Circular relating the giving of two chances being only a Circular, there can be exceptional circumstances where there can be deviation after recording reasons. Hence, viewed from any angle, since the order under challenge does not suffer from any illegality whatsoever, the Writ Petition to be dismissed. 5. Heard the Counsel, perused the averments made in the affidavit filed in support of the Writ Petition and also the averments made in the counter affidavit filed by the 5th respondent. 6. The Writ Petition is filed for a writ of mandamus declaring Memo No.16960/M.II(1)/2008-2 dated 22-5-2009 issued by the 1st respondent as contrary to the Rules and to set aside the same and consequently to direct the respondents to grant mining lease in favour of the petitioner to an extent of 10.000 hectares in Sy.No.514 of Illapavuluru village, Chimakurthy Mandal, Prakasam District and to pass such other suitable orders. 7. The relevant portion of the order under challenge reads as hereunder:- “In order to dispose of the Revision Application a personal hearing was conducted on 17-12-2008. The petitioner and the Counsel on behalf of the pending applicant in the subject area have attended for the hearing and putforth their grievances. During the hearing the petitioner has submitted that due to ill- health he could not attend for the survey and inspection and requested for one more chance for attending the survey and inspection. After hearing the arguments, the Government by exercising the powers conferred under Rule 35-A of APMMC Rules and by taking a sympathetic view, hereby allow the Revision Application filed by Sri B.Aswani Kumar, duly setting aside the Proceedings No.19834/R3-2/2007 dt.12-9-2008 of the Director of Mines & Geology, Hyderabad and granted one more chance to the petitioner for attending the survey and inspection, which shall be completed within a period of three months. The Director of Mines & Geology, Hyderabad, is requested to take necessary action in the matter.” 8. The case of the writ petitioner is that the 5th respondent filed an application before the 4th respondent on 4-5-2007 for grant of quarry lease to an extent of 4.00 hectares in Sy.No.514 of Ilapavuluru village, Chimakurthy Mandal, Prakasam District. It is further stated that pursuant to the said application made by the 5th respondent, the 4th respondent vide letters dated 4-5-2007 and 8-8-2007 requested the 5th respondent to attend for survey and inspection as per the dates mentioned in the said notice. The proceedings issued by the respondents 2 to 4 clearly indicate that the 5th respondent failed to attend the survey and hence on elaborate consideration and having found that the signatures of the licenced surveyor have not been obtained on the applied sketch as required under Rule 12 and also scaled sketch was not annexed to the application as required to enable the official respondents to identify and demarcate the land at the time of survey and also as he failed to attend the survey and inspection even after giving two opportunities by the 4th respondent, his application was rejected after issuing show cause notice and after giving an opportunity to the 5th respondent by proceedings dated 12-9- 2008. It is also further stated that the procedure for granting lease is enumerated in Rule 12 of the Rules. As per the said Rule, whenever more than one application is made for grant of quarry lease, the same has to be considered in the order of preference by taking into consideration the date of application for granting such licence in respect of such area. In the instant case, initially the 5th respondent made an application to the 4th respondent without following the procedure and without annexing the material as required under Rule 12 of the Rules and as such the application made by the 5th respondent cannot be said to be valid in the eye of law. However, the respondents 2 to 4 issued notice on two occasions as indicated above asking the 5th respondent to attend survey, but he failed to attend the same. In the interregnum the petitioner made an application to the respondents for granting mining lease to an extent of 10.000 hectares in Sy.No.514 of Illapavuluru village, Chimakurthy Mandal, Prakasam District even prior to the issuance of the notice to the 5th respondent for conducting survey. In compliance with Rule 12 of the Rules, the extent of land which was sought to be leased out in favour of the petitioner was surveyed and demarcated on 17-7-2007 and the petitioner’s application was forwarded to the 4th respondent for taking necessary action and for calculation of availability of mineral area free from encumbrances. The Tahsildar concerned had also given No Objection Certificate in favour of the petitioner in proceedings No.C/1817/2007 dated 1-11-2007. Thereupon, the 4th respondent processed the application of the petitioner and recommended for grant of mining lease to the 2nd respondent through the 3rd respondent. While the matters stood thus, the 5th respondent with mala fide intention, having not chosen to attend the survey and inspection and also without obtaining No Objection Certificate from the Tahsildar concerned, filed a Revision before the Government questioning the proceedings of the 2nd respondent dated 12-9-2008. It is further stated that it is relevant to state that even prior to such Revision, except entering into mining lease, all other process had been completed to grant mining lease in favour of the petitioner. Immediately, having knowledge of the filing of the Revision before the 1st respondent, the petitioner filed an application to implead the petitioner as a party- respondent to the said Revision as he is the affected party by bringing to the notice of the Government the factual situation. Ignoring all the facts which were placed before the 1st respondent, the 1st respondent issued the impugned proceedings in contravention of the Memo issued by the Government dated 16-1-2008 contrary to the stand taken earlier by the Government. It is also further stated that the impugned proceedings suffers from infirmities as it does not contain any reasons for taking sympathetic view as the same is in contravention of Rule 12 of the Rules. It is also further stated that as per Rule 12(5)(d) of the Rules, the Director of Mines and Geology shall reject the application for prospective lease or quarry lease in the event of any default on the part of the applicant in attending the inspection and survey or submission of valid mineral revenue clearance certificate or any other material papers required by the Director. The aforesaid facts clearly indicate that the 5th respondent failed to furnish the required material as required by the Director and as such his application is deemed to be valid application. It is also further stated that the 5th respondent did not chose to enclose to his application the sketch drawn to scale and the rough sketch filed by the 5th respondent does not contain the signature of the surveyor. In the absence of such information, the application made by the 5th respondent is contrary to Section 12(5)(a) (1) and 12(5)(d) of the Rules. As per Section 12(5)(a)(i) of the Rules, each application shall be accompanied by a sketch drawn to scale demarcating the boundaries for easy identification on the ground duly signed by the applicant and a qualified surveyor. The proceedings issued by the 2nd respondent and reversed by the 1st respondent clearly indicates that the application of the 5th respondent does not contain the sketch drawn to scale signed by the qualified surveyor. As such the 1st respondent ought to have taken a decision holding that the application made by the 1st respondent is defective application. The 5th respondent is not entitled to any relief. In the Revision filed by him before the 1st respondent, unfortunately, ignoring Rule 12 of the Rules, without assigning any valid reasons, the 1st respondent passed the impugned proceedings as if the 5th respondent is entitled for sympathetic consideration. It is also further stated that the order passed by the 1st respondent is contrary to the Rules and as such the same is liable to be set aside. The order passed by the 1st respondent is contrary to Rule 12 of the Rules. The 1st respondent while issuing impugned proceedings failed to appreciate that the application made by the 5th respondent was not accompanied by the sketch drawn to scale demarcating the boundary signed by the qualified surveyor. In the absence of such information annexed to the application, there is no application in the eye of law. The 1st respondent failed to appreciate that the impugned proceedings are contrary to the earlier decision taken by the Government in the Circular Memo dated 16-1-2009. The 1st respondent failed to give valid and cogent reasons in the impugned proceedings. The 1st respondent failed to address itself whether the application made by the 5th respondent is invalid application and as such the writ petitioner is entitled to preference over the 5th respondent as contemplated under Rule 12 of the Rules. The 1st respondent also failed to appreciate whether the order passed under Revision is in conformity with Rule 12 of the Rules. It is also further stated that the application made by the petitioner is perfect and valid in terms of Rule 12 of the Rules. Further, No Objection Certificate had been issued by the concerned Tahsildar and also further clearances had been given by the respondents 2 to 4. As such the petitioner is entitled to grant of mining lease but unfortunately in view of the order made by the 1st respondent in the Revision, the agreement for granting mining lease in favour of the petitioner had not been entered so far. It is further stated that unless this Court intervenes and sets aside the order of the 1st respondent, the petitioner would be put to irreparable loss and hardship. In such circumstances, the writ petitioner approached this Court and obtained interim order as already aforesaid. 9. In the counter affidavit filed by the 5th respondent, the averments made in the affidavit filed in support of the Writ Petition had been denied and specific stand had been taken that he had filed an application on 4-5-2007 before the 4th respondent for grant of quarry of colour granite in the land admeasuring 4.00 hectares situated in Sy.No.514 of Ilapavuluru village, Chimakurthy Mandal, Prakasam District and pursuant to my application the 4th respondent directed the 5th respondent to attend before him for survey and inspection on 4-5- 2007 and 8-8-2007, but unfortunately the 5th respondent suffered acute jaundice and high fever and was advised by the Doctors to take bed rest and as such the 5th respondent addressed a letter to the 4th respondent on 8-8-2007 requesting him to postpone the survey and inspection. But the 2nd respondent without considering the genuine request made by the 5th respondent rejected the application on 12-9- 2008. 10. In reply to para-4 of the affidavit filed in support of the Writ Petition it is stated that the petitioner itself admitted that the 5th respondent made an application prior to his application and further contended that the 5th respondent made application to the 4th respondent without following the procedure. If at all the 5th respondent had not followed the procedure, the 4th respondent might have rejected the application of the 5th respondent then and there itself, but the 5th respondent was invited for attending the survey and inspection. However, assailing the rejection order dated 12-9-2008, the 5th respondent carried the matter to the 1st respondent by way of filing a Revision reiterating the facts and circumstances and by urging relevant grounds for consideration and to set aside the orders passed by the 2nd respondent. Strangely, the petitioner got himself impleaded in the Revision filed by the 5th respondent raising similar and identical facts raised in the present Writ Petition. It is also further stated that the 1st respondent after careful consideration of the circumstances and after hearing both sides was pleased to pass the impugned order dated 22-5-2009 allowing the Revision filed by the 5th respondent exercising the powers conferred under Section 35-A of the Rules by setting aside the orders passed by the 2nd respondent dated 12-9- 2008 by granting one more chance to the 5th respondent for attending the survey and inspection which shall be completed within a period of three months. 11. It is also further stated that there is no illegality or infirmity in the impugned order passed by the 1st respondent. The writ petitioner, with a mala fide intention to cause hurdles in the survey and inspection rushed to this Court by filing the present Writ Petition with all false and baseless contentions and sought a direction to the respondents-authorities to grant licence to him when the survey and inspection was not conducted. It is further stated that as per Rule 12 of the Rules whenever more than one application is made for grant of quarry lease, the same has to be considered in the order of preference by taking into consideration the date of application for granting such licence in respect of such area. In the instant case the application of the 5th respondent, by virtue of the impugned order passed by the 1st respondent, is under process and survey and inspection has to be conducted and unless and until the application of the 5th respondent is under process, the application of the petitioner which is made subsequent to the application of the 5th respondent cannot be taken into consideration but the petitioner only to stall the proceeding of survey and inspection approached this Court invoking the jurisdiction under Article 226 of the Constitution of India. The Writ Petition is premature and hence the petitioner is not entitled for any relief and the Writ Petition is liable to be dismissed. 12. The show cause notice No.19739/R3-2/2007 dated 14- 7-2008 reads as hereunder:- Government of Andhra Pradesh Department of Mines and Geology, Hyderabad Show cause notice No.19739/R3-2/2007 Dated: 14-7- 2009 Sub: Mines and Quarries – Quarry Lease for Colour Granite over an extent of 4.000 Hectares in Sy.No.514 of Ilapavuluru village, Chimakurthy Mandal, Prakasam District – Application of Sri B.Ashwani Kumar – Show cause notice issued – Reg. Ref: 1. Quarry Lease application dated 4-5-2007 from Sri B.Ashwani Kumar 2. ADM&G, Markapur, File No.3969/Q/2007 dated 1-4- 2008 3. Letter No.477/Q/ONG/2008 dated 1-4-2008, Director of Mines and Geology, Ongole. *** Sri B.Ashwani Kumar has filed an application for grant of quarry lease for Colour Granite over an extent of 4.000 Hectares in Sy.No.514 of Ilapavuluru village, Chimakurthy Mandal, Prakasam District vide reference 1st cited. This application was received by the Assistant Director of Mines and Geology, Ongole on 4-5-2007. Through the reference 2nd cited, the Assistant Director of Mines and Geology, Ongole has submitted rejection proposals on the quarry lease application through the Zonal Joint Director of Mines and Geology, Ongole on the following grounds:- 1. The signature of the licensed surveyor is not obtained on the applied sketch as required under rules. 2. The applicant has failed to attend the survey and inspection was after giving two chances by the Assistant Director of Mines and Geology, Ongole. In the circumstances, Sri B.Ashwani Kumar is hereby directed to show cause within fifteen (15) days from the date of receipt of this notice as to why the application in question should not be rejected in view of the above reasons under Rule 12(5)(d) of A.P. Minor Mineral Concession Rules 1966. Sd/- V.D.Raja Gopal, Director of Mines and Geology 13. Reliance also was placed on Victorian Granits (P) Ltd. Vs. P. Rama Rao [1]. 14. It is no doubt true that certain reasons in elaboration had been referred to in the counter affidavit filed by the 5th respondent. When the 1st respondent while exercising the statutory power under Rule 35-A of the Rules specified above, is expected to decide the matter in accordance with Law, this Court is not inclined to express any opinion whether in the facts and circumstances of the case, the Revision should have been allowed or not, but suffice to state that the 1st respondent as a statutory authority while exercising powers under Rule 35-A of the Rules had not made a speaking order. Whether in the exceptional circumstances, the bar imposed relating to the giving of one more chance beyond two chances as specified by the Circular Memo and if so under what circumstances, these aspects also may have to be considered. Further, certain submissions had been made that it would be a futile exercise even if the Revision to be allowed by the 1st respondent in the light of the fact that there was no valid application filed by the 5th respondent in the eye of law, may have to be also incidentally considered while deciding the Revision. Hence, without touching the merits and demerits, the impugned order is set- aside and the matter is remitted to the 1st respondent to give opportunity to both the parties to advance their submissions and decide the matter afresh in accordance with law. 15. Accordingly, the Writ Petition is allowed to the extent indicated above. No costs. _________________ Justice P.S.Narayana Date : 7-9-2009 AM [1] 1996(10) S.C.C. 665