THE HON’BLE SRI JUSTICE B PRAKASH RAO AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR REVIEW WPMP NO. 29584 OF 2008 IN WP NO. 24968 OF 2007, REVIEW WPMP NO. 38026 OF 2008 IN WP NO. 20625 OF 2007, REVIEW WPMP NO. 788 OF 2009 IN W P NO 20625 OF 2007, CONTEMPT CASE NO. 1518 OF 2008, CONTEMPT CASE NO. 386 OF 2009, WRIT PETITION No. 23286 of 2008, WRIT PETITION No. 24825 of 2008, AND WRIT PETITION No. 24826 of 2008 COMMON JUDGMENT : (Per Justice B Prakash Rao) The Review W.P.M.P. No. 788 of 2009 in W P No. 20625 of 2007 is filed at the instance of first petitioner, out of the three petitioners in W P No. 20625 of 2007, whereas, the State/respondent filed a Review WPMP No. 38026 OF 2008 IN WP NO. 20625 OF 2007. The review petitioner/writ petitioner seeks review of the orders passed by this Court in W P No. 20625 of 2007 dated 17.7.2008, which has been disposed of along with a batch of writ petitions. He also filed a contempt case in C C No. 1518 of 2008 complaining about non compliance of the orders of this Court passed in W P No. 20625 of 2007 dated 14.7.2008. Further, Review W.P.M.P. No. 29584 of 2008 in W P No. 24968 of 2007 is filed seeking to review of the orders passed by this Court in W P No. 29584 of 2008 dated14.7.2008 passed along with the aforesaid batch of cases. In C C No. 386 of 2009, the petitioner in W.P.No. 24826 of 2008 complains about the non compliance of the orders passed by this Court in W.P.M.P.No. 32413 of 2008 in W P No. 24826 of 2008 dated 27.2.2009 directing the respondents to issue way bills to the petitioner subject to condition that petitioner gives an undertaking on or before 2nd March, 2009 to the effect that in the event of his liability being fixed in these proceedings, he shall make the necessary payments. It is stated that in spite of compliance of the above conditional orders, way bills were not issued to the petitioner, who is highest bidder and successful participant in auction. In W.P. No. 23286 of 2008, the petitioner seeks for a writ of mandamus for a direction to declare the action of the respondents in asking him to deposit additional seigniorage fee for transportation and for refusal to issue way bills to the petitioner for transportation of sand in Damerakunta sand reach, Kataram mandal, Karimnagar district during the subsistence lease period, as illegal and contrary to G.O.Ms.No. 24, Industries and Commerce Department dated 12.2.2007. IN W P No. 24826 of 2008 the petitioner is once again a successful bidder in whose favour lease has been confirmed, seeks the relief of writ of mandamus declaring the Rule 9 –X(c ) of the A.P. Minor Mineral Concession Rules, 1966 (in short referred to as ‘the Rules, 1966) published in A.P.Gazette dated 12.4.2007 vide G.O.ms.No.84 Industries and Commerce (MI) Department dated 10.4.2007 in so far as it confers powers on the District Level Committee to fix the sale price of the sand and makes the bidder liable to pay seigniorage fee additionally and obtain way bills for the quantity exceeding the proportionate bid amount as illegal and void. In W P No. 24825 of 2008, the petitioner who is again successful bidder holding the lease and conferred in respect of Chenchupalli Sand Reach, Mangampet mandal, Warangal seeks similar such relief of writ of mandamus assailing the validity of Rule 9 –X(c ) of the Rules, 1966. Since all these matters involve virtually common questions, having an effect on the operation of sand mineral, at the request of respective counsel on both sides, the matters are taken up together for disposal. Coming back to the brief facts which are necessary for disposal of the matters which do not call for a reiteration of the detailed facts and circumstances and it would suffice to state that initially a batch of writ petition in W P No. 20625 and batch were filed and petitioners therein who are lease holders in respect of minor mineral of sand lease granted duly by the competent authorities filed writ petitions under Article 226 of the Constitution of India, seeking for mandamus assailing the correctness, validity and propriety of Rule 9-B(6)(iv), 9-T, 9-X( c) of the Rules, 1966 and notification No. 988/Sand/2007 dated 19.9.2007 on the file of second respondent and the Rules,1966 published vide G.O.Ms. No. 84 dated 10.4.2007 insofar as it confers powers on the District Level Committee to fix the sale price of the sand and compelling the bidders for payment of seigniorage fee additionally and to obtain permits for the quantity exceeding the proportionate bid amount, as illegal and void. This Court, after hearing the learned counsel appearing for the petitioners and also the learned Government Pleader, appearing for respondents/State and especially taking into consideration the principles laid down by the Apex Court in State of Tamil Nadu Vs. M.P.P. Kavery Chetty[1] , allowed the writ petitions declaring Rules 9-B(6) (iv), 9-T and 9-X (c ) of the Rules, 1966 conferring such power on the authorities to fix the sale price of the sand, was struck down. The sole basis on which this Court proceed to hold that the said rules are invalid was to the effect that very same principle as laid down in State of Tamilnadu case (referred supra) where in a similar such circumstances, the price fixation was said to be done under the Rules was struck down. It was found that the rules which have been struck down in the said decision were virtually in parimateria with the rules in question. Therefore, this Court having found that no such authority is permissible struck down the said rules. The main contention urged on behalf of the learned Government Pleader in the Review Petitions is to the effect that so far as Rule 9-X( c) is concerned, there is absolutely no warrant to struck down on the self same lines as on par with Rule 9-B(6) (iv) and 9-X and it stands on different footing and there is no basis to come to such a conclusion, therefore there is an error on the face of record. Similar is the contention on the ground that this Court while striking down the said Rules sought to proceed on the ground that the power is conferred on the authority to fix sale price, whereas Rule 9-X © does not deal with fixation of price but only direct that the bidder pay the seigniorage fee additionally and proportionate bid amount and therefore the judgment to the extent of striking down requires to be varied with and to be set aside. These submissions were sought to be repelled on behalf of the respondents herein who are writ petitioners and similar is contention which runs on the self same lines as in the earlier batch attacking the validity of the aforesaid rules in connected writ petitions in W.P. No.24825, 24826 and 23286 of 2008, hence the contention is to the effect that on the very same principle as laid down in State of Tamilnadu case (referred supra), these rules including Rule 9-X (c ) also requires to be set aside, as it does not allow authorities to impose any such liability as a consequence to price fixation in the earlier set of rules. In view of the same and especially having regard to the fact that there is no serious dispute or any challenge as against the findings arrived at by this Court holding that Rules 9-B(6) (iv) , 9-T and 9-X (c ) are invalid and having been struck down, the gamut now restrict only in regard to the findings as to the validity of Rule 9-X ( c )of the Rules, 1966. At the outset, it needs to be stated that even though the Review Applications have narrowed down to the aforesaid aspect, however, in view of the other three writ petitions i.e., W.P. Nos. 23286, 24825 and 24826 of 2008 which are also been heard along with these two review applications, where comprehensive attack is made as against the aforesaid three rules including Rule 9-X( c) of the Rules, 1966, necessarily the scope of the enquiry and consideration in these matters gets widen and not restricted in limited exercise of power either in review or otherwise. Accordingly, we deem it more appropriate to go into consideration of the validity of Rule 9-X (c ) of the Rules, 1966. For the sake of convenience, Rule 9-B of the Rules, 1966 published vide G.O.Ms.No.84 dated 10.4.2007 reads as follows; …. (C) The way bill for transporting sand shall be in the form “Form S-5”. The way bills be issued proportionate to the knocked down bid amount by calculating Seigniorage Fee as specified in the Schedule-I of Rule 10 of A.P. Minor Mineral Concession Rules, 1966. The bidder is liable to pay seigniorage fee additionally and obtain permits for the quantities exceeding the proportionate bid amount.” On a reading of the aforesaid rules and a conspectus of the very scheme for the purpose of which it has been emanated, it amply shows that it is a self contained one, specifically in regard to the minor mineral sand, where the process for fixing the minimum bid for auction of sand quarries is contemplated departing from payment of seigniorage fee on the mineral extracted and transported as per rule 10 of Schedule I. In fact, Rule 10, applies to other minerals and not to the auction in the case of sand, since there is no dead rent for sand auction, therefore aforesaid Rule 9-X ( c) is quite different and distinct from Rule 9-X and both cannot either go together or clubbed as such. Rule 9 (i) and (ii) specifically exclude ‘sand’ and under Rules, 9, 12, 13, 15, 34 and 35 (A), of the Rules, 1966 , the power to grant the quarry lease is conferred on the Deputy Director and Director for all the other minor minerals, whereas the minor mineral sand is concerned, the auctioning authority is only District Level Committee, therefore, a reading of the entire aforesaid Rules, it makes it clear that it has no application for the sand quarries which are subjected to auction. It is meant for mineral sand along with other minerals given on quarry lease, on a due application. It is not the case of the respondents that the minimum bid notified and the highest bid on auction is dead rent or minimum guaranteed amount, once the quarries are notified and auctioned taking into consideration previous three years highest bid, the prescription of issuance of way bill only to the extent of bidded amount, on the face of it, is arbitrary and unsustainable. When once the bid is knocked down it is for the bidder to extract the sand with in the area specified and there cannot be a limit either less or more sand. Further, in case of quantity falls below the proportionate bid amount, it is the bidder who under goes loss as there is no refund clause in the Rules. The State is very much assured of the revenue, once it proposes to dispose of the mineral sand only by way of public auction. It has framed separate rules for sand, departing from the other mode of granting quarry lease for all other minor minerals. Hence, it cannot draw a line for issuance of way bills in terms of Rule-10 as far as sand mineral or its lease is concerned. The bid amount notified or offered by the bidder is not proportionate to the quantity of sand available or transportable from the reach. Therefore, necessarily it follows that the State Government has absolutely no power or any jurisdiction to levy or collect any additional amount as seigniorage fee calculating it by applying Rule 10 of Schedule I. For the foregoing and for the self same reasons, already given in W.P.No.20625 of 2008 and batch dated 14.7.2008, the principle which squarely can be applied from the decision in State of Tamilnadu case (referred supra) , Rule 10 of Schedule I, has absolutely no application to the sand quarries notified for public auction under Rule 9 (6) of the Rules, 1966, therefore, the state Government has no power to levy or collect additional seigniorage fee. Hence, we hold that Rule 9-X( c) of the Rules is absolutely unconstitutional and needs to be struck down, accordingly we strike down the same. We make it clear that if any seigniorage fee is already collected in addition to the auction amount, the same shall be refunded to the parties, immediately. In the result, Review WPMP No. 38026 of 2008 in WP No. 20625 of 2007 is dismissed and Review WPMP Nos. 29584 of 2008 in W P No. 24968 of 2007 and Review WPMP No. 788 of 2009 in W P No. 20625 are allowed. Having regard to the above orders passed on merits, disposing of the cases, the Contempt Cases filed in CC.1518 of 2008 and 386 of 2009 are dismissed with a liberty to the petitioners/applicants to move afresh in the event of violation of orders of this Court, if any. Further, W.P. Nos. 23286, 24825 and 24826 of 2008 are allowed holding that Rules 9-B (6) (iv), 9-T and 9-X ( c) of A.P. Minor Mineral Concession Rules, 1966 conferring powers on the authorities to fix the sale price are declared unconstitutional and struck down. No costs. ________________ B.PRAKASH RAO,J ______________________ VILAS V. AFZULPURKAR,J DATE:22-04-2010 tvk THE HON’BLE SRI JUSTICE B PRAKASH RAO AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR REVIEW WPMP NO. 29584 OF 2008 IN WP NO. 24968 OF 2007, REVIEW WPMP NO. 38026 OF 2008 IN WP NO. 20625 OF 2007, REVIEW WPMP NO. 788 OF 2009 IN W P NO 20625 OF 2007, CONTEMPT CASE NO. 1518 OF 2008, CONTEMPT CASE NO. 386 OF 2009, WRIT PETITION No. 23286 of 2008, WRIT PETITION No. 24825 of 2008, AND WRIT PETITION No. 24826 of 2008 Date: 22.4.2010 [1] AIR 1995 SC 858