*THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO +WRIT PETITION NO.26721 OF 2011 % 10-10-2011 Between: M/s Venkateswara Granites rep by its Proprietor R. Venkateswara Rao S/o Koteswara Rao R/o H.No.23-6-231 Hunter Road, Hanamkonda, Warangal ..... PETITIONER AND 1. The Government of Andhra Pradesh, Rep. by its Secretary, Ind & Com (Mines.II) (1), Secretariat Building, Hyderabad. 2. M/s Karunamayi Granites rep by its Proprietor Sri G. Devilal S/o Desya, aged about 32 years, R/o Errabelligudem Village, Nellikiduru Mandal, Warangal District. 3. Sri G. Devilal, S/o Desya, R/o Errabelligudem Village, Nellikiduru Mandal, Warangal District. .....RESPONDENTS For the Petitioner : Sri V.L. Surendra For the Respondents : G.P. for Mines for R1 to R3 < Gist: > Head Note: ? CITATIONS: 1) AIR 2005 SC pg 1782 2) 2000-ALT-1-199 3) (1987) 4 SCC 525 4) AIR 1970 SC 1273 THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.P.No.26721 OF 2011 ORDER: This writ petition has been instituted by M/s. Venkateswara Granites, Hanumakonda, Warangal District, calling in question the validity of the orders passed by the 1st respondent State Government in their memo dated 12-09-2011, granting stay of operation of the orders passed by it earlier in memo dated 24-11- 2008, until further orders. 2. The case of the petitioner firm is that a quarry lease for the Black Granite Mineral over an extent of 0.496 hectares of land in Survey No.225/120 of Erraballigudem Village, Nellikuduru Mandal, Warangal District, was originally granted in favour of M/s. Blaze Granites (P) Limited, on 12-10-1989, initially for a period of 5 years, which was, subsequently, renewed on 08-09-1995, for a further period of 15 years. Another quarry lease for Black Granite Mineral over an extent of 1.25 acres of land in Survey No.264/1 and Survey No.225/120 of Erraballigudem Village, Nellikuduru Mandal, Warangal District, was granted in favour of M/s. Blaze Granites (P) Limited for a period of 15 years on 15-06-1998. It is not in dispute that land situate in Survey No.264/1 is a private patta land, while land in Survey No.225/120 is government land. M/s. Blaze Granites (P) Limited has transferred the two quarry leases held by them in favour of the petitioner firm herein after obtaining prior approval of the Director of Mines & Geology, on 04-01-2005. Thereafter, the petitioner sought for a renewal of the lease, which was extended for a further period of 20 years and accordingly, the necessary agreement has been entered into by and between the petitioner firm herein and the Assistant Director, Mines & Geology, Warangal District, on 12-05-2010. Thus, the lease over land of an extent of 0.496 hectares in Survey No.225/120 is now extended up to January, 2030. So far as the second lease is concerned, it is valid, as of now, up to June 2013. 3. The 2nd respondent firm applied for grant of quarry lease in respect of two hectares of land in Survey No.225/1 on 26-02-2007. However, the survey number was corrected as Survey No.225/120 on 27-04-2007. The petitioner herein also submitted three separate Applications for quarrying Black Granite Mineral on 02-03-2007, 28-04-2007 and 25-04-2007 over one hectare of land each in Survey Nos. 225/120 and 264/1, 225/120 and 225/121 to 225/126 respectively. When the Application of the 2nd respondent filed on 26-02-2007 was not processed, it had filed W.P.No.27931 of 2007. That writ petition was disposed of on 01-04-2008 directing a joint inspection and survey to be conducted. The 2nd respondent also filed another W.P.No.23117 of 2008 seeking directions for disposing of its application. That writ petition was disposed of on 23-10-2008 giving directions to the respondents to dispose of the Application of the 2nd respondent. 4. At that stage, there is a grievance made by the villagers and the 2nd respondent alleging that the petitioner firm is carrying on quarrying operations over an area of land other than the area, which was granted to it, as per the sketch enclosed to the lease deed executed. That called for a joint inspection between the Revenue, Survey & Land Records and the Mines & Geology Departments. A report was drawn on 11-07-2008. Based on that survey findings, the Assistant Director, Mines & Geology, Warangal, filed a report before the Director, Mines & Geology, Hyderabad, on 06-08-2008. After examining this report, it appears that, the Director, Mines & Geology, Hyderabad, passed note orders in his file No.7044/R6-1/2008, dated 06-09-2008, directing the Zonal Joint Director, Mines & Geology, Hyderabad, for carrying out inspection of the disputed site and submission of a report. Accordingly, the Zonal Joint Director inspected the quarry site on 15-09-2008 and filed his report on 16-09-2011. This report of the Zonal Joint Director, filed with the Director, Mines & Geology, Hyderabad, has been placed at Page No.36 of the paper book filed in this writ petition. It will be appropriate to notice some of the crucial findings in this report, which are to the following effect: “…………………… I have inspected the area falling as per drawn sketch, and observed that the area is falling in agricultural patta lands of local scheduled tribes, which is devoid of the black granite. Hence, it was mistake facts which needs to be rectified. …………………….. (M/s. Blaze Granites (P) Limited) they have worked the Quarry Lease area and dispatched 303 M3 upto 2004 and paid Rs.4.22 Lakhs of Royalty to the Government. Subsequently in 2005 the two Quarry Leases were transferred in favour of M/s. Venkateswara Granites, who have been working continuously and dispatched 1193 M3 upto March 2007 and paid Rs.36.72 Lakhs Royalty to the Government. Thus, from the Quarry Leases 1496 M3 of Granite Black have been dispatched and paid Rs.40.94 lakhs of Royalty to the Government. Hence, the present lessee M/s. Venkateswara Granites is working the deposit by finding market for the deposit and paying royalty to the Government. The Asst. Director of Mines and Geology, Warangal has also reported that as per executed sketch, the geographical orientation of the area is in NW-SE direction consisting of the country rock and devoid of granite deposit. The land is fit for paddy crop whereas the working pit consists of granite deposit in NE-SW direction cutting across the Sy.No.264/1, 225/120. The lessee has so far worked over an extent of 0.23 Hectares only in Sy.No.225/120 within the granted area. However, there was a mistake cropped up at the time of processing of the application wrongly demarcating of the area on the sketch over 180 meters away from the mineral deposit in plain paddy lands, which was executed subsequently. Under the circumstances, I recommend to issue an errata to rectify the execution sketch as per the filed orientation of the granite deposit, which was granted transferred and executed by M/s. Venkateswara granites in Sy.No.225/120 & 264/1 of Errabelligudem (V) Nellikuduru (M) Warangal Dist for the following Justification. 1) There is only one single granite deposit (dolerite dyke) existing in the area trending NE- SW by cutting across Sy.No.264/1 & 225/120. 2) As per ADM&G, Warangal executed sketch the area consists of country rock and devoid of black granite deposit and the land is useful for cultivation purpose. 3) Two quarry leases were granted in the area in 1989 & 1998 covering 0.50 Hectares in each quarry lease in Sy.Nos. 264/1 & 225/120 initially to M/s. Blaze Granites and subsequently transferred to M/s.Venkateswara Granites in 2004, who have been working continuously and paying Royalty to the State Government. 4) As per geographical orientation the (Black Granite) Dolerite dike trending NE-SW but not SW-SE as per executed sketch. 5) The entrepreneur is interested in quarrying granite deposit and hence, mineral deposit is the selection criteria rather than Sy.Nos., which are used for identity markings. 6) This type of similar problem was earlier resolved by taking the working area as lease area as there is only single pegmatite quartz vein occurring on the eastern part of Sy.No.186 of Bachupally (V) Qubullapur (M) Ranga Reddy Dist. Though the executed sketch wrongly shown on western side of the Sy.No.186.” 5. After the Assistant Director submitted his report, it appears that, the petitioner firm has preferred a Revision Application in terms of Rule 35-A of the Andhra Pradesh Minor Mineral Concession Rules, 1966 (henceforth referred to as ‘the Rules’), seeking rectification of the sketch annexed to the quarry lease granted to the petitioner. Considering the said Revision Application, the State Government passed orders in their memo No.14258/M.II(1)/2008-2, dated 24-11-2008, allowing the said application and granting permission to make necessary changes in the sketch appended to the lease deed as per the demarcation made on the ground, as per the field orientation of the granite mineral deposit. In the course of this order, the objections raised by M/s. Karunamai Granites, 2nd respondent herein, have also been noticed in Paragraph No.5 of the said order. Pursuant to these orders of the State Government, the Director, Mines & Geology, authorized the Assistant Director, Mines & Geology, to execute a modified sketch through his orders dated 09-01-2009 and accordingly, modified sketch has been executed by the Assistant Director, in favour of the petitioner firm on 17-01-2009. 6. Calling in question the orders dated 24.11.2008, the 2nd respondent herein instituted W.P.No.9764 of 2009. The petitioner herein was the 4th respondent to the said writ petition. They contested the case. My learned brother Justice C.V. Nagarjuna Reddy, had decided the said writ petition on 25-04-2011. In the course of the said Judgment, it is observed as under: “Interestingly, while respondent No.4, who is the transferee from the original grantee, has been working in an area which admittedly is different from the one, which is covered by the sketch appended to the lease deed, on coming to know that the petitioner made an application for grant of mining lease, he has also submitted its applications. This clearly shows that respondent No.4 is conscious of the fact that there is a material variation with regard to the area, which is covered by the sketch and the actual working area. If respondent No.4 wanted rectification of the sketch, it should have first approached respondent No.2, who is admittedly the authority competent and who has actually granted the lease in favour of the original grantee. Equally, respondent No.2 is competent to dispose of the fresh applications filed by the petitioner and respondent No.4 for grant of fresh mining leases. Therefore, it passes one’s comprehension as to how respondent No.4 could approach respondent No.1 with a purported revision petition. The stage for invoking the revisional jurisdiction of respondent No.1 is not reached till an appropriate order is passed by respondent No.2, if respondent No.4 has approached him for rectification of the sketch. Till then there would be no occasion for respondent No.1 to intervene in the matter at the instance of respondent No.4 and pass the impugned order. I am therefore of the opinion that the very revision petition filed by respondent No.4 is wholly misconceived and accordingly I hold that the revision before respondent No.1 is not maintainable.” 7. Then, the learned Judge proceeded further to observe as under: “As regards the submission of the learned Senior counsel that the petitioner’s affidavit is later in point of time than the applications of respondent No.4, a prima facie perusal of the report of respondent No.3 would show that respondent No.4 has submitted applications on 02.03.2007, 28.04.2007 and 24.05.2007 for one hectare each while according to the petitioner, he has filed his affidavit correcting the survey number on 27.04.2007. It thus appears that the affidavit correcting the survey number was filed after the first of the three applications filed by respondent No.4 and before the other two applications were filed by it. At any rate, this issue is not germane for adjudication in the present Writ Petition more so when the petitioner’s application is stated to have been rejected by respondent No.2 vide his order dated 05.06.2009. If the petitioner felt aggrieved by the said order, he has to avail the appropriate statutory remedy under the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 and the Rules made thereunder before the competent authority. If and when such proceedings are initiated, this issue would be relevant for consideration and the parties are left free to raise appropriate pleas on this aspect in such proceedings. Ordinarily, in the light of the findings rendered above, the impugned order of respondent No.1 ought to be set aside. However, a peculiar situation has arisen in this case as respondent No.2 is stated to have rejected the petitioner’s quarry lease application vide proceedings No.12068/R6-1/2009, dated 05.06.2009. The learned counsel for the petitioner stated that so far his client has not received a copy of the order, but the fact that the petitioner’s application was rejected was stated in paragraph 3(d) of the counter affidavit filed by respondent No.4. The said counter affidavit was filed as far back as July 2009. Respondent No.4 has also filed a copy of the said rejection order along with the counter affidavit. The petitioner has neither filed a reply affidavit controverting the said averment nor taken any steps for questioning the order passed by respondent No.2 rejecting his application. Therefore, as rightly submitted by the learned Senior counsel and the learned Government Pleader, as of now, the petitioner’s interest over the area for which it has applied for mining lease cannot be said to subsist, unless and until it has availed the appropriate legal remedy for setting aside the order of respondent No.2.” 8. Having thus observed, the learned Judge held as under: “However, as the rectification of the sketch was not done after notice to the petitioner, even though its application at that time was pending before respondent No.2, the interest of the petitioner needs to be protected. In my opinion, the only way by which such protection can be made is to permit the petitioner to pursue its further remedy against the order of respondent No.2 without being affected by the impugned order. It has been submitted by the learned counsel for the petitioner, at the hearing, that the petitioner can file an appeal before respondent No.1 against the order of respondent No.2 rejecting its application. If such an appeal is filed, respondent No.1 shall consider the same on its own merits according to law without being influenced by the impugned order and treating that the area applied for by the petitioner is available for grant. Along with such appeal, respondent No.1 shall reopen and reconsider the entire issue pertaining to the claim of respondent No.4 for rectification of the sketch appended to the lease of the original grantee afresh, after giving the petitioner and respondent No.4 an opportunity of being heard, ignoring the impugned order by which the sketch appended to the original lease was rectified. Subject to the above directions, the Writ Petition is disposed of.” 9. As was noticed, the petitioner firm herein and the 2nd respondent firm were both parties to that writ petition. So is the State Government, represented by its Secretary, Department of Industries & Commerce. What emerges therefrom is that the order passed by the State Government on 24-11-2008 is ordered to be reopened and the State Government was required to reconsider the issue relating to the claim of the present petitioner herein for rectification of the sketch appended to the lease deed. At the same time, the 2nd respondent’s application for grant of quarry lease, which has been rejected on 05-06-2009, was required to be challenged before the Appellate Authority. 10. Sri C.V. Mohan Reddy, the learned senior counsel appearing for Sri V.L.Surendra, learned counsel for the petitioner would contend that the present impugned order passed by the State Government on 12-09-2011 is bad, essentially, for the following reasons:- 1. the Appeal / Revision, if any, preferred by the 2nd respondent herein against the orders dated 05-06- 2009 is hopelessly barred by limitation and there is no power available in the hands of the Government to condone such a long delay, either. 2. the said order has been passed by the State Government in utter violation of the principles of natural justice, inasmuch as, no opportunity of effective hearing has been accorded to the petitioner firm. 3. the balance of convenience has not been assessed at all as to whether the orders passed on 24-1-2008 deserve to be suspended or kept in abeyance, nearly three years later on. 4. on behalf of the 2nd respondent herein, its proprietor has filed an affidavit withdrawing his Appeal by the time the impugned order is passed and hence, in law, there is no Appeal pending before the Government, for it, to have an opportunity to pass the impugned order. 5. further, the proprietor of the 2nd respondent herein has executed a Notarized affidavit on 20-09-2011 vouching to the fact that he has not entered into any partnership deed, nor did he authorize anyone to contest or institute any legal proceedings on behalf of the 2nd respondent firm of which he is the sole proprietor. Therefore, the impugned order lacks legal sanctity and authority when there is no parallel claim for the land concerning the leased out area in favour of the petitioner firm. 11. It may be true that in normal circumstances, the State Government would have hesitated to entertain an Appeal or a Revision at the hands of the 2nd respondent herein after a long lapse of time, but however, it is well to remember that the 2nd respondent had instituted W.P.No.9764 of 2009 in this Court challenging the validity of the proceedings dated 24-11-2008. During the pendency of these proceedings, the Director, Mines & Geology, Hyderabad, appears to have rejected the application of the 2nd respondent on 05-06-2009. Therefore, having found that the Revision preferred by the petitioner herein with the State Government, entertaining which revision, the orders were passed by the State Government on 24-11-2008, as not maintainable, but, nonetheless, this Court has refrained from setting aside the said proceedings, in view of the subsequent development in the form of rejection of the 2nd respondent’s application on 05-06-2009. This Court did not stop there. It went on to direct the 1st respondent State Government in the following words: “Along with such appeal, respondent No.1 shall reopen and reconsider the entire issue pertaining to the claim of respondent No.4 for rectification of the sketch appended to the lease of the original grantee afresh, after giving the petitioner and respondent No.4 an opportunity of being heard, ignoring the impugned order by which the sketch appended to the original lease was rectified.” (emphasis is generated) The writ petitioner herein, who is the 4th respondent there, the State Government and the 2nd respondent herein, who is the writ petitioner there, are all bound by this direction. The judgment rendered by this Court on 25-04-2011 in W.P.No.9764 of 2009 appears to have attained finality. In the face of the directions, noted supra, issued by this Court, it will be futile to contend that the State Government has no power to entertain any Appeal / Revision preferred by the 2nd respondent. When the court directed the 1st respondent State Government to reopen and reconsider the issue relating to the modified sketch attached to the lease deed of the petitioner herein, there is no alternative to the 1st respondent State Government except to comply with the same. Therefore, I am not able to find any merit in the contentions canvassed by the learned senior counsel. 12. The fact remains that the writ petitioner has quarried Black Granite Mineral after the lease was transferred in its favour from 2005 onwards and earlier thereto, by M/s. Blaze Granites (P) Limited from 1989 / 1998, as the case may be, quarried the mineral pursuant to the original lease granted on two different occasions in its favour. Thus, the petitioner and its predecessor in interest have quarried the mineral in an area, which has fallen outside the originally leased out premises. The Zonal Joint Director, Mines & Geology, with the help of the available records, had found that a total quantity of 1496 cubic meters of granite has been quarried up to the end of March, 2007. How much more of the mineral was quarried from the said site till 24-11-2008, is yet to be assessed. The State Government is bound to make a proper assessment as to how to deal with this unauthorized quarrying resorted to, by the petitioner firm and its predecessor in interest, may be unintentionally. Whether such an unauthorized act, however unintentional it might be, should be condoned by levying appropriate penalty or it should result in canceling the lease deeds, is a question, which has got to be considered by the State Government, now. For considering this issue, no separate Application, in the form of an Appeal or a Revision, at the hands of a third-party, much less, the 2nd respondent herein, is needed. The Zonal Joint Director, Mines & Geology found that mineral has been extracted / quarried from an area, which fell outside the leased premises. That was also the finding of fact recorded by this Court in W.P.No.9764 of 2009 in its Judgment dated 25-04-2011. That finding of fact has been accepted by the petitioner firm and it has not been challenged. Therefore, how to regulate this unauthorized quarrying that went for long, is the concern of the State Government. 13. It will be appropriate to notice that Rule 12(5) of the A.P. Minor Mineral Concession Rules regulates the exercise of granting of quarry leases for granite useful for cutting and polishing. Rule 12(5)(a)(i) of the Rules requires the Director to grant a quarry lease for granite, on an Application made to the Assistant Director concerned and such 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 by a qualified surveyor. Therefore, now, there is need for the Government to examine the original Applications submitted by M/s. Blaze Granites (P) Limited seeking quarry lease for Black Granite Mineral and as to whether the sketch drawn to a scale was enclosed thereto with boundaries of the applied area noted thereon or not. It is also required of the State Government to examine whether there was any error committed by the Department while drawing or preparing the sketch. Without these aspects being investigated and finalized, the petitioner cannot, legitimately, be allowed to quarry the mineral from a site, where from he was exploiting all through, particularly, after it was found to be far away from the leased out area. Any such action would amount to condoning an illegality. Hence, the balance of convenience does not lie in favour of the petitioner firm to be allowed to quarry the mineral from a site, which was not originally leased out to it. 14. Further, Rule-35-A of the Rules, clearly grants power onto the State Government to suo motto, at any time, to call for and examine the record relating to any order passed or proceeding issued by the Director / Joint Director / Deputy Director or Assistant Director of Mines & Geology, under the Rules for the purpose of satisfying themselves as to the legality or propriety of such an order. Therefore, not only by virtue of the directions issued by this Court in W.P.No.9764 of 2009, even otherwise, now, the State Government is bound to exercise the power available to it under Rule 35-A of the Rules and examine the entire matter. For exercising such a power there cannot be a tight time frame. Perhaps, the case on hand justifies such an action in the light of the findings recorded by the Joint Director. Further, the petitioner herein has set into motion the corrective action desiring rectification of the sketch of the area leased out to them. Therefore, that is what is being examined by the State Government. If I were to straight away accept the submission made by the petitioner herein that no revision should be entertained by the Government after long lapse of time,