HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.33585 of 2011 and WRIT PETITION No.34127 of 2011 Date: December 28, 2011 WRIT PETITION No.33585 of 2011 Between: M/s. Venkateswara Granites, Rep. by its Proprietor R. Venkateswara Rao, Hanamkonda, Warangal. … Petitioner And 1. The Commissioner Appeal, O/o. Chief Commissioner of Land Administration in Govt. Of A.P., Hyderabad & 6 others. … Respondents * * * WRIT PETITION No.34127 of 2011: Between: M/s. Venkateswara Granites, Rep. by its Proprietor R. Venkateswara Rao, Hanamkonda, Warangal. … Petitioner And 1. The Commissioner Appeal, O/o. Chief Commissioner of Land Administration in Govt. Of A.P., Hyderabad & 7 others. … Respondents * * * HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.33585 of 2011 and WRIT PETITION No.34127 of 2011 COMMON ORDER: Heard learned senior counsel appearing for the petitioner, learned Government Pleader for Revenue as well as Mines and Sri Hari Sreedhar, learned counsel appearing for respondent 6. 2. The writ petition W.P. No.33585 of 2011 in effect questions the order passed by the Commissioner, Appeals, dated 23.11.2011 which is interim in nature and while the said writ petition was being heard, it transpired that the Commissioner-first respondent has passed a final order in the appeal preferred by the petitioner and the same was separately questioned. The writ petition W.P. No.33585 of 2011 therefore virtually become infructuous. 3. The facts in brief only to the extent of necessary for the order proposed to be passed herein are as follows: Two mining leases, one to the extent of 0.496 hectares in Survey No.225/120 of Erraballigudem village, in favour of M/s. Blaze Granites (P) Ltd., granted on 12.10.1989, whereas the other lease of Ac.1.25 in Survey Nos.225/120 and 264/1 of the same village in Nellikuduru Mandal, was granted in 1998. Subsequently the petitioner has taken over the said leases and he also states that after the initial period the leases were renewed as well for the further period. 4. It was alleged that the petitioner has encroached beyond the sketch appended to the lease and then it was also noticed by the petitioner that the sketch appended to the lease does not correctly reflect the leased area and therefore the petitioner applied to the Government for rectification of the sketch/area which was ultimately granted by the Government on 24.11.2008 and revised lease deed with rectified sketch was executed in favour of the petitioner. There were other litigations thereafter at the instance of one M/s. Karunamai Granites who had applied for grant of mining lease in the same area which came up to this Court in W.P. No.9764 of 2009. That writ petition was disposed of by this Court by considering the contentions of all the parties by order dated 25.4.2011 wherein the Government was required to re- consider the decision with regard to rectification of the sketch and also consider the appeal of the Karunamai Granites. While this was the position on one hand, the petitioner was given a show cause notice dated 20th March 2010 by the Tahsildar, Nellikuduru Mandal, asking him to show cause as to why action should not be taken against him for having encroached on the Government land which includes encroachment beyond the sketch originally appended to the quarry lease. While those proceedings were contested by the petitioner, the Tahsildar, Nellikuduru Manndal, passed an order dated 11.5.2010 finding that the petitioner has encroached into other survey number 227 as is evident from the joint inspection report called for by the Tahsildar and that the petitioner has disturbed the bund of Regulakunta by nearly 100 metres in length by encroaching 50 feet depth. The Tahsildar, Nellikuduru Mandal therefore states in his order that separate steps are being taken on the allegations of the villagers on damage to the tank bund and encroachment of tank bed area in Survey No.227. He however proceeded to pass an order against the petitioner restraining him from conducting mining operations on the ground that No Objection Certificate from the revenue authorities was not secured by the petitioner before seeking rectification of sketch for his leased area from the Government. Questioning the orders of the Tahsildar, Nellikuduru, the petitioner preferred an appeal before the District Collector, Warangal, in proceedings No.C4/2752/2010. Pending that appeal, the Collector, has called for a joint survey report and by order dated 31.5.2010 the District Collector, Warangal, passed interim order which reads as hereunder: “The point for consideration is whether the vehicles seized by the Tahsildar, Nellikudur to be released or not and whether the quarry operation by the applicant may be permitted in patta land i.e., Sy.No.264/1. I have gone through the record and found that the appellant was permitted to quarry the Black Granite in sy.No.225/120 which is government land and also in Sy.No.264/1 which is patta land and that the NOC issued by the Tahsildar, Nellikudur was subsequently modified by the Government in orders in Memo No.14258/M.II (1) 2008-2, Dt: 24.11.2008 and further the lease is also renewed by the Director of Mines, Hyderabad vide Prodgs.No.1343/R6-1/2010, Dt: 07.05.2010. By considering all the documents, it is a fit case for the appellant to quarry the Black Granite in patta land i.e., in Sy.No.264/1. Further the Tahsildar is also fairly admitted that there is no objection for operation of quarry in patta land i.e., in sy.No.264/1 of Errabelligudem village of Nellikudur Mandal. Therefore it is ordered to release the seized vehicles and also directed the appellant to furnish the Bank Guarantee for Rs.10,00,000/- (Rupees Ten lakhs) as the seized vehicles are used for quarry in the disputed Government land. It is also ordered to operate the quarry in undisputed patta land i.e., in Sy.No.264/1 for which the lease is in force till the year 2013 and restrain from entering the Government land until final disposal of the case. Accordingly Tahsildar, Nellikudur (Respondent) is hereby directed to release the vehicles which were seized under the cover of Panchanama and remove the seals affixed after furnishing the Bank guarantee by the appellant and further ordered to permit the appellant to operate quarry activity to an extent of leased area of Sy.No.264/1 of Errabelligudem village of Nellikudur Mandal.” Thereafter the appeal was further heard and was dismissed by order dated 18.8.2011 inter alia confirming the order of the Tahsildar that in the absence of any No Objection Certificate for the proposed rectified area, the petitioner is not entitled to conduct mining operations and also on the ground that the petitioner had found encroached in Survey No.227 to the extent of Ac.0.28 guntas. The petitioner was therefore imposed a fine tentatively quantified to the extent of damage caused to the bund. Aggrieved thereby the petitioner preferred an appeal. Pending that appeal the learned Chief Commissioner of Land Administration passed an interim order dated 23.11.2011 which reads as hereunder: “In view of the above, the request of the counsel for revision petitioner for grant of stay is rejected, as he had indulged in an act through which severe damage has been caused to the existing tank (Regula Kunta) and has extracted granite, unauthorisedly, the value of which is getting quantified by the officials of Mines & Geology Dept., The revision petitioner is also directed to pay the damage amount of Rs.1,98,385/- immediately as directed by Collector. After the payment is made and the challan produced before this court that the case will be taken up and a decision whether to admit this case or not will be taken.” 5. Later when the appeal was coming up for hearing and was fixed on 16.12.2011, it appears that petitioner’s counsel reported unwell and sought adjournment. But the same was refused and the appeal was said to have been disposed of on that day. Petitioner’s counsel thereafter made an application for re-hearing of appeal on 17.12.2011, but the Commissioner of Appeals rejected the same by disbelieving the ground of illness pleaded by the petitioner’s counsel and declined to interfere. But at the same time by the said order dated 17.12.2011, the Commissioner accepted the contentions of the respondents that the orders of the Collector dated 18.8.2011 impugned in the appeal was in the nature of interim order and as such the appeal filed before the Commissioner of Appeals was held to be premature and the appeal was disposed of directing the petitioner to deposit amount of damage quantified i.e., Rs.1,98,385/- subject to any further orders to be passed by the Collector. The aforesaid order dated 17.12.2011 is questioned in this writ petition. 6. Several detailed contentions are advanced by the learned senior counsel in order to establish that rectification of sketch, which was approved by the Government on 24.11.2008, is binding on the respondents and that the petitioner has not encroached beyond the said rectified sketch. Learned senior counsel also pointed out that want of No Objection Certificate of the Tahsildar to the extent of area under rectified sketch does not in any way vitiate the grant of mining lease as admittedly the entire area is Government land and relies upon the circumstance that the very same Tahsilder has subsequently granted No Objection Certificate when the leases were renewed. Learned counsel also points out that as many as three different joint inspection reports support that petitioner has not encroached on Survey No.227, but erroneously a finding on that score is recorded against him. While these contentions are elaborated with reference to the documents including the fact that the re-hearing of the proceedings of the Government dated 24.11.2008 as directed by this Court in the writ petition referred to above was subsequently held and the objector M/s.Karunamai Granites had not only withdrawn the contest in the revision before the Government, but had also withdrawn their mining lease application itself and thereby the Government under its proceedings dated 09.11.2011 recorded and confirmed that the revised sketch granted to the petitioner dated 24.11.2008 holds good. 7. Learned Government Pleader for Revenue and learned counsel appearing for the contesting respondents have with equal vehemence contended that there is abundant material to establish that the petitioner had encroached on Survey No.227 and damaged the bund and that the sketch which was revised by the Government on 24.11.2008 was a proceeding contrary to law. Reliance is also placed on the observations of this Court in W.P.No.9754 of 2009 with regard to revisional power of the Government as well as and the order of Collector is accordingly sought to be justified by the contesting respondents. 8. In all fairness, however, learned counsel for the respondents did not contest the contentions urged by the learned senior counsel for the petitioner with regard to procedural irregularity by the first respondent in not hearing and deciding the appeal on merits but merely on the basis of default of the counsel in appearing on 16.12.2011. 9. Though I had heard this matter at length on two different dates, several factual questions cropped up for consideration during the hearing. The factual aspects are necessarily linked with at least four joint inspection reports of survey some of which supports the case of the petitioner, while other records a contrary finding. Apart from the above joint survey, the District Collector while hearing the appeal at the stage of passing interim orders which are extracted above, had also called for joint inspection report and based on that had passed interim order which is extracted above. Several factual aspects would therefore need proper adjudication by the Commissioner of Appeals, but on account of the circumstances as mentioned above, the learned Commissioner has not decided the appeal on merits. The petitioner’s counsel was not present on 16.12.2011 and was unsuccessful in getting the hearing restored, has therefore approached this Court by this writ petition. Ordinary, a request of counsel on ill health ought to be accepted without necessity of corroboration, but it was rejected and valuable appeal of petitioner was rejected. 10. In the interest of justice and in order to have clarity on the factual aspects, an adjudication on the questions urged by both sides is necessary. Therefore, I deem it appropriate to allow W.P. No.34127 of 2011 by setting aside the orders of the first respondent dated 16.12.2011 and 17.12.2011 and remit the appeal filed by the petitioner to the first respondent for fresh adjudication and disposal in accordance with law. The learned Commissioner shall fix a fresh date of hearing and notify all the parties, hear them and pass appropriate orders in accordance with law. The learned Commissioner of Appeals shall be free to seek such assistance as he deems fit, including any survey report, if he desires it necessary and put the parties to notice thereof and then consider and pass appropriate orders in the appeal. 11. Pending hearing of the appeal and keeping in view the fact that the petitioner was not permitted to take up mining activity in pursuance of primary order of the Tahsildar dated 11.5.2010 the interim arrangement as per order passed by the District Collector, Warangal pending appeal before it on 31.5.2010, in my view would satisfy balance of convenience. In that view of the matter, to the extent of Survey No.264/1 which is under the lease of the petitioner, and which is a patta land, there appears to be no impediment in permitting the petitioner to carry on mining activity as was allowed by the Collector, Warangal, under the interim order dated 31.5.2010 referred to above. The writ petitioner, therefore, shall be entitled to operate mining lease granted in his favour in Survey No.264/1 only subject to condition that the petitioner shall deposit within a week from today the amount of Rs.1,98,385/- with the Tahsildar-4th respondent and produce the receipt thereof before the learned Commissioner on the date fixed for hearing of the appeal. The learned Commissioner shall consider and dispose of the appeal as directed above expeditiously. 12. Learned senior counsel for the petitioner states that the material, which is already quarried and extracted awaits despatch, but on account of the orders of the Tahsildar the said material could not be despatched and seeks permission for that purpose. Since the entire matter is remitted to the learned Commissioner, the petitioner is free to make an application before the Commissioner who shall consider the said request in accordance with law and pass appropriate orders. 13. In view of the order passed in W.P.No.34127 of 2011, W.P. No.33585 of 2011 is dismissed as infructuous. No costs. ____________________________ VILAS V. AFZULPURKAR, J. Date: December 28, 2011. BSB