IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY NINETH DAY OF FEBRUARY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.Y.SOMAYAJULU WRIT PETITION NO : 8339 of 2001 Between: Banathu Chanda W/o Bheema, R/o Yedulapuram Village, Chinna Thanda Mandal, Khammam District. ..... PETITIONER AND 1 The Government of Andhra Pradesh, Rep. by its Secretary, Industries & Commerce, Secretariat, Hyderabad. 2 The Director of Mines & Geology, Hyderabad. 3 The Asst. Director of Mines & Geology, Khammam. 4 Indian Barytes & Chemicals Ltd., Rep. by its Chairman S. Sankar Reddy, 3/433, Raja Reddy Street, Cuddapah. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a an order or writ one in the nature of Writ of Mandamus declaring the action of the Respondents in Memo No.10474/M.III.2/2000 dated 14-12-2000 granting Mining lease to the 4th Respondent for Barytes over an extent of 300 acres in Sy.No.76/1 Seripuram Village, Garla Mandal, Khammam District as arbitrary, illegal, unconstitutional and contrary to Sec. 11(5) of M.M. (R&O) Act, 1957 and consequently call for the Records and set aside the Memo No.10474/M.III.2/2000, dated 14-12-2000 and direct the authorities to grant the Mining lease to the petitioner on his application and pass Counsel for the Petitioner: SMT.N.SHOBA Counsel for the Respondents 1 to 3: GP FOR INDUSTRIES & COMMERCE Counsel for the 4th Respondent : Sri M.RAVINDRA NATH REDDY The Court made the following : IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY NINETH DAY OF FEBRUARY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.Y.SOMAYAJULU WRIT PETITION NO : 4772 of 2002 Between: Vananchal Minerals Private Limited, Represented by its Managing Director, B.Suresh Rao, S/o.Chandraiah, Chatti, Chatti Mandal, R/o.Gummada Doddi, Wazeedu Mandal, Khammam District. ..... PETITIONER AND 1 THe Government of Andhra Pradesh, Represented by its Secretary, Industies and Commerce, Secretariat Buildings, Khammam. 2 The Director, Mines and Geology, Khammam. 3 The Assistant Director, Mines and Gelogy, Khammam, Khammam District. 4 THe District Collector, Khammam, Khamam District. 5 The Mandal Revenue Officer, Garla, Garla Mandal, Khammam District. 6 M/s.India Baryets & Chemiclas Ltd., 3/433, Raja Reddy Street, Cuddapah. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or direction, more particularly one in the nature of Writ of Certiorari, Calling for the records connected with the G.O.Ms.No.524 dated 17-10-2001 issued by the 1st Respondent and quash the same direct the Respondents 1 to 3 to grant the Mining lease of barytes over an extent of 657.69 acres in SY.No.76 and 76/1, of Seripuram Village, Garla Mandal, Khammam District in favour of the petitioner dated 22.2.99 and pass. Counsel for the Petitioner: MR.P.VEERA REDDY Counsel for the 6th Respondent: MR.M.RAVINDRANATH REDDY Counsel for the Respondents 1 to 5 : GP FOR INDUSTRIES & COMMERCE The Court made the following : THE HON’BLE SRI JUSTICE C.Y.SOMAYAJULU WRIT PETITION Nos.8339 of 2001 and 4772 of 2002 COMMON ORDER: Since these two petitions are interconnected they are being disposed of by a common order. 2. W.P.No.8339 of 2001 is filed questioning the mining lease granted to M/s.Indian Barytes and Chemicals Limited (for short – ‘the Company’) over an extent of 300 acres in Sy.No.76/1 of Seripuram Village, Garla Mandal, Khammam District, by Banathu Chanda, a tribal, inter alia on the ground that in view of Section 11(5) of Mines and Minerals (Development and Regulation) Act, 1957 (for short – ‘the Act’), as amended by the Government of Andhra Pradesh, which mandates that no prospecting licence or mining lease can be granted in the Scheduled Areas to any person who is not a member of Scheduled Tribes, and to undertaking owned or controlled by the State or Central Government, or a Society registered or deemed to be registered under the provisions of the A.P. Cooperative Societies Act, 1964, which compose of members of Scheduled Tribes only and as the company does not satisfy the requirements of Section 11(5) of the Act. 3. W.P.No.4774 of 2002 is filed seeking a direction to the Government of Andhra Pradesh, the Director and Assistant Directors of Mines and Geology, Khammam, to grant mining lease of Barytes over an extent of 657.69 acres in Sy.Nos.76 & 76/1 of Seripuram village, Garla Mandal, Khammam District, in favour of the petitioner therein i.e. Vananchal Minerals Private Limited, on the ground that it being a company owned by a tribal is entitled to preference over the other applicants. 4. The case of the petitioners is that inasmuch as the land in S.No.76/1 is situated in Seripuram village, which is a Scheduled Area, in view of Section 11(5) of the Act none others except tribals can be granted the mining lease in that land and as the petitioner in W.P.No.8339 of 2001 belongs to Scheduled Tribe community and as the petitioner in W.P.No.4772 of 2002 is a company in which tribals only are the shareholders, they only are entitled to preference and so, the mining lease granted in favour of the Company is liable to be cancelled. 5. The case of the first respondent (Government of Andhra Pradesh) is that inasmuch as the application submitted by the petitioner in W.P.No.8339 of 2001 was received on 07.06.1999 for an extent of 750 acres in Sy.Nos.76 and 76/1 of Seripuram village, Garla Mandal, and as the application of the Company was received on 19.11.1997, the Company has priority over the application submitted by the petitioner in W.P.No.8339 of 2001 and as it granted mining lease in an extent of 300 acres to the Company subject to certain conditions, and as Viswabharathi Mining Corporation was granted mining lease in extent of 302 acres as per G.O.Ms.No.79, Industries & Commerce Department, dated 11/02/1985 and as an extent of 12 acres was assigned pattas and as the balance land available in those survey numbers is a non-mineral bearing area, none of the petitioners are entitled to any relief. 6. The case of the Company is that inasmuch as Seripuram village is not declared as a Scheduled Area, it being the first applicant for lease is entitled to grant of the mining lease and so there are no grounds to cancel the lease granted in its favour. 7. In view of Section 11(5) of the Act as amended in Andhra Pradesh if the land in Sy.No.76 and 76/1 of Seripuram village, Garla Mandal, is located in a Scheduled Area, the Company, not being a Government Company and not being a Society or Company owned by tribals, the mining lease granted in favour of the Company is liable to be set aside. If Seripuram village is not notified as a Scheduled Area, as the application of the Company is anterior to the applications submitted by the petitioners in both the petitions, both the petitions have to fail. In view thereof, the only point for consideration in these petitions is whether the Seripuram village is notified as Scheduled Area or not. 8. The contention of Smt. N.Shoba, learned counsel for petitioner in W.P.No.8339 of 2001, is that there are two Seripurams in Khammam District one of which is notified as a scheduled area and another is not and the material papers produced by the Company along with WPMP No.36284 of 2007 contains a draft of the Scheduled Areas (Andhra Pradesh) Order, 1996, with a list of villages which have to be included in the Scheduled Areas, by rescinding Scheduled Areas (Part ‘A’ States) Order, 1950 (hereinafter referred to as ‘the Presidential Order’), and the Scheduled Areas (Part ‘B’ States) Order, 1950, passed earlier and as Seripuram is shown as one of the villages in the Scheduled Area, it is clear that Seripuram is located in Scheduled Area. She also relied on G.O.Ms.No.232 Finance & Planning (FW.TA) Department dated 24.05.1994 where it is stated that the Village “Seripuram” (1981-Census Code No.35) in Garla Mandal in Khammam District has to be included after Sl.No.9-Census Code No.34-Pocharam and consequently Sl.No.10 ‘Kannai Gudem’ may be renumbered as Sl.No.11, and all the employees of Government and Local Bodies with headquarters of ‘Sujathanagar’ in Kothamgudem Mandal in Khammam District are not entitled for Bad Climate Allowance, Special Compensatory Allowance and Additional H.R.A. payable in Scheduled Areas from the date of the order but all the Government employees and employees of local bodies with headquarters at ‘Seripuram’ village in Garla Mandal in Khammam District are eligible for payment of these Special Allowances, subject to the terms and conditions stipulated in G.O.Ms.No.297, Finance and Planning (FW.TA) Department, dated 28.12.1991 and G.O.Ms.No.298, Finance and Planning (FW.TA) Department, dated 28.12.1991and contended that that fact also clearly shows that Seripuram is a village in the Scheduled Areas, and so the mining lease granted in favour of the Company is not valid. The learned counsel for petitioner in W.P.No.4772 of 2002 adopted the contentions raised by Smt.N.Shoba. 9. The contention of the learned Government Pleader is that inasmuch as item No.12 of the Presidential Order shows that all villages of Yellandu taluq of Warangal district except Yellandu, Singareni and Sirpur villages and Kothaguda town only are declared as Scheduled Areas, it is clear that Sirpur is not in Scheduled Area and so first respondent did not commit any error in granting the mining lease to the Company which is the first applicant. 10. The contention of the learned counsel for the Company is that the erstwhile Government of Hyderabad, in exercise of the powers conferred to it by Section 5 of the Hyderabad Land Revenue Act, 1317 Fasli, had on 06.05.1950 issued a notification in supersession of all the previous orders in that behalf, notifying the taluqs and villages in each district in the State of Hyderabad in the schedules annexed thereto, and 15th Schedule thereof relates to Warangal district, and as per that schedule, Warangal district consisted of 9 taluqs including Yellandu taluq and as per that notification, Yellandu Taluq was consisting of 103 villages, and Girdawar’s Circle Garla, mentioned therein consisted more than 27 villages of which Seerpur is one and that Seerpur is shown as the main village with one hamlet Venkannaguda, and in the list of villages in Girdawar’s Circle, Shujayathnagar, there is another Sripuram which is shown as Sripuram Shujayathnagar as the main village with 10 hamlets, and subsequently the President of India, in exercise of the powers vested in him by the Article 244(1) of the Constitution of India, issued orders specifying the areas declared to be Scheduled Areas vide the Scheduled Areas (Part ‘B’ States) Order, 1950, in which all the villages of Yellandu Taluq of Warangal District excluding the villages Yellandu, Singareni and Sirpur and Kothaguda town were made part of scheduled area and subsequently Khammam District was created vide Notification No.48/A4/193/53 by bifurcating 5 taluqs from Warangal District i.e. Khammam Taluq except Kamepally and Siruvole, Yellandu Taluq, Madira Taluq, Bhoorugupadu Taluq and Paloncha Taluq (Kothagudem Taluq) and thereafter Bhadrachalam Taluq and Nugur Sub Taluq of East Godavari District also were merged in Khammam District vide G.O.Ms.No.2384 taking the total number of taluqs in Khammam District to 7 from 5 and after Sathupalli Taluq was formed carving out areas from Madhira and Manuguru Taluqs, total number of taluqs of Khammam District became 8 from 7 and thereafter two more taluqs namely Tirumalayapalem and Manuguru Taluqs were formed increasing the number of taluqs in Khammam District from 8 to 10, and vide G.O.Ms.No.1420 Revenue (O) dated 20.11.1979 two more taluqs namely Aswaraopet and Sudimalla Taluqs were formed by bifurcating portion of Fircas of other Taluqs, taking the number of taluqs in Khammam District to 12 from 10 and as Sirpur in Garla Circle (Mandal) is different from Sripuram of Sujathanagar and Sirpur of Garla Circle is excluded in the Scheduled Areas (Part ‘B’ States) Order, 1950, it is clear that Sripuram is not in Scheduled Area and so the lease granted in favour of the Company needs no interference. His next contention is that the Presidential Order cannot be interpreted with reference to the letters issued by the District Collector or anybody else, and as the President only can amend or modify the Order issued by him, merely because of the recommendations or views of the Collector, an area which is not included in the Order issued by the President would not become a Scheduled Area and relied on the observations in para-7 of BASAVALINGAPPA v. MANICHINNAPPA[1] in support of his said contention. 11. In reply the contention of Smt Shoba is that inasmuch as the letter D.O.Lr.No.D2/3521/99 dated 17.8.2000 of the Collector and District Magistrate, Khammam District, clearly shows that Seripuram village of Garla Mandal is in the Scheduled Areas and is treated as a Scheduled Village for all practical purposes in view of its continuity with all the other Scheduled villages of Garla Mandal, it cannot be singled out and cannot be treated as Non- Scheduled village, Seripuram village of Garla Mandal has to be treated only as Scheduled Area for all practical purposes. 12. As per Part C of the V Schedule to the Constitution of India, only the President has the power and authority to declare or amend the Scheduled Areas. Therefore, until the President declares, by notification, an area as a scheduled area, merely because the Collector of a district or some other authority thinks or feels a village to be a Scheduled Area or thinks that it is in a Scheduled Area, that village does not become a Scheduled Area. So, the question whether Seripuram village is a Scheduled Area or not has to be decided only with reference to the Presidential Order but not by taking into consideration any other document or government order. 13. As seen from the Presidential Order all the villages except Yellandu, Singareni and Sirpur and Kothaguda town in Warangal District of Hyderabad State are made Scheduled Areas. As seen from the documents produced by the learned counsel for the Company, Khammam District was carved out of Warangal District by bifurcating 5 taluks in Warangal District and so Yellandu taluq and four other taluqs in Warangal District became Khammam District. In order to find out what are all the villages in Yellandu taluq of Warangal District, which later became a part of the Khammam District, I requested the Government Pleader to produce a list of the villages in Yellandu taluq of erstwhile Warangal District and present Khammam District, because the contention of the learned counsel for the petitioner in W.P.No.8339 of 2001 is that ‘Sirpur’ mentioned in the Presidential Order is different from ‘Seripuram’ of Garla Mandal, where the land in dispute is situate and Seripuram of Sujathanagar, to find out if there are two different villages by names ‘Seripuram’ and ‘Sirpur’ in Yellandu Taluq. The list of villages in the Yellandu Taluq, produced by the learned Government Pleader, shows that that taluq consisted of four Girdawar’s Circles i.e. Girdawar’s Circle Singareni, Girdawar’s Circle Shujayatnagar, Girdawar’s Circle Garla and Girdawar’s Circle Gundal. As the land, which is the subject matter of dispute, is in Girdawar’s Circle of Garla and as Girdawar’s Circle Shujayatnagar is a Circle different from that of Garla Girdawar’s Circle, the Presidential Order has to be interpreted only with reference to the villages in Garla Mandal. When Khammam Taluq was formed there were 165 villages therein. Thereafter, when Mandals, in place of Taluqs, were created through notification dated 16-05-1985, Garla Mandal came into existence with 11 villages i.e. Pullur, Mulkanuru, Maddivancha, Chandragiri, Rampuram, Buddaram, Garla, Gopalapuram, Pocharam, Seripuram and Kannaigudem. In Khammam Mandal and other Mandals there is no village with the name Seripuram or Sripuram. But the name Shujayatnagar is found in Khammam Mandal. So, I am unable to accept the contention of the learned counsel for petitioner in W.P.No.8339 of 2001 that the ‘Seripuram’ in this case should be taken as ‘Sripuram Shujayathnagar’. 14. When there is only one ‘Seripuram’ in Yellandu Taluka of erstwhile Warangal District, ‘Sirpur’ referred to in the Presidential Order, can only be ‘Seripuram’ in the present Garla Mandal but it cannot be taken as Shujayatnagar near Kothaguda and so I hold that ‘Seripuram’ as per the Presidential notification is not within the Scheduled Area. 15. The contention of the learned counsel for petitioner in W.P.No.8339 of 2001 that the draft notification produced by the learned counsel for petitioner itself establishes that Seripuram is in the Scheduled Areas cannot be accepted because only a proposal was made in that Draft Order to include all the villages mentioned therein along with their hamlets as Scheduled Areas. Till the President approves the said draft order and issues a fresh order amending the earlier Presidential Order, Seripuram cannot be taken as a village in the Scheduled Area. 16. In view thereof, I find no merits in these writ petitions and hence the writ petitions are dismissed with costs. -------------- 29.02.2008 Cvrk ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies [1] AIR 1965 SUPREME COURT 1269