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Andhra High Court · body

2005 DIGILAW 190 (AP)

M. Krishna Reddy v. Government Of A. P.

2005-03-01

C.Y.SOMAYAJULU

body2005
C. Y. SOMAYAJULU, J. ( 1 ) QUESTIONING the rejection of the application of the revision petitioner for grant of quarry lease over an extent of 1. 494 hectares in Sy. No. 103 (P) of Konidena village, Ballikurava Mandal, Prakasam district, petitioner filed this writ petition. ( 2 ) THE facts, which are not in controversy, are one K. Nageswara Rao applied for prospecting licence over 2 hectares of land in Sy. No. 103 (P) of Konidena village, which was to expire on 17-8-2002. During the pendency of that licence i. e. on 14-8-2002, revision petitioner submitted an application for quarry lease for colour granite in the said sy. no. in Form No. n as per Rule 12 (5) of the A. P. Minor, Mineral concession Rules, 1966 (hereinafter referred to as the Rules ). Fourth respondent also gave an application on 19-8-2002 for quarry lease for 3 hectares in the said sy. no. The Director of Mines and Geology, in his proceedings dated 23-10-2004, while rejecting the quarry lease application of the revision petitioner as premature, granted quarry lease to the fourth respondent. Aggrieved by the said order of the Director of Mines and Geology, revision petitioner preferred a Revision under Rule 35-A of the Rules to the Government on 27-10-2004, which was dismissed on 12-2-2005. Questioning the same revision petitioner filed this writ petition. ( 3 ) THE main contention of the learned counsel for the petitioner is that though elaborate arguments were addressed by both sides the revisional authority without adverting to any of the contentions raised, mechanically and without proper application of mind, dismissed the revision. It is her contention that the Director of Mines and geology instead of passing an order on the application submitted by the petitioner, had, in the order granting quarry lease to the fourth respondent, observed that the application of the petitioner for quarry is rejected as it is premature without assigning any reasons as to how it is premature. It is her contention that the application submitted by the petitioner during the subsistence of prospecting licence of k. Nageswara Rao is not and cannot be premature in view of the ratio in Labour contract Co-operative Society, Palikur, kurnool Distt. Rep. by its Secretary v. Director of Mines and Geology, hyderabad, AIR 1993 SC 147 . It is her contention that the application submitted by the petitioner during the subsistence of prospecting licence of k. Nageswara Rao is not and cannot be premature in view of the ratio in Labour contract Co-operative Society, Palikur, kurnool Distt. Rep. by its Secretary v. Director of Mines and Geology, hyderabad, AIR 1993 SC 147 . It is her contention that since as per Rule 12 (5) (b) of the Rules, when there is plurality of applications the earliest applicant is entitled to preference over the others and if a subsequent applicant s case has to be considered, prior permission of the government, after recording reasons, has to be obtained and since admittedly no such permission is obtained and since petitioner s application is earlier to that of 4th respondent, petitioner alone is entitled to the quarry lease more so because as per the note appended to Rule 12 (5) of the Rules, just above Rule 12 (6) of the Rules reads:"in respect of matters for which no special provision is made in this sub-rule for granite the provisions contained in other rules shall apply"and since no time for submission of application for quarry lease during the subsistence of a prospectus licence in favour of another person is prescribed in rule 12 (5) of the Rules, an application can be made by a third party within 90 days of expiry of the lease and thirty days prior to the expiry of the lease application submitted by the petitioner three days prior to the expiry of the prospectus lease (licence) in favour of K. Nageswara Rao is a valid application. ( 4 ) THE contention of the learned government Pleader is that since the application submitted by the revision petitioner is premature and since the petitioner did not also respond to the several notices issued by the Director for inspection of the site, the Director rightly rejected the application of the revision petitioner. ( 4 ) THE contention of the learned government Pleader is that since the application submitted by the revision petitioner is premature and since the petitioner did not also respond to the several notices issued by the Director for inspection of the site, the Director rightly rejected the application of the revision petitioner. ( 5 ) THE contention of the learned counsel for 4th respondent is that since K. Nageswara Rao was holding a prospecting licence upto 17-8-2002 and since the revision petitioner submitted an application for prospecting licence even before the expiry of the said prospecting licence, the said application is but premature and since 4th respondent applied for quarry lease on 19-8-2002, after the expiry of the period of prospecting licence to Nageswara Rao, 4th respondent s application would be the first application for quarry in that area, so he alone is entitled to the quarry lease as per Rule 12 (5) of the Rules. It is his contention that even assuming without admitting that petitioner s application is earlier to that of the 4th respondent, since petitioner failed to respond to the notices for being present at the time of survey and since 4th respondent was present at the time of survey on number of occasions, and since no survey was conducted in respect of the application of the petitioner, but was conducted on the application of the 4th respondent and since Rule 12 (5) (d) lays down that an application for Prospecting or quarrying Licence can be rejected in the event of default of attending the inspection and survey, and other reasons, it is clear that application of the petitioner was rejected because of his failure to attend the survey. It is his contention that the ratio in Labour contract Co-operative Society case (supra) relied on by the learned Counsel for the revision petitioner does not apply to the facts of this case as it does not relate to quarry lease of granite, which is covered by rule 12 (5) of the Rules only and since this is a case relating to quarrying of granite and so an application submitted during the subsistence of prospecting licence should be deemed to be an invalid application and so the non consideration of the application of the petitioner cannot be said to be erroneous and in such event, since the application of the 4th respondent only remained, there was no need for prior approval of the Government and in any event since a lease was executed in favour of the fourth respondent and since he put up the machinery and has started the quarrying operations, the petition is liable to be dismissed. ( 6 ) IN Labour Contract Co-operative society s case (supra) relied on by the learned Counsel for the petitioner, the supreme Court while considering the effect of the Rules held as follows:"1. An existing lessee has to apply for renewal, if he so chooses, at least ninety days before the expiry of the period of his lease. Such application has to be disposed of before the expiry of his lease. If it is not so disposed of, the application must be deemed to have been rejected (Rule 13 (2) ). 2. Within ninety days of the expiry of the lease and thirty days before the expiry of the lease, it is open to others too to apply for grant of lease in respect of the area, or a part of the area, held by the lessee (Rule 12 (4) ). These applications may be terms as second Category applications. If any such application or applications are received under Rule 12 (4) they should be considered and disposed of in accordance with law. 3. Applications for lease received within thirty days of the expiry of the lease and diose received after the expiry of the lease constitute the third category. These applications too have to be considered and disposed of in accordance with law. 4. The above three categories are in the descending order. Each category enjoys a preference over the other. 3. Applications for lease received within thirty days of the expiry of the lease and diose received after the expiry of the lease constitute the third category. These applications too have to be considered and disposed of in accordance with law. 4. The above three categories are in the descending order. Each category enjoys a preference over the other. In other words, the application for renewal filed by the existing lessee under Rule 13 (2) shall be taken up first and disposed of. If renewal is granted, exhausting the area of lease, no occasion arises for considering the applications falling in the second and third category. In case, however, where no applications for renewal is filed or where it is filed but rejected, the second category applications shall have to be taken up and considered. If any of them are allowed and lease granted, exhausting the area of lease, there is no occasion for considering the third category applications. In case, no application falling in the second category is received or if received, is rejected, does the occasion arise for taking up and considering the third category applications. 5. We may clarify in the interest of unbroken exploitation of mineral wealth that the authority can well receive the applications falling widiin all the three categories, if and when filed. For example, he ought not to refuse to receive the second category applications merely because the renewal application is filed and so on. But the applications received shall be placed in their proper category and considered in die order indicated above. " ( 7 ) THE contention of the learned counsel for the fourth respondent is that the above observations have no application to the facts of this case because, in that case, the Apex Court was not considering a lease/licence relating to quarrying of granite, which is governed by Rule 12 (5) of the rules and so the ratio in that case cannot be applied to this case. It is no doubt true there is no reference to Rule 12 (5) of the rules in the above decision. Rule 12 (5) of the Rules, which is a self contained Rule in respect of granite useful cutting and polishing only, applies to applications for quarry of granite. It is no doubt true there is no reference to Rule 12 (5) of the rules in the above decision. Rule 12 (5) of the Rules, which is a self contained Rule in respect of granite useful cutting and polishing only, applies to applications for quarry of granite. The contention of the learned counsel is, since Rule 12 (5) is silent as to when an application for either prospecting or quarry licence can be applied, "note" towards the end of Rule 12 (5) of the Rules and just above Rule 12 (6) of the Rules applies and so the above decision which lays down as to when and how applications for renewals or fresh leases can be filed does apply to the facts of this case, and so the application of the petitioner cannot be rejected as premature. Here it should be stated that in "law of Mines and Minerals," (12th edition by P. Seshagiri Rao), there is a note below Rule 12 (5) and above rule 12 (6) of the Rules reading:"in respect of matters for which no special provision is made in this sub-rule for granite, the provisions contained in odier rules shall apply. "but in the law of Mines and Minerals (11th Edition) by, the same author p. Seshagiri Rao, below clause (xvi) of rule 12 (5) and above Rule 12 (6) there is "note (deleted)" i. e. , omitted by G. O. Ms. No. 331, Industries and Commerce (Ml) department, dated 21-6-2000. ( 8 ) THE contention of the learned counsel for the petitioner is that the mistake crept in 11th Edition of law of mines and Minerals of P. Seshagiri Rao, was corrected in the next Edition i. e. , 12th Edition and that is so would be evident from the fact that G. O. Ms. No. 331, dated 21-6-2000 makes no reference to the note above Rule 12 (6) and immediately below Rule 12 (5) (xvi), but relates among other things, to deletion of note Rule 12 (5) (e ). ( 9 ) LEARNED Government Pleader is unable to produce the Rules that were actually in force on the date on which the application was submitted. ( 9 ) LEARNED Government Pleader is unable to produce the Rules that were actually in force on the date on which the application was submitted. It is unfortunate that Government is not coming out with publications of various Acts and Rules to enable public to know the correct position of the laws in force and so everybody is forced to rely on the books published by private publishers, which contain discrepancies as pointed out above. If a note just above Rule 12 (6) and towards the end of the Rule 12 (5) in fact is in existence in the Rules, since there is no provision in Rule 12 (5) of the Rules as to when an application of quarry licence can be submitted, in view of the rule position enunciated by Labour Court co-operative Society s case (supra) application filed by a third party i. e. , petitioner, thirty days prior to the expiry of the prospecting licence of K. Nageswara rao cannot be said to be premature, and would be a valid application. As rightly contended by the learned Counsel for 4th respondent in view of Rule 12 (5) (d) of the Rules if an applicant fails to attend the inspection of survey or for the other reasons mentioned therein, his application can be rejected. ( 10 ) AS per my direction, the learned government Pleader produced the file relating to the disposal of the revision preferred by the petitioner under Rule 35-A of the Rules. Learned Counsel for petitioner and 4th respondent contended that though they advanced elaborate arguments before the Revision Authority, but the Revision Authority without adverting to any of the contentions holding that there are no valid reasons to interfere with the proceedings of the Director of mines and Geology dated 23-10-2004, dismissed the revision. When several contentions are raised before the Revisional authority, it is expected to consider the said submissions and record a finding thereon, and pass a speaking order. No findings on the specific and important contentions raised by the learned Counsel for petitioner and 4th respondent are recorded by the Revisional authority. When several contentions are raised before the Revisional authority, it is expected to consider the said submissions and record a finding thereon, and pass a speaking order. No findings on the specific and important contentions raised by the learned Counsel for petitioner and 4th respondent are recorded by the Revisional authority. ( 11 ) SINCE the rule position, for the reasons mentioned above, is not clear, and since the revisional authority, which is government, does know the existing rule position, and since no findings on the contentions raised are given, I deem it fit to remit the case to the Revisional authority for deciding the revision afresh, keeping in view the Rule position and the contentions raised and pass a reasoned order, as expeditiously as possible, at any rate within a period of two months from the date of receipt of a copy of this order. Status quo obtaining as on today will be continued till the disposal of the revision by the Revisional Authority. ( 12 ) THE writ petition is disposed of accordingly. No order as to costs.