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2011 DIGILAW 281 (AP)

K. Ravi Shankar v. A. Narender

2011-03-28

B.PRAKASH RAO, P.DURGA PRASAD

body2011
Judgment : BPR, J 1. Heard Sri B. Adinarayana Rao, learned counsel appearing for the appellants, Sri Gaddam Srinivas, learned counsel appearing for the contesting respondent-writ petitioner, and the learned Government Pleader for Mines and Geology apart from Sri V. Subrahmanyam, learned Standing counsel appearing on behalf of A.P. Mineral Development Corporation Limited, which is respondent No.5 herein. At the request of the learned counsel on all the sides, the main appeal is taken up for disposal at the admission stage. 2. The appellants, who are respondent Nos.5 to 7 in the writ petition filed by respondent No.1 herein, files this appeal under Clause 15 of the Letters Patent, interalia, seeking to assail the correctness of the order, dated 09-03-2011 passed by a learned single Judge of this Court in W.P.M.P.No.2857 of 2011 in W.P.No.2293 of 2011, granting interim suspension of the impugned proceedings, dated 29-09-2010 of the second respondent herein i.e., the Government of Andhra Pradesh, and the consequential proceedings, dated 02-02-2011, of the fourth respondent herein i.e., the Assistant Director of Mines and Geology, whereby permits were granted to the appellants herein. 3. Briefly the facts, which are not in dispute, are that in the writ petition, respondent No.1 herein sought for a Mandamus assailing the aforesaid impugned proceedings contending that he is a businessman by profession and has been participating in the sand auctions conducted by the Government in the State and also referring to the latest participation in the auctions conducted, contends that he has come to know about the grant of temporary permits in favour of the appellants herein to lift the ordinary sand deposited in the patta land in Sy.No.86/A, 86/a, 86/3, 86/E, 87/A and 84/3 of Damrancha village, Birkur Mandal, Nizamabad District, under the impugned proceedings and that the action of the State Government authorizing the owners of the land i.e., pattadars to lift the sand by paying normal seigniorage fee, is contrary to the rules. The main plan, on which the writ sought to rest, was that as per Rule 9-M of the Andhra Pradesh Minor Mineral Concession Rules, 1966 (for short “Rules”), as amended in G.O.Ms.No.84, dated 10-04-2007, necessarily permits have to be granted only by conducting an auction, though it also contemplates issuance of temporary permits for the limited period as an alternative measure. Therefore, the entire action on the part of the authorities in granting the permits under the impugned proceedings is wholly unsustainable. 4. Initially the learned single Judge granted interim orders on 04-02-2011 against which an appeal was preferred by the appellants in W.A.No.104 of 2011 and the same was allowed as per the orders, dated 01-03-2011 on the ground that the said orders are not only exparte but also without impleading the appellants in whose favour the permits were granted and they were not made as a party and the orders are behind their back. Therefore, while allowing the appeal, the matter was directed to be taken up again and pass appropriate orders after hearing both sides including the appellants herein. Subsequent thereto, the impugned orders, dated 09-03-2011 are passed by the learned single Judge granting interim suspension of the impugned proceedings in the writ petition observing as follows: “As much as the mineral rights vest with the State, there is no reason for allowing the pattadars to lift such huge quantity of 1,09,652 cubic metres of mineral without putting it to auction. Merely because the said sand is accumulated in the private patta lands, same cannot be allowed to be taken out by the pattadars. A perusal of Rule 9-M of the Rules shows that it merely empowers the authority for issuance of temporary permits in specified contingencies in favour of the Mineral Development Corporation only. In that view of the matter, prima facie, there appears no reason or justification for permitting the pattadars to lift such huge quantity of sand by merely paying seigniorage fee without putting it to auction. As it is stated that the petitioner is a businessman and has participated in sand auctions earlier, he has also established his locus standi to question the impugned Memos.” 5. Thus, from the above, the main reason which weighed with the learned single Judge is about the mandate as contemplated under Rule 9-M of the Rules to conduct public auction, but not otherwise, and to grant only the temporary permits in favour of the Mineral Development Corporation, which is also impleaded as respondent No.5 in this appeal and also in the writ petition. 6. 6. After considering the submissions made on behalf of both sides and also on perusal of the material on record, it is relevant to take note of the main content under G.O.Ms.No.24, Industries and Commerce (M.I) Department, dated 12-02-2007, whereunder by proceeding to consider the issue with the background about the change of the authorities, it is noted in paras 2 to 4 as follows: "2. The Government have reviewed the matter of auctioning of sand being regulated by Panchayat Raj and Rural Development Department and has observed that ever since the power of auctioning of Sand has been transferred to the Panchayat Raj and Rural Development Department, there has been a steady reduction in revenue realization from Sand auctions from year to year, since 2000-01 till date, and also has noticed that there is indiscriminate quarrying and illegal transportation of sand leading to depletion of ground water and other environmental problems. The aim with which it was transferred to Panchayat Raj and Rural Development Department could not be fulfilled as there was a reduction in the revenues from auction of sand. 3. Subsequent to the transfer of the subject to Panchayat Raj and Rural Development Department, Government of Andhra Pradesh has brought out an Act called Andhra Pradesh Water, land and Trees Act, 2002 to promote conservation of tree cover and to regulate the exploitation and use of ground and surface water for protection and conservation of water source, land, environment and matters connected therewith or incidental therewith. The said Act interaliadeals with the detailed procedures to be followed with regard to the areas where sand mining is affecting the ground water regime, prohibiting such areas from mining the distances, depths to be maintained in the matter of sand quarrying, etc. These being matter of a technical nature, it is imperative that the personnel who are technically competent must be made responsible to deal with the subject. 4. Minerals in general are categorized as Major Minerals and Minor Minerals and as far as Minor Minerals are concerned, section 15 of the Mines and Minerals (Development and Regulation) Act 1957 empowers the respective State Governments to make their own law to regulate the activity. Earlier when the subject was transferred to Panchayat Raj and Rural Development Department, they have brought into force “the Andhra Pradesh Panchayat Raj (Auction of Sand in the Water Courses vesting in Grama Panchayats) Rules, 2000”. Earlier when the subject was transferred to Panchayat Raj and Rural Development Department, they have brought into force “the Andhra Pradesh Panchayat Raj (Auction of Sand in the Water Courses vesting in Grama Panchayats) Rules, 2000”. These rules were challenged before the Hon’ble High Court of A.P. and in W.P.Nos.6242/2000&8255/2000, the Hon’ble High Court struck down the said Rules by observing that the Rules can be promulgated under the powers delegated under section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 but not under the Panchayat Raj Act, since ordinary sand is declared as Minor Mineral under section 3(e) of the Mines and Minerals (Development and Regulation) Act, 1957. Considering the above observations of the Hon’ble High Court, amendments were brought duly incorporating the regulation of sand under rule 9(b) of the Andhra Pradesh Minor Mineral Concession Rules, 1966, in G.O.ms.No.1, Industries and Commerce (Mines-I) Department, dated 01-01-2001. The Department of Mines and Geology is dealing with the regulation of minerals and is staffed with technical officers. While the collection of revenue is important, it is also the responsibility of Government to conserve, and protect this natural resources keeping in view the depletion of ground water and the need to preserve the environment etc., as envisaged in the Andhra Pradesh Water, Land and Trees Act, 2002. It is there felt necessary to review the policy again and the Government after review, have come to a conclusion that the Department of Mines and Geology, which is dealing with Minerals with the support of technical officers available on hand at field level, is better equipped to deal with matters relating to Sand instead of a technically less equipped Department like Panchayat Raj and Rural Development Department.” 7. Ultimately it was proposed as a policy in para-14 to the following effect: “14In the eventuality of the pattadar wanting to lift sand on his own he shall apply to the Government through the District Level Committee duly evaluating the total quantity of sand available in the area. The same shall be assessed by the concerned Assistant Director of Mines and Geology who will take the approval of District Level Committee and then only submit proposals to the Government. The same shall be assessed by the concerned Assistant Director of Mines and Geology who will take the approval of District Level Committee and then only submit proposals to the Government. After getting approval of Government, the pattadar shall pay seigniorage fee at the rates fixed in the Minor Mineral Schedule for the bulk quantity assessed and then only he will be permitted to lift the sand in the specified area for a specified period. However, the price at which he sells sand and all other norms laid down by the District Level Committee shall apply.” 8. Therefore, from the above it transpires that the process of granting permits is only directed against the corporation though allowing the pattadars to pay seigniorage fee and with permission to lift the sand in a specified area for a specified period. There is no dispute to the fact that the land, as already stated in the very affidavit filed in support of the writ petition, is filled up with the sand due to deposits made in the said patta lands. Therefore, it is not assigned which normally exists in the riverbed. Be that as it may. There is no dispute to the fact that the sand, which constitutes as minor mineral, vests in the State Government without any right as such in any individual much less any pattadar or owner of the land. 9. However, in PALLAVA GRANITES INDUSTRIES INDIA (P) LTD v. GOVT. OF A.P. 1996 (4) ALT 706 , it has been held by a Division Bench of this Court that necessary requirement of consent of the pattadars would be fair to both sides to avoid future litigation and a recommendation was made to make necessary amendments to the Rules. 10. In BHAGWAN DASS v. STATE OF U.P. (1976) 3 SCC 784 , the question came up for consideration, while considering the Mines and Mineral (Regulation and Development) Act 67 of 1957, was in regard to the right of the pattadars in respect of the subsoil rights on the minerals. It was held that ultimately after the enactment of the provisions of the Mines and Minerals (Regulation and Development) Act 67 of 1957, all such rights should be abolished. Therefore, it has to be governed by the State and regulated. 11. It was held that ultimately after the enactment of the provisions of the Mines and Minerals (Regulation and Development) Act 67 of 1957, all such rights should be abolished. Therefore, it has to be governed by the State and regulated. 11. Though reliance is sought to be placed under Rule 9 of the Rules, which itself contemplates the grant of temporary permits due to any exigency and that too with the payment of seigniorage fee, the writ petitioner-respondent No.1 herein is only asking for conducting of public auction in the regular manner. However, necessarily, as specifically pointed out in the impugned proceedings itself, such exigency exists for issuance of temporary permits in favour of A.P. Mineral Development Corporation for a period of 60 days, who in turn will provide for lifting of the sand by the pattadars in their patta lands on payment of necessary seigniorage fee subject to the verification of other requirements. Therefore, in this view of the matter and the policy decision, which does not in any way run contrary to the Rules, permits have been granted to the pattadars, who are the appellants herein, through the corporation itself. Thus there is ample check and necessary safeguards are provided in regard to the mineral and it is not a case where any permission has been granted directly in favour of the pattadars. Ultimately it is the corporation which is being given the permission who in turn was authorized to issue temporary permits. 12. In the circumstances, it cannot be said that there is any violation of the mandate or the safeguards as provided under the law and especially the Rules concerning the minor mineral. The writ petitioner-respondent No.1 herein cannot make any grievance as such nor can be said to have any locus vis-à-vis Mineral Development Corporation or the appellants to whom the permits are being granted. For the aforesaid reasons, the learned single Judge was not right in granting suspension of the impugned proceedings.13. The writ appeal is, accordingly, allowed. The impugned order, dated 09-03-2011 passed in W.P.M.P.No.2857 of 2011 in W.P.N.2293 of 2011 is set aside. No order as to costs.