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2018 DIGILAW 817 (AP)

R. Muthalagan v. Sakku Granites

2018-11-09

S.V.BHATT, T.B.RADHAKRISHNAN

body2018
JUDGMENT : S.V. Bhatt, J. 1. Heard Sri Ganta Rama Rao, learned Senior Counsel for appellant, Smt. N. Shoba for petitioner in WP No. 24594 of 2014, Sri V. Nitesh for petitioner in WP No. 43678 of 2017 and Sri D. Venkat Reddy for 1st respondent in writ appeal. 2. The parties in these matters are same and the grant of mining lease in an extent of one hectare in Un-Surveyed Area of Gudipala Village, Gudipala Mandal, Chittoor District (for short 'the subject-matter') is contested by the parties. 3. The circumstances relevant for disposing of these cases are briefly stated thus: On 29.12.1998, M/s. Lakshmi Granites/5th respondent represented by its proprietor V. Parthasaradhi Naidu applied for grant of quarry lease of Black Granite Mineral available in the subject-matter. On 20th January, 1999, the Mandal Revenue Officer recommended for rejecting the application of 5th respondent for the view held that the subject-matter falls within Forest Area. On 8.6.1999, the 3rd respondent issued to 5th respondent show-cause notice as to why the application dated 29.12.1998 be not be rejected. On 5.7.2000, the 3rd respondent for the aforementioned reason rejected the application of 5th respondent for grant of quarry lease. On 22.1.2004, M/s. Hanuman Granites and M/s. Bharath Granites applied for grant of mining lease for the area covered by the application dated 29.12.1998 i.e., subject-matter. On 22.1.2007, the Tahsildar issued 'No Objection Certificate' to M/s. Sakku Granties/1st respondent for grant of mining lease. The NOC issued in favour of 1st respondent, as is evident from record prompted the 5th respondent to file revision under Rule 35-A of A.P. Minor Mineral Concession Rules, 1966 (for short 'the Rules') challenging the rejection order dated 5.7.2000 made by the 3rd respondent. On 16.6.2007, the 1st respondent made another application for grant of quarry lease. On 9.1.2008, the 2nd respondent allowed the revision and directed the 3rd respondent to consider the application of 5th respondent dated 29.12.1998 for grant of quarry lease. On 23.7.2008, quarry lease was granted to 5th respondent. The 1st respondent filed WP No. 4169 of 2008 challenging the order dated 9.1.2008. During the pendency of WP No. 4169 of 2008, on 11.7.2013, the quarry lease granted in favour of 5th respondent vide order dated 23.7.2008 was transferred for unexpired lease period which is valid upto 22.7.2028 in favour of appellant. The 1st respondent filed WP No. 4169 of 2008 challenging the order dated 9.1.2008. During the pendency of WP No. 4169 of 2008, on 11.7.2013, the quarry lease granted in favour of 5th respondent vide order dated 23.7.2008 was transferred for unexpired lease period which is valid upto 22.7.2028 in favour of appellant. On 29.10.2014, WP No. 4169 of 2008 was allowed without impleading the appellant. Hence, the instant W.A. is at the instance of R. Muthalagan/Transferee under proceedings dated 11.7.2013. We will continue the narration of further events, after referring to prayers in WP Nos. 24594 of 2014 and 43678 of 2017: WP No. 24594 of 2014: "......Writ of mandamus declaring the action of 2nd respondent in Memo No. 906/R4-1/2014 dated 27.6.2014 in directing not to allow conducting of quarry operations and not considering the representation of the petitioner dated 27.7.2014 for issuance of dispatch permits for transportation of black granite in over an extent of 1.000 hectares in Sy. No., gap area of Gudipala Village and Mandal, Chittoor District and not considering the representation of petitioner dated., as arbitrary illegal unjust, unconstitutional and in violation of Mines and Minerals (Development & Regulation) Act 1957 and Mineral Concession Rules, 1960 and Memo No. 12898/M.II(2)/2013-8, dated 8.1.2014 and consequently call for records and direct the Director of Mines and Geology to permit the petitioner for conducting of quarry operations and the Assistant Director of Mines and Geology go issue dispatch permits......." WP No. 43678 of 2017: ".....Writ of mandamus, declaring the action of the 2nd respondent in issuing the impugned Proceedings bearing No. 20960/R5-1/2017, dated 1.12.2017, granting lease to the 5th respondent for conducting quarrying operations in violation of the orders of this Hon'ble Court dated as made in WP No. 4169/2008, dated 29.10.2014 even though the lease granted in favour of the 4th respondent was set-aside through whom the 5th respondent asserting his right as being illegal, arbitrary, violative of Articles 14, 19 and 21 of the Constitution of India and consequently set-aside the same with a direction to forthwith grant lease for conducting quarrying operations in the land over an extent of 1.000 Hectare in Sy. No. Gap area of Gudipala Village and Mandal, Chittoor District which is Black Granite......" 4. No. Gap area of Gudipala Village and Mandal, Chittoor District which is Black Granite......" 4. The 1st respondent herein mainly challenged the order dated 9.1.2008 of 2nd respondent on the ground that the revision filed by the 5th respondent in 2007 is illegal and not maintainable. Further, the 2nd respondent committed a serious illegality in entertaining the revision filed by aggrieved party of an order beyond the time stipulated by Rule 35-A of the Rules, more particularly without praying for condoning the delay in filing the revision within 90 days from the date of receipt of order dated 5.7.2000. The reply of 5th respondent is that by invoking the inherent power and also that the cause of action for filing the revision has arisen on account of definite recommendations being made on the application filed by M/s. Hanuman Granites and M/s. Bharath Granites. Therefore, the revision petition is maintainable. It is not disputed at bar that the 2nd respondent has power under Rule 35-C of the Rules to condone the delay, if sufficient cause is shown for not filing the revision in time. The learned Judge through the order under appeal considered these circumstances referred to the decisions relied on by the parties and has held that in the revision filed by R5, application for condonation of delay is not filed and hence the occasion to consider sufficient cause has no application at all. Further the power of 2nd respondent to suo motu condone the delay is not accepted. We are since in agreement with these findings of learned Single Judge, we do not propose to refer to them in detail or decide a few ancillary contentions raised by Sri Ganta Rama Rao. 5. Sri Ganta Rama Rao contends that the 5th respondent filed revision before 2nd respondent. The 2nd respondent ought not to have entertained the revision, the revision if is not filed within 90 days from the receipt of order dated 5.7.2000. The 2nd respondent, if has returned the revision at the earliest point of time, the 5th respondent would have represented the revision with a petition for condoning the delay and the sufficient cause shown for condoning the delay would have been considered. The 2nd respondent, if has returned the revision at the earliest point of time, the 5th respondent would have represented the revision with a petition for condoning the delay and the sufficient cause shown for condoning the delay would have been considered. The numbering of revision had led the 5th respondent to believe that the revision filed questioning the order dated 5.7.2000 is in accordance with law, there is no infirmity in presentation and therefore, the submissions on merit were made and finally accepted by 2nd respondent. According to him, the order under appeal keeps the 5th respondent and the appellant, away from consideration for grant of mining lease for black granite in subject-matter. Thus when arbitrariness or discrimination in issuing NOC is patent on the face of the record, the earliest applicants are denied opportunity to question the arbitrary and discriminatory action of respondent. Though in law, the 5th respondent, and in view of the transfer, the appellant herein are entitled for preferential consideration, the outcome of writ petition keeps them away from consideration. The reason for rejecting the application is that the land is unavailable for considering the quarry lease as it is part of forest area. The foundation for rejection since is removed by the subsequent orders of Tahsildar, while considering the applications of M/s. Hanuman Granites etc., the 5th respondent or appellant is entitled for consideration of application dated 29.12.1998 in accordance with the extant rules. Therefore, he finally contends that the learned Single Judge ought to have directed the 2nd respondent to return the revision filed by the 5th respondent and afford opportunity to re-submit the revision alongwith a prayer for condonation of delay under Rule 35-C of the Rules and thus kept the statutory remedy of revision intact. 6. Sri Venkat Reddy submits that the appeal is not tenable either in law or on facts. The appellant being a transferee pendente lite is not entitled to canvass or contend more than what the 5th respondent failed to contest against the order of 2nd respondent dated 9.1.2008. According to him, on account of subsequent orders, the prayer in the W.A. is rendered completely ineffective. He makes the said contention on the premise that the subsequent orders have over shadowed the effect of order under appeal. 7. According to him, on account of subsequent orders, the prayer in the W.A. is rendered completely ineffective. He makes the said contention on the premise that the subsequent orders have over shadowed the effect of order under appeal. 7. Sri Rama Rao by way of reply submits that either the appellant or the 5th respondent is prevented from sustaining the orders in their favour having regard to order under appeal inasmuch as the order under appeal effectively removes the foundation on which the case of appellant for grant of mining lease was considered by 2nd respondent. Sri Rama Rao further submits that the appellant has spent huge amounts in preparing the subject-matter for quarry operations and fitness of things, the issue is re-examined from the stage of filing revision alongwith an application for condonation of delay as on the date of filing in the year 2007. 8. We have referred to the submissions and as already noted, we are of the view that the findings in WP No. 4169 of 2008 to the extent of holding that entertaining revision without condonation of delay by 2nd respondent is illegal and amounts to exercising jurisdiction not in the manner conferred by the Rules. Rule 35-A of the Rules provides for revision under two circumstances, namely, suo motu or on application filed by the aggrieved party. In the case on hand, the revisional jurisdiction is entertained on application filed by an aggrieved party. The chronology referred to above abundantly makes things very clear that the revision is filed beyond 90 days. Therefore, the 2nd respondent ought not to have entertained the revision much less decided the case on merits at the first instance. The order under appeal, if is allowed to remain, the case of appellant who claims through 5th respondent, is completely eliminated from consideration when a grievance on erroneous information the application was rejection is canvassed. On the other hand, while upholding the order under appeal and liberty if is granted to appellant to re-submit the revision filed by appellant/5th respondent with an application to condone the delay in filing the revision, the ends of justice are met and the 2nd respondent would have opportunity to exercise its jurisdiction or discretion in accordance with law. 9. On the other hand, while upholding the order under appeal and liberty if is granted to appellant to re-submit the revision filed by appellant/5th respondent with an application to condone the delay in filing the revision, the ends of justice are met and the 2nd respondent would have opportunity to exercise its jurisdiction or discretion in accordance with law. 9. Therefore, for the above reasons, we are of the view that the appellant and/or 5th respondent can be given liberty to resubmit the revision with a petition to condone the delay in filing the revision against the order dated 5.7.2000 by enclosing a copy of this order within six weeks from today. The appellant and/or 5th respondent is directed to implead M/s. Sakku Granites, 1st respondent herein as one of the parties in the revision filed as per this order. The orders in WP Nos. 24594 of 2014 and 43678 of 2017 are ancillary and incidental to the earlier orders of this Court or 2nd respondent hence do not stand, as the issue of consideration of revision is directed to be re-examined by the 2nd respondent in the revision filed by appellant. Memo No. 906/R4-1/2014 dated 27.6.2014 and Proceedings No. 20960/R5-1/2017 dated 1.12.2017 of 3rd respondent are set-aside. 10. We clarify that the issue in law and on fact arising in this case is completely left open for consideration by the 2nd respondent. Therefore, the parties are given liberty to take pleas available in law and on fact in support of their respective cases before the 2nd respondent. The 2nd respondent considers disposing of the revision re-presented in terms of this order, as expeditiously as possible, after giving notice to all the contesting parties preferably within three months from the date of filing or re-presenting revision. The W.A. and the W.Ps., are ordered accordingly. No order as to costs. 11. As a sequel thereto, miscellaneous petitions, if any, pending stand closed.