WA/1800/2008 of G.Pattabiramaiah AND Co. Steamer Agents AND Stevedores, Vs The Government of Andhra Pradesh, rep. by Director of on 29 December 2008

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

MONDAY, THE TWENTY NINETH DAY OF DECEMBERTWO THOUSAND AND EIGHT

PRESENT

THE HON'BLE MR JUSTICE D.S.R.VARMAand THE HON'BLE MR JUSTICE G.CHANDRAIAH

WRIT APPEAL NO : 1800 of 2008ANDWRIT PETITION NO : 27547 of 2008

(Writ Appeal under Clause 15 of the Letters Patent against the Orderdated 18/12/2008 in WP NO : 27547 OF 2008 on the file of the High Court.)

WRIT APPEAL NO : 1800 of 2008

Between:

G.Pattabiramaiah & Co. Steamer Agents & Stevedores, D.No.16-23,C-4/1, Pallamraju Nagar, Street No.3, Kakinada, East Godavari District, Rep. by its Partner Sri. G.VenkataKanaka Srirama Murthy, S/o. Sri Ramayya garu, 61 years, Ramnivas, Naoroji Road,Visakhapatnam.

..... APPELLANT

AND

1 The Government of Andhra Pradesh, rep. by Director of Mines andGeology, Hyderabad.2 The Deputy Director of Mines and Geology, Kakinada.

.....RESPONDENT(S)

Counsel for the Appellant:MR.T.S.VENKATARAMANA

Counsel for the Respondent No.: GP FOR MINES AND GEOLOGY

WRIT PETITION NO : 27547 of 2008

Between:

G.Pattabiramaiah & Co. Steamer Agents & Stevedores, D.No.16-23,C-4/1, Pallamraju Nagar, Street No.3, Kakinada, East Godavari District, Rep. by its Partner Sri. G.VenkataKanaka Srirama Murthy, S/o. Sri Ramayya garu, 61 years, Ramnivas, Naoroji Road,Visakhapatnam.

AND

..... PETITIONER

1 The Government of Andhra Pradesh, rep. by Director of Mines andGeology, Hyderabad.

2 The Deputy Director of Mines and Geology, Kakinada.

.....RESPONDENT(S)

Petition under Article 226 of the constitution of India praying that inthe circumstances stated in the Affidavit filed herein the High Court will bepleased to to issue an appropriate writ order or direction more particularlyone in the nature of Writ of Mandamus declaring order passed by the 2ndrespondent Demand Notice No. 3708/Sand/2007-2, dated 13.12.2007and the consequential Proceedings No.6398/EG/AH/2008 dated22.11.2008 passedby 1st respondent in dismissing the appeal filed underRule 35 of the A.P.M.M.C. Rules 1966 as arbitrary, illegal, violative ofprinciples of natural justice, non-consideration of relevant materialavailable on record, violative of the Fundamental Rights guaranteed tothe petitioner under Articles 14 and 19 of the Constitution of India andconsequently set-a-side the same and pass such other order or orders.

Counsel for the Petitioner:MR.T.S.VENKATARAMANA

Counsel for the Respondent No.: GP FOR MINES AND GEOLOGY

The Court made the following :

THE HON’BLE SRI JUSTICE D.S.R.VARMAANDTHE HON’BLE SRI JUSTICE G.CHANDRAIAH

Writ Appeal No.1800 of 2008andWrit Petition No.27547 of 2008

Oral Common Judgment: (per D.S.R.Varma, J.)

Heard Sri T.S.Venkata Ramana, learned Counsel appearing forthe appellant and the learned Government Pleader for Mines andGeology, appearing for respondents 1 and 2.

2. With the consent of the learned Counsel, both the writappeal and the writ petition are being disposed of by this commonjudgment.

3. The writ appeal is directed against the order, dated 18-12-2008, in W.P.M.P.No.36091 of 2008 in W.P.No.27547 of2008, passed by a learned single Judge of this Court in granting interim stay of the order passed by respondent No.2 Demand NoticeNo.3708/Sand/2007-2, dated 13-12-2007, and the consequentialproceedings No.6398/EG/AH/2008, dated 22-11-2008, issued byrespondent No.1, subject to the condition that the petitioner deposits50 per cent of the amount demanded within a period of six weeksfrom the date of the order.

4. Whereas, the writ petition is filed seeking to issue a writ ofMandamus declaring the order passed by respondent No.2 DemandNotice No.3708/Sand/2007-2, dated 13-12-2007 and theconsequential proceedings No.6398/EG/AH/2008, dated 22-11-2008,passed by respondent No.1 in dismissing the appeal filed under Rule 35 of the A.P. Minor Mineral Concession Rules, 1966 (‘APMMCRules’, for short) as arbitrary and illegal; and consequently, to setaside the same.

5. The appellant in the writ appeal is the petitioner and therespondents are respondents in the writ petition.

6. For convenience, parties are referred to as per their array inthe writ petition.

7. The impugned order in the writ petition is – ProceedingsNo.6398/EG/AH/2008, dated 22-11-2008, issued by respondent No.1,whereby exercising the powers delegated under Rule 35 of theAPMMC Rules, the appeal filed by the petitioner-Company wasdismissed, and respondent No.2 and the Assistant Director of Minesand Geology, Rajahmundry were directed to take further action.

8. It is the contention of learned Counsel appearing for thepetitioner that the notice was served on the Company, but just oneday before. There was hardly any time to attend before thecompetent authority i.e., respondent No.1, who passed the impugnedorder in the writ petition.

9. However, the learned Government Pleader submits thateven as could be seen from the impugned order, twice i.e., on 19-4-2008 and 17-5-2008 notices were served on the petitioner,but he did not choose to appear the personal hearing on both theoccasions. Therefore, the ex parte orders were passed byrespondent No.1, which are impugned in the writ petition.

10. This is a question of fact, which has to be verified.

But, we are of the considered view that instead of verifying theveracity or otherwise of the statements made by learned Counselappearing for the petitioner as well as the averments made on behalfof the respondents, we feel it expedient to dispose of the matters,remitting the matter back to the competent authority i.e., respondentNo.1 to pass appropriate orders, on merits, after giving one moreopportunity as last chance to the petitioner.

11. We are further of the view that it is always expedient todecide such matters on merits. There may be occasional failures onthe part of the parties like the petitioner. But, still, the competentauthority has to afford some reasonable time to the petitioner topresent his case, either in person or through his authorizedrepresentative.

12. Further, we are of the view that because of the orderspassed ex parte, the petitioner had lost the chance of availing otherremedies like filing a revision, as stated by the learned GovernmentPleader. Regardless of all these legalities, we are of the view that itis desirable that the matter be disposed of by respondent No.1, onmerits, instead of passing an ex parte order.

13. Therefore, having regard to the facts and circumstances,we direct respondent No.1 to issue fresh notice to the petitioner at theearliest and upon such notice, the petitioner shall appear in person orthrough his authorized representative before respondent No.1 andupon such appearance and hearing, final orders be passed byrespondent No.1, on merits.

14. We are of the further view that the interim order, dated 18-12-2008, in W.P.M.P.No.36091 of 2008 in W.P.No.27547 of 2008,passed by the learned single Judge may not be relevant in view of theabove order and accordingly, the impugned order in the writ appealpassed by the learned single Judge is set aside.

15. Consequently, the writ appeal is liable to be allowed andthe matter is remanded to respondent No.1 for fresh disposal, asdirected above.

16. We make it clear that in the fresh notice that may beissued to the petitioner by respondent No.1, the date may be fixed forobjection after informing the petitioner through a letter, by RegisteredPost with Acknowledgment Due, in order to ensure service on thepetitioner and to avoid any future complication. In the event of failure of the petitioner to appear before respondent No.1 on the date fixedfor hearing, respondent No.1 is always at liberty to proceed inaccordance with law.

17. In view of the above said directions, nothing remains foradjudication in the writ petition and accordingly, the writ petition isliable to be closed.

18. In the result, the writ appeal is allowed, at the stage ofadmission, with the above observations and directions; and the writpetition is closed.

____________________

JUSTICE D.S.R.VARMA

29[th] December, 2008.Ak

____________________

JUSTICE G.CHANDRAIAH

To1.2.2 CD copies

Form-NIC-OGS/WA {KURR}

To1.2CCs to2.2CD copiesForm-NIC-OGS/WP{KURR}

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