WP/12588/2004 of S.Narayana Reddy, Vs The Govt. of A.P.,rep.by its Secty. Industries AND Commerce on 29 December 2004

O R D E R:

Heard Smt.N.Shobha, learned counsel appearing for the petitionerand the learned Government Pleader appearing on behalf of therespondents.

The petitioner herein, who has been granted a lease by the firstrespondent-Government in pursuance of the orders passed inG.O.Ms.No.326, Industries & Commerce (M.II) Department, dated19.06.2000, filed this writ petition inter alia, seeking a Mandamusdeclaring the action of the respondents in not executing the leasedeed in pursuance thereof, as illegal and for a further direction toexecute the same.

The case of the petitioner, in brief, is that in pursuance of anapplication filed by him on 30.09.1998, before the respondents forgrant of mining lease for quartz in Sy.Nos.210/7P, 210/8 and 210/9 toan extent of Ac.42.65 cents situated at Siddavaram Village, K.K.MetlaMandal of Prakasham District for a period of 20 years, the thirdrespondent-Assistant Director of Mines and Geology, issued a noticeto the petitioner on 16.11.1998 for the purpose of conductinginspection on 23.11.1998. Accordingly, the inspection was duly madeand survey was also conducted by the said authority on the sameday and the petitioner’s application was forwarded to the Mandal

Revenue Officer as per proceedings dated 30.09.1998 forclassification and also for issuance of no objection certificate.Following the same, the Mandal Revenue Officer, Konkanametla, hasissued a no objection certificate to an extent of Ac.34.77 cents.Thereafter, the petitioner’s application was recommended to thesecond respondent – Director of Mines and Geology, for grant ofmining lease, who in turn sent the same to the Government on13.05.1999. Following the same, the first respondent issued a memo-dated 17.12.1999 to the effect that the Government has proposed togrant mining lease for quartz subject to submission of approval frommining plan. Consequently, the mining plan was also approved afterdue enquiry by the Indian Bureau of Mines and Geology and thesame was submitted on 15.04.2000. Thus, ultimately, the firstrespondent has issued proceedings in G.O.Ms.No.326, Industries &Commerce (M.II) Department, dated 19.06.2000, granting lease for aperiod of 20 years. However, in spite of such orders, which werepassed by the first respondent granting mining lease, the lease deed,which normally should be executed within a period of six months,was not being followed up and no attempt has been made by theauthorities in this regard. It was also submitted that the competentauthority to execute the lease deed is the third respondent herein,who as per letter dated 08.08.2000, asked the petitioner to submitapproved mining plan with relevant stamp papers, affidavit in lieu ofMineral Clearance Certificate, Income Tax Clearance Certificate, anda deposit of Rs.10,000/- towards security. Accordingly, the petitionerhas complied with all the said formalities on 08.09.2000. However, inspite of such compliance, no deed is being executed. Since the initialperiod of six months was lapsing, the petitioner submitted anapplication to the first respondent on 06.01.2001 for extension of timeand the same was duly extended. The second respondent throughproceedings 04.06.2001, informed the petitioner to produce MineralRevenue Clearance Certificate before the third respondent. It issubmitted by the petitioner that having produced the certificatesearlier, there is no necessity to file the same once again. Thepetitioner had obtained the said certificate on 03.08.2001 and the same was submitted before the second respondent on 17.10.2001,but in spite of the same, no lease deed was executed in favour of thepetitioner. Surprisingly, the first respondent has issued proceedingsdated 07.03.2002 purported to be under Rule-26 of MineralConcession Rules, 1960 (for short “the Rules”), to the petitionercalling upon him to show-cause as to why the lease granted to himbe revoked due to mistake of fact i.e., when there is a priorapplication pending for the same area. It is submitted that the inactionon the part of the respondents is totally without any justification mushless, power and authority, as contemplated under the law. Further,especially in the absence of any challenge made by such otherapplicant, in regard to the orders issued in G.O.Ms.No.326, Industries& Commerce (M.II) Department, dated 19.06.2000, it is not open forthe first respondent to reopen the proceedings. Hence, the writpetition.

In the counter-affidavit filed on behalf of the respondents herein,it is contended that the proposed action is only in terms of the powersconferred under Rule 26(1) of Mineral Concession Rules, 1960. It isalso submitted that already an application is pending, which was filedby Sri Syed Raheem on 24.01.1998 itself i.e., much prior to the dateof the application of the petitioner, which was on 30.09.1998. Further,it was pointed out that in regard to the said application of SyedRaheem, a proposal was made by the second respondent on08.01.1999 to the Government for rejection, since he did not turn upfor survey and inspection, a show cause notice was issued to him on01.02.1999 for rejection of his application. However, it is pointed outthat even though such an application was pending, the same was notbrought to its notice, and therefore, the second respondent submitteda proposal for grant of mining lease. Further, the show-cause noticewas issued on 09.09.1999 to Syed Raheem, as to why hisapplication should not be rejected as he did not attend the inspection,to which the said Syed Raheem submitted a reply on 16-10-1999,with a request to provide him one more opportunity for inspection andsurvey, which was acceded to by the Government on 29-10-1999

giving him one more opportunity. There is no dispute with regard tothe fact that the petitioner in terms of notice dated 17-12-1999submitted the mining plan and ultimately the G.O.Ms.No.326,Industries & Commerce (M.II) Department, dated 19-06-2000 wasissued. It is only after the said factum of noticing the pendency ofanother application, the second respondent requested the firstrespondent on 22-12-2001 to revoke the lease granted in favour ofthe petitioner, therefore, the first respondent has issued a noticedated 07-03-2002 to the petitioner as to why the said lease shouldnot be revoked. In view of the same, it cannot be said that there isany illegality in the impugned proceedings and instead ofapproaching the first respondent, the petitioner has come up with thepresent writ petition. Further, it was also pointed out that havingregard to the pendency of one more application, the petitioner’s casecould not have been considered on its own. In the circumstances, itwas submitted that the petitioner cannot make any grievance and hecannot rely on a lease, which was the result of a mistake of fact, andthe same was being corrected by the first respondent.

The learned counsel Smt.N.Shobha, appearing on behalf of thepetitioner, strenuously contended that in the absence of a properchallenge by any such rival applicant though his application may beprior, cannot be reviewed or reconsidered or reopened at theinstance of the first respondent on its own and further it is alsopointed out that Rule 26(1) of the Rules, which was sought to berelied on by the first respondent, has no application and hence, theentire inaction on the part of the respondents is wholly unsustainable.

The learned Government pleader appearing for Mines andGeology sought to sustain the impugned action mainly on the groundthat the petitioner’s application could not have been processedwithout considering the application filed earlier by another applicant,which was pending and it is only due to certain lapses on the part ofthe respondents and further, it was not noticed at the time ofconsidering the petitioner’s application. Therefore, there is a clearmistake of fact, which is only being sought to be corrected.

Considering the submissions made and also on perusal of theentire material on record, the only question, which crops up forconsideration is as to why in the facts and circumstances the firstrespondent is entitled to revoke the lease granted in favour of thepetitioner on the ground of alleged mistake of fact.

There is no dispute to the aforesaid facts. As mentioned above,the petitioner’s application, which was filed on 30-09-1998 was dulyprocessed and after due survey, inspection and compliance of all therequirements, as sought for, at different times and ultimately, the firstrespondent has issued the aforesaid G.O.Ms.No.326, Industries &Commerce (M.II) Department, dated 19-06-2000, granting lease infavour of the petitioner herein. In spite of issuance of the lease, nofinal lease deed was being executed by the third respondent, thoughthe petitioner has already complied with all the requirements, assought for by the said authority subsequent to issuance of theaforesaid lease. The main defence as sought on behalf of therespondents is that it is only due to the fact that there was anapplication already pending consideration, which was filed by oneSyed Raheem, and the same having been brought to the noticethough at a later stage, the show-cause notice has been issued forrevocation of the lease, which was granted in favour of the petitioner.It is to be noticed that there cannot be much dispute as to theapplication filed by the said Syed Raheem on 24-01-1998. However,on the facts, as submitted by the respondents herein, the said SyedRaheem was not so serious in pursuing his application and therehave been lapses on his part. He did not attend the survey as per thenotice issued in pursuance of the application filed by him andtherefore, notices have been issued to him, on more than oneoccasion, as to why his application should not be rejected. It is only ata very belated stage and that too after a long lapse of time, the saidSyed Raheem, requested the authorities concerned to give one moreopportunity, which was acceded to and which ultimately hasrekindled the hopes of the said Syed Raheem, for considering hiscase for grant of lease and which also has given rise to the issuance of a notice to the petitioner herein for revocation of the lease, whichwas already granted. Admittedly, the said Syed Raheem did notmake any challenge with regard to the proceedings issuing the leasein favour of the petitioner in G.O.Ms.No.326, Industries & Commerce(M.II) Department, dated 19-06-2000. No attempt has been made topursue his application seriously at different points of times. Exceptstating that he wants one more opportunity, no other valid reason hasalso been pointed out seeking for providing such an opportunity.Admittedly, there are serious lapses and latches on the part of thesaid Syed Raheem. Be that as it may, the only source under whichthe notice has been issued to the petitioner for revocation of thelease granted to him is under Rule 56 of the Mineral ConcessionRules, 1960, which reads as follows:

“Power to rectify apparent mistakes:- Any clerical orarithmetical mistake in any order passed by the government or anyother authority or officer under these rules and any error arising thereinfrom accidental slip or omission may, within two years from the date ofthe order, be corrected by the government authority or officer, as thecase may be:

Provided that no order prejudicial to any person shall be passedunless he has been given a reasonable opportunity for stating hiscase.”

On a bare reading of the said Rule, which is quite apparent thatthe power conferred under the aforesaid Rule is not in any way akinto any appeal, revision or review as such. It is only an incidentalpower, which is conferred on the authorities to correct any clerical orarithmetical mistake in any order passed by the authority. It can alsobe treated on par with Section 152 of the Code of Civil Procedure andit is to be noticed that similar such Rule as found in Rule 16 of theLand Reforms (Ceiling on Agricultural Holdings

Act) 1973 has also come up for consideration. In a judgment of aDivision Bench of this Court, it is held that the scope of such provisionis very limited and cannot extend beyond its own prescription and it may not be converted into and sought for appeal, revision or reviewas held in AUTHORISED OFFICER LAND REFORMS TRIBUNAL,KAKINADA Vs. A.SREERAMACHANDRA PRABHU. In view of thesame, it is to be seen that advertently in this case, there is noproceedings initiated against the said Syed Raheem in any manner,as contemplated under law either by way of appeal, or revision, orreview and it is only the first respondent on suo motu powers there-under, sought to revoke the lease, which has been granted. As longas the orders of issuance of lease have not been challenged, it is tobe held that the said orders have become final, conclusive andbinding in view of absence of any such rival applicant irrespective ofthe fact that he is a prior applicant. However, it is also to be held thatin the facts of this case, the questions of invoking Rule 56 of theaforesaid Rules does not arise nor would it entail the first respondentto revocation also which is a quite serious one effecting thesubstantive rights of the parties. As long as there is no specific powerconferred in the statue, it is not open for the respondent authoritiesherein, to invoke such incidental power under Rule 56 of theaforesaid Rules.

In the circumstances, it is to be held that Rule 56 is notapplicable to the facts of the case nor confer any such power torevoke, having thus held and it is also to be noticed that there isabsolutely no other justifying reason on the part of the respondentsherein, to deny the execution of the lease deed, more so, it wasissued as long back as on 19-06-2000.

The writ petition is, accordingly, allowed as prayed for. Nocosts.

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Lrkm.

That Rule Nisi is made absolute as above.

Witness the Hon’ble Sri Devinder Gupta, the Chief Justice on this Wednesdaythe twenty ninth day of December two thousand and Four.

REGISTRAR

To

1. The Secretary, Government of A.P., Industries & Commerce Department, Secretariat, Hyderabad.

2. The Director of Mines & Geology, B.R.K.R.Buildings, 8th floor, Tank Bund Road, Hyderabad.

3. The Assistant Director, of Mines & Geology, Ongole, Prakasam District.

4. 2CCs to the Government Pleader for Industries and Commerce, High Court of A.P., High Court Buildings, Hyderabad.

5. 2CD copies.