WP/14395/2005 of D.R.Enterprises, Vs Govt of A.P., rep. by its Secretary, on 23 December 2005

Conclusion

1. The writ petitioner is a proprietary concern and it is represented by its ProprietorK.Dhananjay Reddy, s/o K.Radhakrishna Reddy. M/s.Pallava Granites IndustriesIndia Limited-4[th] respondent is a company registered under Companies Act and it isrepresented by its Managing Director K.Subba Reddy. K.Dhananjay Reddy andK.Subba Reddy are brothers. K.Subba Reddy is the pattadar of Ac.2-33 cents inS.No.60 (part) and Ac.2-63 cents in S.No.63/4 (part) of R.L.Puram village,Chimakurthy Mandal, Prakasam District.

2. The petitioner obtained lease of surface rights to an extent of Ac.4-96 centscomprising in S.Nos.60 (part) and 63/4 (part) from the pattadar. The Director ofMines and Geology, Ongole by his proceedings No.18457/R3(2)/1996, dated3.12.1996 granted quarry lease for a period of 15 years from 21.12.1996 whichwould expire by 20-12-2011. The petitioner agreed to transfer the quarry lease infavour of 4[th] respondent and accordingly necessary affidavits as well as transferapplication in the prescribed format i.e. Model Form – R were filed complying withthe requirements under A.P. Minor Mineral Concession Rules, 1966 (for short Rules)on 6.11.2001. The petitioner filed affidavit/application on 6.10.2003 informing therespondents his intention to withdraw the transfer application filed on 6.11.2001.Thereafter the petitioner submitted another letter dated 7.11.2003 withdrawing theaffidavit/application dated 6.10.2003. The Assistant Geologist inspected the site on29.1.2004 and 2[nd] respondent submitted his report with regard to functioning of thequarry. 2[nd] respondent considered the transfer of quarry lease application, notarizedaffidavits of the petitioner and the 4th respondent dated 6.11.2001, and the report of3[rd] respondent and issued proceedings dated 17.2.2004 permitting the petitioner totransfer the quarry lease in favour of 4[th] respondent. The relevant portion of theproceedings reads as under:

“ The Asst. Director of Mines and Geology, Ongole further reported that thearea has been inspected by Assistant Geologist on 29.1.2004. Asper the inspection report, the quarry is being working systematicallywith machinery like excavators, compressors, tippers, generator,area has been inspected by Assistant Geologist on 29.1.2004. Asper the inspection report, the quarry is being working systematicallywith machinery like excavators, compressors, tippers, generator, wagon drill, jackhammers etc. leaving aside a stock 246.535 Cub.Mts of various sizes of blocks and made separate provision inadjacent patta land for stocking of generated waste from quarrying.Finally the Assistant director of Mines and Geology, Ongole hasrecommended for consideration of transfer of Quarry Lease held byM/s.D.R.Granites over an extent of 4.96 Acres in S.Nos.60(P) (2.33acres) and 63/4 (2.63 acres) of R.L.Puram village, ChimakurthyMandal, Prakasam District in favour of M/s.Pallava GraniteIndustries India Limited for the unexpired period of the quarry leasei.e., upto 20-12-2011 under Rule 12(5)(h)(viii) of Andhra PradeshMinor Mineral Concession Rules, 1966 and Granite Conservationand Development Rules, 1999.

M/s.D.R.Granites (Transferor) and M/s.Pallava Granite Industries IndiaLimited (Transferee) have furnished Mineral Revenue ClearanceCertificate and the same is valid upto 31.3.2004.Limited (Transferee) have furnished Mineral Revenue ClearanceCertificate and the same is valid upto 31.3.2004.

In view of the above circumstances, M/s.D.R.Granites is hereby permitted totransfer the Quarry Lease held by them for Black Granite over anextent of 4.96 Acres in S.Nos.60(P) (2.33 Acres) and 63/4 (2.63Acres) of R.L.Puram Village, Chimakurthy Mandal, PrakasamDistrict in favour of M/s.Pallava Granites Industries India Limited forthe unexpired period of the quarry lease i.e. upto 20-12-2011 underRule 12(5)(h)(viii) of Andhra Pradesh Minor Mineral ConcessionRules, 1966 and Granite Conservation and Development Rules,1999.”transfer the Quarry Lease held by them for Black Granite over anextent of 4.96 Acres in S.Nos.60(P) (2.33 Acres) and 63/4 (2.63Acres) of R.L.Puram Village, Chimakurthy Mandal, PrakasamDistrict in favour of M/s.Pallava Granites Industries India Limited forthe unexpired period of the quarry lease i.e. upto 20-12-2011 underRule 12(5)(h)(viii) of Andhra Pradesh Minor Mineral ConcessionRules, 1966 and Granite Conservation and Development Rules,1999.”

The petitioner challenged the proceedings of the 2[nd] respondent by filingW.P.No.4262 2004. It was contended in the said writ petition that he never withdrewthe application-dated 6.10.2003. This court, on considering the rival contentions,recorded a finding that the petitioner indeed filed a letter dated 7.11.2003withdrawing his withdrawal application dated 6.10.2003. It is apposite to refer therelevant portion of the order passed in the said writ petition and it is thus:

“ …In the light of such abundant material available on record, it is not opento the petitioner to deny submission of such a letter dated7.11.2003. In fact, the conduct of the proprietor of the petitionerconcern also does not inspire confidence to accept what he hasstated in the affidavit is true. In fact, as per the original application,he has even received a sum of Rs.5,00,000/- from thirdrespondent, which is said to have been incurred by him towardsobtaining the lease rights and investment made for thedevelopment of the mine. It is not open to the petitioner to go back and contend that third respondent failed to comply with certain ofthe conditions, and therefore, sought to withdraw the transferapplication. In any case, a there is a clear material available onrecord to show that the original transfer application filed along withthe required affidavits by both the petitioner and third respondent,seeking to transfer the mining lease, were pending beforerespondents 1 and 2 for passing appropriate orders, though thepetitioner claims that the said application was withdrawn by anaffidavit/application dated 6.10.2003, but in view of the findingrecorded earlier that the said application/affidavit dated 6.10.2003was withdrawn by letter dated 7.11.2003. Thereafter, there was nohurdle before the official respondents to process and passappropriate orders on the transfer application. First respondent,having satisfied as to the compliance of the rules and consideringthe report of second respondent passed the impugned order. merenon-reference to the letters dated 6.10.2003 and 7.11.2003 by firstrespondent is not material, as a reference to those letters is verymuch available in the proceedings of second respondent, basingon which the impugned orders were issued by first respondent.The impugned order of first respondent does not suffer from anyillegalities or irregularities, and therefore, does not call for anyinterference by this Court. No other ground is neither raised, norargued. The interim order of status quo stands vacated.

The writ petition is accordingly dismissed. But in thecircumstances, no costs.”

The writ petition is accordingly dismissed. But in thecircumstances, no costs.”

After disposal of the said writ petition, 3[rd] respondent issued proceedings dated13.7.2004 directing the petitioner to attend his office within 7 days from the date ofreceipt of the letter for execution of transfer lease deed. It was indicated in the letterthat in case of the petitioner failing to appear for execution of transfer deed, the samewould be executed in his absence in favour of the transferee. The petitionerchallenged the proceedings of 3[rd] respondent dated 13.7.2004 by filing a revisionbefore the 1[st] respondent. The revision filed by him ended in dismissal on 7.5.2005.The relevant portion of the order passed in the revision reads as follows:

“ 15. It is further observed that when agreed to transfer the lease andby filing Form ‘R’ which is a statutory form for transfer of lease; andwhen all the requirements were fulfilled in this regard, the Director ofMines and Geology, Hyderabad had issued transfer proceedings,which are strictly in accordance with Rule 12(5)(h)(viii) of APMMC

Rules, 1966. These transfer proceedings were also upheld by theHonourable High Court of A.P. Hence, it is obligatory on the part ofthe transferor to transfer the quarry lease.

16.

17. In view of the said order of the Hon’ble High Court upholdingthe quarry lease transfer order of the authorities, since thepetitioner herein did not turn up for execution of the transfer oflease deed, the Assistant Director of Mines and Geology,Ongole vide his Letter No.6260/Q/1996, dt.13.7.2004 requestedthe petitioner herein based on the directions of the Director ofMines and Geology, Hyderabad to attend his office within 7days from the date of receipt of the letter for execution of thetransfer lease deed, failing which the transfer lease deed willbe executed in the absence of the petitioner with the transferee.Hence, in view of what is observed in the foregoing paras,Government do not find any merits on the arguments ofM/s.D.R.Enterprises and also do not find any valid reasons tointerfere with the letter issued by the Assistant Director of Minesand Geology, Ongole vide No.6260/Q/1996, dt.13.7.2004.Therefore, Government hereby dismiss the RevisionApplication filed by Sri.K.Dhananjay Reddy, Prop: M/sD.R.Enterprises, Government also hereby accord extension oftime for 30 days for execution of transfer lease deed.

The Director of Mines and Geology is requested to take furthernecessary action in the matter, accordingly.”

After dismissal of the revision, the 3[rd] respondent- Assistant Director of Mines andGeology issued proceedings dated 25.5.2005 informing the petitioner of the transferof quarry lease in favour of 4th respondent on 25.5.2005. The relevant portion of theproceedings needs to be noted and it is thus:

“ Since the Government has dismissed the revision application filed byM/s.D.R.Enterprises against the letter issued by this office videreference 5[th] cited and hence the transfer of Quarry Lease deed hasbeen executed on 25.5.2005 with the transferee. The lessee firm ishereby permitted to continue the quarrying operations for BlackGranite in the above said quarry leased area for the un-expiredportion of lease period i.e., upto 20-12-2001 duly observing theconditions of the quarry lease deed in Form G with conditionsimposed by the Director of Mines and Geology, Hyderabad in theproceedings 1[st] cited and also Appendix enclosed herewith theproceedings and also subject to the conditions that the quarryM/s.D.R.Enterprises against the letter issued by this office videreference 5[th] cited and hence the transfer of Quarry Lease deed hasbeen executed on 25.5.2005 with the transferee. The lessee firm ishereby permitted to continue the quarrying operations for BlackGranite in the above said quarry leased area for the un-expiredportion of lease period i.e., upto 20-12-2001 duly observing theconditions of the quarry lease deed in Form G with conditionsimposed by the Director of Mines and Geology, Hyderabad in theproceedings 1[st] cited and also Appendix enclosed herewith theproceedings and also subject to the conditions that the quarry operations should not hamper the conditions of N.S.P. Canal ifpassing nearby.The lessee should submit quarterly returns in Form Fand annual return in Form g to the Director of Mines and Geology,Hyderabad, Deputy Director of Mines and Geology, guntur and to theAssistant Director of Mines and Geology, Ongole as required underrule 41 of Granite Conservation and Development Rules, 1999. Theyshould send report in form I to the Chief Inspector of Mines andSafety, Dhanbad and to the Assistant Director of Mines and Geology,Ongole as required under rule 30 of the Andhra Pradesh MinorMineral Concession Rules, 1966. The lessee should produce all theaccounts and registers pertaining to the quarry lease in the first weekof April every year. The lessee firm should erect and maintain at theirown expenses boundary pillars of substantial material standing notless than one meter over the surface of the ground at each corner (or)angle in the line of the area leased out. Further lessee should notcarry on quarrying operations within a distance of 50 mts. From anypublic road or tank or canal.

The lessee should obtain dispatch permits and get the way billsstamped by the Assistant Director of Mines and Geology, Ongole“Royalty paid” before transporting the mineral from the leased area.Further, the lessee should transport the raw blocks of Grnaite dulyremitting the rates of Seigniorage fee fixed by the Government andthe executive instructions issued from time to time on the subject.”

Challenge has been made in the present writ petition with regard to the proceedingsissued by the Director of Mines and Geology under letter dated 13.7.2004, orderpassed by the revisional authority vide Memo.No.9694/M21/2004-7, dated21.7.2005 and the proceedings dated 29.5.2005 of the Assistant Director, Mines andGeology, Ongole.

3. The grounds urged by the writ petitioner in the writ affidavit are;

firstly, the revisional authority has not considered various issues raised by thepetitioner and simply carried away on certain findings recorded by this Court inW.P.No.4262 of 2004, secondly; the Assistant Director, Mines and Geologyexecuted transfer lease deed in favour of 4[th] respondent even before communicationof the orders passed by the revisional authority to the petitioner, thirdly; 3[rd]respondent is not competent to execute transfer lease deed in favour of 4[th]

respondent- transferee without the consent of the petitioner and fourthly; theexecution of the transfer lease deed in favour of 4[th] respondent is contrary to theearlier practice followed by them.

4. Respondents 3 and 4 filed counter affidavits. It is stated in the counter affidavit ofthird respondent that transfer lease deed has been executed in pursuance of theapplication submitted by the petitioner and 4[th] respondent in the prescribed formati.e. Model Form-R as provided under Rule 12(5)(h)(viii). It is suffice to refer para 6 ofthe counter affidavit and it is thus:

“ 6. In reply to para Nos.7 to 10 of the affidavit, it is respectfullysubmitted that after hearing the arguments on both the parties theGovernment vide Memo.No.9694/M.II(1)/2004-7, dated 21.5.2005 hasdismissed the revision application filed by M/s.D.R.Enterprises statingthat the Government don’t find any valid reasons to interfere with theletter issued by the Asst.Director of Mines and Geology, Ongole videLetter No.6260/Q/1996, dt.13.7.2004 based on the directions of theDirector of Mines and Geology, Hyderabad. While disposing therevision application of the petitioner the Government has observedthat the petitioner has filed an application in Form-R which is astatutory form for transfer of lease and the Director of Mines andGeology, Hyderabad has issued transfer proceedings which arestrictly in accordance with Rule 12(5)(h)(viii) of A.P. Minor MineralConcession, Rules, 1966. The transfer proceedings were also upheldby the Hon’ble High Court of Andhra Pradesh, Hyderabad through itsjudgment dt.30.4.2004 in W.P.No.4262 of 2004. Hence, it is obligatoryon the part of the transferor to transfer the quarry lease. TheGovernment has also accorded extension of time for 30 days forexecution of transfer of quarry lease deed. The Director of Mines andGeology, Hyderabad vide Memo.No.5817/R3(2)/2004, dt.24.5.2005has furnished a copy of the above Government memo and requestedto take necessary action. Accordingly this office has executed thetransfer of quarry lease deed with the transferee on 25.5.2005 andwork orders were issued vide Proc.No.6260/Q/1996, dt.25.5.2005 forthe unexpired portion of lease period i.e., upto 20-12-2011. Thecontention of the petitioner that the government order dt.21.5.2005 isarbitrary, illegal are not correct, since the Hon’ble High Court ofAndhra Pradesh has upheld the transfer proceedings of the Director ofMines and Geology, Hyderabad and said order of the court becamefinal and binding on both the parties.”

5. It is stated in the counter affidavit of 4[th] respondent that an application for transferof quarry lease in favour of 4[th] respondent has been submitted by the petitioner on6.11.2001 as per the understanding reached between them and accordinglydepartment transferred the quarry lease in favour of the company. Para 10 of thecounter affidavit needs to be noted and it is thus:

“ 10. In reply to para-9, it is submitted that respondent executed a lease deedin Form-G on 25.5.2005 and sanction proceedings were alsoissued by the Assistant Director of Mines and Geology byproceedings dt.25.5.2005 quarry is in continuous operation by thisrespondent alone, after payment of seignior age fee to theGovernment and obtaining the permits. The writ petitioner has notcome to this court with clean hands and has submitted in correctfacts, this writ petitioner has never operated the quarry and he haschosen the remedy under Art.226 for settlement of his familydisputes by blackmailing this respondent. The transfer orderbecomes final by judgment dt.30.4.2004 in W.P.No.4262 of 2004.The order of Director of Mines and Geology and Assistant Directorof Mines and Geology is only a consequential proceedings.Having received Rs.5,50,000/- paid by this respondent for transfersubmitted transfer application now he cannot come forward that heis not intending to execute the lease deed. The quarry lease istransfer is sub soil rights for which writ petitioner has no right noteven the surface rights. The sub soil rights can be granted andtransferred only by the Government. The orders of transfer ispassed strictly in terms of rules and lease deed also is executed asper rules. Writ petition is questioning the consequentialproceedings when the original proceedings are upheld is notmaintainable in correct facts are stated for the purpose of interimorder, wherein an interim order is passed suspending theproceedings under the impression that the lease still stands infavour of writ petition which is absolutely incorrect. The veryproceeding under challenge is dt.25.5.2005 which is the workorder in favour of this respondent.”

6. Heard Sri.D.Prakash Reddy, learned Senior counsel appearing for the petitioner,learned Government Pleader appearing for Mines and Geology for respondents 1 to3 and learned counsel appearing for 4thr respondent company.

7. Learned senior counsel appearing for the petitioner submits that since thepetitioner is not inclined to transfer the quarry lease in favour of 4[th] respondent, 3[rd]respondent is not competent to transfer quary lease and more so against the wishesof the petitioner. He further submits that 4[th] respondent has to work out his remedyelsewhere since the petitioner has specifically indicated of his intention not totransfer quarry lease in his favour. He also refers to various provisions of the Rules.Further submission has been made that there is no prescribed form for transfer ofquarry lease under Rules and therefore it is for the 4[th] respondent to get a generalconveyance deed taking recourse to the common law remedy.

8. Learned counsel appearing for 4[th] respondent submits that since consent letterdated 6.11.2001 for transfer of quarry lease in favour of 4[th] respondent has beenupheld in the earlier proceedings, the petitioner cannot be permitted to raise anyobjection with regard to transfer of quarry lease and in the circumstances, 3[rd]respondent is justified in transferring quarry lease in favour of 4[th] respondent.

9. The scope and extent of power of the judicial review of the High Court containedin Article 226 of the Constitution of India would vary from case to case, the nature ofthe order, the relevant statute as also the other relevant factors including the natureof power exercised by the public authorities, namely, whether the power is statutory,quasi judicial or administrative. The power of judicial review is not intended toassume a supervisory role or done the robes of omnipresent. The power is notintended either to review governance under the rule of law nor do the courts stepinto the areas exclusively reserved by the supreme lex to the other organs of theState. Decisions and actions which do not have adjudicative disposition may notstrictly fall for consideration before a judicial review court. The limited scope ofjudicial review succinctly put are:

(I) Courts, while exercising the power of judicial review, do not sit in appealover the decisions of administrative bodies;over the decisions of administrative bodies;

(II) A petition for a judicial review would lie only on certain well-definedgrounds.

(III) An order passed by an administrative authority exercising discretionvested in it, cannot be interfered in judicial review unless it is shown thatexercise of discretion itself is perverse or illegal.

(IV) A mere wrong decision without anything more is not enough to attract thepower of judicial review; the supervisory jurisdiction conferred on a court islimited to seeing that tribunal functions within the limits of its authority and thatits decisions do not occasion miscarriage of justice.

(V) The courts cannot be called upon to undertake the government duties andfunctions. The court shall not ordinarily interfere with a policy decision of theState. Social and economic belief of a judge should not be invoked as asubstitute for the judgment of the legislative bodies.

10. A fact is required to be noted that the proprietor of the petitioner concern and theManaging Director of 4[th] respondent –Company are no other than own brothers.Undisputedly the Managing Director of 4[th] respondent-company is pattadar of theland admeasuring Ac.4-96 cents comprising in s.Nos.60 9part) and 63/4 (part). Thepetitioner took the surface rights of lease from the pattadar. Thereafter heapproached the Assistant Director of Mines and Geology for grant of quarry lease forblack granite. The Deputy Director of Mines and Geology granted quarry lease infavour of the petitioner and executed a lease deed on 21.12.1991. The period oflease came to be extended for a further period of 15 years. Renewal lease is from21.12.1996 to 20-12-2011. The petitioner submitted transfer application on6.11.2001 in the prescribed form i.e. Form-R. He withdrew the transfer application on6.10.2003. Subsequently he submitted a letter dated 7.10.2003 withdrawing hisaffidavit/application dated 6.10.2003. However, this is the subject matter of theearlier writ petition. The petitioner questioned the proceedings of the Director ofMiens and Geology whereby and whereunder permission has been accorded totransfer quarry lease in favour of 4[th] respondent-company. The said writ petitionbeing W.P.No.4262 of 2004 ended in dismissal. Therefore, it can be said withoutany controversy that Form R submitted by the petitioner seeking transfer of quarrylease in favour of 4[th] respondent-company holds good. Further proceedings havebeen taken by the department of Mines and Geology to transfer the lease in favour of4[th] respondent-company basing on the said Form-R.

petitioner that mere filing of Form R is not sufficient and that regular conveyancedeed is required to be executed by the petitioner and since the petitioner is notinclined, the Department cannot execute transfer lease deed on behalf of thepetitioner in the name of 4[th] respondent-company.

12. At this juncture, Rule 12(5)(h)(viii) is required to be noted and it is thus:

“ (viii) The licensee or lessee shall not assign, sub-let, transfer orotherwise dispose of the under licence or lease without obtaining theprevious sanction in writing of the Director. The transfer applicationshall be made to the Assistant Director of the District concerned inForm R along with non-refundable application fee of Rs.5,000/-(Rupees Five Thousand only). The licence or lease deed shall beexecuted as per the provision under clause (e):

Provided that such sanction shall be accorded that there is nospeculation involved in the transfer of licence or lease:

Provided further that the transferor and the transferee shall not be inarrears of any mineral revenue to the Government.”

Once an application has been submitted by the transferor and the departmentaccepts the same, it is for the Department to transfer the quarry lease since the sub-soil rights of the land vests with the Department. In view of the chequered career ofthe case, and since the proceedings issued by the Director of Mines and Geologyaccording permission to transfer quarry lease in favour of 4[th] respondent-companybeing upheld in the earlier round of litigation, I do not see any flaw in issuing theproceedings impugned in the writ petition by the Department.

13. For the foregoing reasons, this writ petition fails and the same is herebydismissed. No costs.

Dated: 23-12-2005. (B.Seshasayana Reddy,J)

THE HONOURABLE SRI JUSTICEB.SESHASAYANA REDDY