Andhra Pradesh High Court - Amravati
M/S M S P Granites vs The State Of Andhra Pradesh, on 14 December, 2020
Author: Kongara Vijaya Lakshmi
Bench: Kongara Vijaya Lakshmi
HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI
WRIT PETITION No.15342 of 2020
ORDER:
This writ petition is filed questioning the action of the 3rd respondent in not issuing dispatch permits for transportation of material excavated from the leased area of petitioner over an extent of 4.517 Hects in Survey No.71 of Lingalavalasa Village, Tekkali Mandal, Srikakulam District, pursuant to lease deed executed by the 3rd respondent vide Proceedings No.1805/Q/2012, dated 12.06.2015, in spite of holding all permissions and valid lease period upto 13.02.2034.
2. The case of the petitioner is that the 3rd respondent issued a show cause notice, dated 09.03.2020 basing on faulty and erroneous survey report in the month of February, 2020. Petitioner submitted a representation requesting for resurvey and re- verification. But the 2nd respondent rejected the same on 22.06.2020. Aggrieved by the same, the petitioner filed W.P.No.11549 of 2020 and an interim direction is granted by this court on 15.07.2020, which reads as follows:
"The central question which is in dispute is whether the various pits taken into account in the survey in the month of February, 2020 are within the quarry area of the petitioner or not and whether the dimensions of the pits falling in the lease area of the petitioner have been properly measured. The question can be answered only upon a proper survey being done 2 in the presence of both the Department officials and the petitioner or his representatives and after such demarcation the actual quantity is recalculated.
To enable a proper adjudication in the matter, it would be appropriate to direct the respondent Nos.2 and 3 to take up a survey with the assistance of the necessary surveyor to demarcate the boundaries of the lease area of the petitioner and to measure the dimensions of the pits falling in the lease area of the petitioner and on the basis of such demarcation to recalculate the extent of the granite which is said to have been mined/quarried in the lease area of the petitioner."
Pursuant to the said direction, the 2nd respondent, vide Memo, dated 23.07.2020, nominated a team to conduct re-survey and the said team submitted their report to the 2nd respondent. While so, the 2nd respondent issued Memo, dated 20.08.2020, to attend the survey and inspection to be conducted by new team as the survey team which was constituted on 23.07.2020 have not done the survey properly and has not taken the original contour levels and reclamation of the quarry. A similar notice was issued by the 3rd respondent on 20.08.2020. The petitioner submitted a representation to the respondents on 21.08.2020 requesting to defer the so called proposed re-survey by the new team. Challenging the said action, the petitioner filed W.P.No.14855 of 2020 and this court by order, dated 24.08.2020, passed the following order:
"This writ petition is filed seeking to declare the action of respondent No.2 in ordering for re-survey and issuing proceedings vide Memo No. 3430252/D1-2/2020 dated 3 20.08.2020 and 21.08.2020 in the quarry area belonging to the petitioner in survey No. 71, Lingavalasa Village, Tekkali Mandal, Srikakulam District, as illegal and contrary to the orders dated 15.07.2020 in W.P.No.11549 of 2020 and consequently to set aside the Memo No. 3430252/D1-2/2020 dated 20.08.2020 and 21.08.2020 issued by respondent No. 2 and consequential notice dated 20-08-2020 issued by respondent No.3.
Heard.
Learned counsel for the petitioner submits that by virtue of interim order dated 15-07-2020 in W.P.No. 11549 of 2020, this Court directed a survey to be conducted by respondent Nos. 2 and 3 therein with the assistance of surveyor to demarcate the boundaries of the lease area of the petitioner. In compliance with the said order, the respondents have conducted survey and report is also submitted. While things stood thus, the respondents now propose to conduct another survey by virtue of the proceedings dated 20-08-2020.
Learned Government Pleader submits that having found variations between the survey report dated 31-07-2020 and the earlier survey report, the respondents thought it fit to conduct another survey in order to get clarity with regard to the said variations.
Learned counsel for the petitioner at this stage seeks this Court to direct the respondents to go on with the survey proposed by virtue of the proceedings dated 20-08-2020 but in the presence of learned counsel for the petitioner and experts from Geological Survey of India.
Hence, in view of the above submissions and the circumstances of the case, the writ petition is allowed and respondent Nos. 2 and 3 are directed to conduct the survey proposed by virtue of the proceedings dated 20-08-2020 in the presence of learned counsel for the petitioner and experts from Geological Survey of India. Till then, the respondents shall not 4 proceed with the survey proposed by virtue of the impugned proceedings. Pending miscellaneous applications, if any, shall stand closed in consequence."
In view of the said order, the respondents have no jurisdiction or authority to conduct survey and inspection on their own except with the assistance of the Survey of India, Government of India and the 2nd respondent has to take steps accordingly. While so, the petitioner has applied for dispatch permits on 20.08.2020 and the 3rd respondent has no authority to refuse dispatch permits as long as the lease period subsists in accordance with Rule 34 of the Andhra Pradesh Minor Mineral Concession Rules, 1966 (for short, "the Rules") and as on today, no demand notice is operating against the petitioner. Questioning the action of the 3rd respondent in not issuing dispatch permits, the present writ petition is filed.
3. Counter affidavit is filed by the respondents stating inter alia that the petitioner has uploaded the production of 37 Granite blocks in the online E-permit system on 02.09.2020 and 04.09.2020. As per the report submitted by the technical staff of the 3rd respondent, the petitioner has committed breaches in quarry operations in violation of Rules 19 and 22 of GCDR, 1999 and Reg.34(7)(a) of MMR, 1961 and Reg.182A and B MMR, 1961 and that the 3rd respondent submitted proposals to determine the lease of the petitioner and subsequently, the 2nd respondent has issued 5 the show cause notice on 29.09.2020. But no reply has been given by the petitioner to the said show cause notice. The staff of the respondents have inspected the quarry lease on 02.09.2020 and found that the petitioner has developed quarry benches with average depth of 5.08 metres and further noticed that the petitioner is not operating the quarry as per the approved scheme of mining and violated the Rules 19 and 22 of GCDR 1999 and Reg.34(7)(a) of MMR, 1961. Subsequently, the lease of the petitioner was determined vide proceedings, dated 09.11.2020.
4. Learned counsel for the petitioner submits that the determination of the lease was subsequent to the filing of the writ petition and even if the lease is determined the petitioner is entitled for the dispatch permits for the mineral extracted from the quarry prior to the determination of the lease in accordance with Rule 37 (xix) of the Rules. Learned counsel also relies upon the interim order passed by this court in W.P.No.17519 of 2020, which reads as follows:
"Notice before admission.
Heard both sides.
Learned counsel for the petitioner stated that earlier, a show cause notice was issued by the Additional Director of Mines and Geology on 13.02.2020 seeking to cancel the petitioner's quarry lease, which was challenged in W.P.No.4993 of 2020. The same was disposed of on 28.02.2020 setting aside the show cause notice. Another show cause notice was issued by the Director of Mines and Geology (DMG-R2) on 19.03.2020 for 6 cancellation of the quarry lease, which was again challenged in W.P.No.8293 of 2020. On 29.04.2020, by issuing notice, this court directed the respondents not to take any coercive steps. The material on record shows that W.P.No.13676 of 2020 was filed by the petitioner challenging the show cause notice proceedings, dated 31.07.2020, issued by respondent No.2 calling upon him to pay the seigniorage fee and penalty and an interim order came to be passed on 11.08.2020 suspending the aforesaid proceedings. Again, respondent No.2 issued proceedings, dated 20.08.2020, canceling the lease of the petitioner. Challenging the same, W.P.No.15064 of 2020 was filed and the same was allowed on 28.08.2020. In similar circumstances, when Stop Production Order came to be issued by the A.P. Pollution Control Board, the petitioner therein filed W.P.No.11953 of 2020 wherein an interim order was passed on 22.07.2020 directing issuance of dispatch permits to the petitioner therein in respect of the mineral already excavated and lying over the subject area.
As the respondents herein are not issuing the dispatch permits to the petitioner in spite of the earlier orders, the same is being challenged in the present writ petition. In view of the orders passed earlier, respondent No.3 is directed to issue dispatch permit to the petitioner in respect of mineral already excavated and lying over the area admeasuring 3.093 Hectares in Sy.No.103/P of Konidena Village, Ballikuruva Mandal, Prakasam District."
5. The learned Government Pleader submits that W.P.No.23334 of 2020 is filed challenging the determination order and that this court disposed of the said writ petition observing thus:
"Having regard to the consensus expressed by the learned counsel for the petitioner, Sri N.Vijay, and the learned 7 Government Pleader for Mines & Geology, Sri K.Naveen Kumar, this Writ Petition is allowed, setting aside the impugned order, dated 09.11.2020, in D.Dis.Proc.No.3430252/D1-2/2020, and the matter is remanded to the Director of Mines & Geology, Ibrahimpatnam, Krishna District-second respondent herein for fresh consideration of the issue and for passing appropriate orders after hearing the petitioner herein. It is made clear that all the contentions are let open."
6. Rule 31(xix) of the Rules reads as follows:
"31(xix)-Any minor mineral extracted from the quarry and not removed by the lessee before the date of expiry of the determination of the lease or permit may be dispatched within 30 days or extended period granted by the Government from the date of such expiry or determination after paying dead rent and seigniorage fee and any other sums which may be due. If the lessee does not remove the extracted mineral from the leased area within the permitted and extended period mentioned above it shall be the property of the Government and the Assistant Director may sell it in public auction."
7. In view of the said Rule, even though the lease of the petitioner is determined, the petitioner is entitled for dispatch permits for the extent of the mineral extracted from the quarry and not removed by the lessee before the determination of the lease.
8. Even according to the counter affidavit, the petitioner has extracted the mineral to the extent which is shown in the application, which is filed for dispatch permits. 8
9. In view of the same, the respondents are directed to issue dispatch permits to the petitioner to the extent of the mineral for which he sought permission on 02.09.2020 and 04.09.2020, which is prior to the determination order, dated 09.11.2020.
10. The Writ Petition is disposed of accordingly. As a sequel, pending miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.
_______________________________________ JUSTICE KONGARA VIJAYA LAKSHMI December 14, 2020 LMV 9 HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI 5 WRIT PETITION No.15342 of 2020 December 14, 2020 LMV