Andhra Pradesh High Court - Amravati
Southern Rocks And Minerals Private ... vs The Government Of Andhra Pradesh, on 2 March, 2021
Author: D.Ramesh
Bench: D.Ramesh
THE HONOURABLE SRI JUSTICE D.RAMESH
WRIT PETITION NO.10457 OF 2020
ORDER:
Heard Sri T.Sreedhar, learned counsel for the petitioner and learned Government Pleader for Mines and Geology as well as the Additional Advocate General appearing for the respondents.
2. The writ petition is filed questioning the action of the 3rd respondent i.e., Assistant Director of Mines and Geology, in not granting dispatch permits (under Rule 34 of Andhra Pradesh Minor Mineral Concession Rules, 1966 [for short APMMC Rules, 1966]) for the Black Galaxy Granite produced from its quarry leased lands as arbitrary, illegal and discriminatory.
3. The petitioner is currently holding quarry lease over an extent of 5.82 acres (2.3555 hectares) in Survey Numbers 59/P, 60/P, 101/1P, 102/1P, 102/2P and 103/P of RL Puram Village of Cheemakurthy Mandal of Prakasam District.
4. The said lease was granted in favour of the petitioner vide proceedings of the 2nd respondent, dated 12.12.2008 and consequential work order was also issued by the 3rd respondent, vide proceedings dated 31.12.2008 for a period of 20 years, with effect from 21.12.2008 till 20.12.2028. In fact the lease was granted to Shyam Granites in 1993 and the same was transferred to the petitioner vide proceedings of the 2nd respondent, vide 2756/R.3(2)/2000 dated 09.11.2000 and the Proceedings No.3922/Q.1/1993 dated 20.11.2000, issued by the 3rd respondent. Subsequent to the transfer in favour of the petitioner, 2 the petitioner has got all the requisite permits for doing mining operations and 3rd respondent, who is competent authority, also given dispatch permits regularly for the mineral produced by the petitioner from its leased land.
5. Originally the petitioner is having a leased land over an extent of 2.000 hectares situated in survey No.988/2(P) of Cheemakurthy village of Cheemakurthy Mandal of Prakasam District and the petitioner was also granted Prospecting License over 0.223 hectares situated in Survey No.988/2(P) of Cheemakurthy Village of Cheemakurthy Mandal of Prakasam District. Subsequently both the said leases were clubbed into single lease vide 2nd respondent proceedings dated 30.06.2006 and consequential orders of the 2nd respondent, dated 22.07.2006.
6. Whenever the granite blocks are produced out of the mining operations, the petitioner measures, marks and number such blocks with Government given ID and record details of the blocks in the production register and as per the request of customers, approved for sale, the petitioner seeks the 3rd respondent to issue despatch permits for transportation of such mineral quantity produced. After inspection of the technical staff of the 3rd respondent, after verifying the dimensions of the blocks, they approve the petitioner's request and issue e-permits from such approved mineral blocks. If suppose any variations with regard to the volume of the quantity recorded in the register, then the officer will ask to rectify the mistake, then only the dispatch permits will be issued. The petitioner was given e- transit permits till May, 2020. Subsequently the petitioner has uploaded the production details and request for e-permits in the prescribed web site i.e., www.mines.ap.gov.in from 29.05.2020 till 3 07.06.2020 and the same will automatically goes into the domain of the 3rd respondent for issuance of the corresponding e-permits under Rules. Despite uploading the requests as per Rules, the 3rd respondent has not considered and no approvals were given. Hence, the petitioner requested several occasions. Despite the requests, the petitioner also submitted a letter on 10.06.2020 to the 3rd respondent, requesting the transit permits and the same was not considered, the petitioner left with no option, except to file the present writ petition.
7. Initially the matter came up for admission on 22.06.2020 and 13.07.2020, at request of the Government Pleader the same was adjourned for 15.07.2020. On 15.07.2020, the Court passed the following order:
"In the circumstances and by way of an interim direction, the third respondent is directed to consider the representation of the petitioner dated 10.06.2020 for issuance of dispatch permits within a period of one week from the date of receipt of this order."
8. Considering the above direction, the authorities have considered the representation and rejected the request made by the petitioner vide his proceedings dated 22.07.2020. Subsequently, the matter was adjourned several occasions for filing counters and finally on 21.10.2020, this Court has considered the pleadings and passed the following interim direction:
"In view of the orders passed earlier, respondent No.3 is directed to issue dispatch permits to the petitioner in respect of mineral already excavated and lying over the area admeasuring 2.355 hectares in Sy.Nos. 59/P, 60/P, 101/1P, 102/P, 103/P and 988/2P of RL Puram Village of Cheemakurthy Mandal of Prakasam District."
9. Subsequently, when the matter came up before this Court on 04.01.2021, this Court directed to implement the orders passed by 4 this Court on 21.10.2020, and the same was not complied. On 07.01.2021 a direction was given to the respondents 2 and 3 to appear before this Court, if they failed to comply the orders, and the matter was posted to 20.01.2021. On that day, the learned Additional Advocate General appeared on behalf of the respondents and requested this Court to take up the matter finally in view of the completion of the pleadings. Considering the same, the appearance of the respondents was dispensed with, and the matter is taken up for hearing on the next date.
10. Learned Government Pleader for Mines and Geology appearing for the respondents 1 to 3 filed counter, denying the allegations made by the petitioner in his affidavit.
11. Replying to the contentions of the petitioner, the respondents submitted that though the petitioner has made application on 10.06.2020, the same was received by the 3rd respondent on 11.06.2020 but the Member Secretary of A.P. Pollution Control Board, Vijayawada has given Stop Production Orders on the above leases vide order No.580/APPCB/UH-II/TF/ONG/2020, dated 14.07.2020, as the lessee company has not complied the conditions mentioned in the Environment Clearance Consent for Establishment and Consent for Operation. Further submitted that the petitioner has also violated the Rule 16 read with Rule 19 of the Granite Conservation and Development Rules, 1999 [for short GCD Rules, 1999].
12. Further it is submitted that the petitioner has violated the Rules 16 read with 19 of GCD Rules, 1999, even also not complied the conditions for Environmental Clearance, Consent for Establishment and Consent for Operation. The representation of the petitioner dated 5 10.06.2020 for issuance of dispatch permits was considered and rejected by the competent authority vide proceedings dated 22.07.2020, hence, the petitioner is not entitled for dispatch permits for violation of above said Rules.
13. Learned counsel appearing on behalf of the petitioner has contended that once the lease is existing under Rule 20, the authorities have no option except to grant dispatch permits as per Rule 34(1) of APMMC Rules, 1966.
14. Further learned counsel contended that show cause notice was issued by the Assistant Director of Mines and Geology, i.e. 3rd respondent for violation of APMMC Rules, 1966 and GGD Rules, 1999. Questioning the said notice, the petitioner has filed writ petition and the same was disposed of by this Court along with the batch of writ petitions i.e. W.P.Nos.4894 of 2020 and batch, dated 28.02.2020 setting aside the impugned notices therein, which reads as follows:
"Accordingly, in view of the legal infirmity stated supra, the impugned notices are hereby set aside. However, this order will not preclude the authorities from issuing fresh show-cause notices to the petitioners through proper authority by enclosing all the relevant documents, in which case, the petitioners will have right to submit their explanation by taking all the factual and legal pleas which are available to them. These writ petitions are disposed of accordingly."
15. Pursuant to the said orders, the 2nd respondent has issued show cause notice on 18.03.2020, followed by demand notice dated 31.07.2020, for determination of quarry lease vide proceedings dated 20.08.2020. The said orders were set aside by the Court in batch of Writ Petition Nos.15103, 15104 and 15112 of 2020, by its 6 order dated 07.08.2020 and the same was corrected by this Court, it its order dated 02.11.2020.
16. Learned counsel has further stated that the Pollution Control Board has passed an order on 14.07.2020 directing to stop production. Questioning the said orders, the petitioner has filed the Writ Petition No.12843 of 2020, wherein initially interim direction was granted by this Court and subsequently the same was set aside by its order dated 27.07.2020.
17. Learned counsel for the petitioner to support his contentions has mainly relied on the following provisions of the statute:-
Rule 34 of APMMC Rules 1999:- Despatch permit:-
(1) No minor mineral shall be dispatched from any of the leased areas without a valid permit issued by the Assistant Director of Mines and Geology concerned or an officer authorized in this behalf by the Director of Mines and Geology:
Provided that any misuse of the transit forms without paying Seigniorage Fee and not accompanied by the transit forms used by the Assistant Director of Mines & Geology concerned or an officer authorized in this behalf by the Director of Mines & Geology and any other contravention, shall result in forfeiture of Security Deposit and levy of normal Seigniorage Fee along with "five times" penalty by the Assistant Director of Mines & Geology concerned or the Officer as authorized by the Director of Mines & Geology (2) The application for the despatch permit under sub-Rule (1) shall be made by the lessee to the Assistant Director concerned in Form-K by duly enclosing challans towards advance payment of seigniorage fee for the proposed quantity to be despatched at least ten days before the proposed date of despatch of the mineral. The permit shall be issued by the competent authority in Form-L:
Rule 12. Grant of lease:- (h) Conditions of licence or lease:-
(iii) The lessee shall pay the seigniorage fee as per the rates prescribed from time to time in Schedule-I in advance for the quantity intended to be despatched and submit the original challans 7 to the Assistant Director of Mines and Geology concerned and then only despatch the material. The lessee shall furnish the details of [granite and marble] despatches with block numbers, quality, quantity and place of consignment to the Assistant Director of Mines and Geology concerned immediately soon after the despatch of material. However, the lessee is required to obtain the transit forms in advance for transportation of [granite and marble] and shall render the account of the Assistant Director concerned once in a month. No second consignment of way bill shall be issued unless the lessee has rendered the account of the previous account of consignment of way bill:
Provided that any misuse of the transit forms despatch of any [granite and marble] without paying Seigniorage fee and not accompanied by the transit forms issued by the Assistant Director, the lessee liable to pay [five times] of the normal Seigniorage fee as penalty for first time offence and [ten times]penalty for the second time offence in addition to the Normal Seigniorage fee. Any subsequent offence shall result in termination of the Lease.
Rule 20. Rights under a Lease:- Subject to a contract to the contrary, a quarry lease granted under the Rules shall confer on the lessee, the right to quarry, carry away, sell or dispose of the minor mineral or minerals specified in the lease deed and found upon under the lands specified therein.
Relevant Rules of the Granite Conservation and Development Rules, 1999 [GCDR, 1999] reads as follows:
Rule 16. Mining plan as a pre-requisite to the commencement of mining operations.--
(1) No person shall commence mining operations for granite in any area except in accordance with a mining plan approved under these Rules.
(2) The State Government or any person authorised in this behalf by that Government may require the holder of a lease to make such modifications in the mining plan referred to in sub-Rule (1) or impose such conditions as it considers necessary by an order in writing if such modifications or imposition of conditions are considered necessary in the light of the experience of operation of mining plan or in view of the change in the technological development. (3) A holder of a lease, desirous of seeking modifications in the approved mining plan as are considered expedient, in the interest of 8 safe and scientific mining, conservation of granite, or for the protection of environment, shall apply to the State Government or any person authorised in this behalf by that Government, setting forth the intended modifications and explaining the reasons for the same.
(4) The State Government or any person authorised in this behalf by that Government may approve the modifications under sub-Rule (3) or approve with such alterations as it may consider expedient.
Rule 19. Mining operations to be in accordance with mining plan.--
(1) Every holder of a lease shall carry out mining operations for granite in accordance with the approved mining plan with such conditions as may have been prescribed under sub-Rule (2) of Rule 16 or with such modifications, if any, as permitted under sub-Rule (4) of Rule 16 or the mining plan or the scheme approved under Rule 12 or 17 or 18 as the case may be.
(2) If the mining operations are not carried out in accordance with the mining plan as referred to under sub-Rule (1), the State Government or any person authorised in this behalf by that Government may order suspension of all or any of the mining operations and permit continuance of only such operations as may be necessary to restore the conditions in the quarry as envisaged under the said mining plan.
18. As contended by the counsel for the petitioner the rights conferred under Rule 20 of APMMC Rules, 1966 if the quarry lease granted and the same is subsisting, the lessee has every right to quarry, carry away, sell or dispose of the minor mineral or minerals specified in the lease deed and found upon under the lands specified therein. Interpreting the said provision, this Court has disposed of several writ petitions and the petitioner has filed some of the orders passed by this Court in the identical issues. In Writ Petition Nos.265634 of 2015 and 22857 of 2015 this Court has categorically stated that as per Rule 20 of the APMMC Rules, the quarry lease confers on the lessee the right to quarry, carry away, sell or dispose of the minor minerals specified in the lease deed. 9
19. It is evident from the reading of the above provision of law that the quarry lease granted confers on the lessee, the right to quarry and dispose of the minerals specified in the lease deed and accordingly allowed the writ petitions and directed the respondent authorities to issue dispatch permits to the petitioner for transportation of the mineral.
20. Learned counsel for the petitioner further stated that in the counter the respondents have specifically stated that in view of the orders passed by the Pollution Control Board in order No.580/APPCB/UH-II/TF/ONG/2020, dated 14.07.2020 to stop the quarry operations, the 3rd respondent has not approved the uploaded production details in e-permit system. In view of the said proceedings issued by the Pollution Control Board, the respondents have not considered the application filed by the petitioner for dispatch permits. Even the said order passed by the Pollution Control Board was challenged before this court in W.P.No.12843 of 2020. Initially on 31.07.2020 this Court has granted interim direction and finally said order was set aside. The respondents having knowledge about the setting aside order passed by this Court, the same was not brought to the notice of this Court in their counter.
21. In the counter, the respondents stated that the petitioner has violated the Rule 16 read with Rule 19 of Granite Conservation and Development Rules 1999. But the authorities not issued any notice for contravention of the said Rules to the petitioner. In fact Rule 16 deals with mining plan as a pre-requisite to the commencement of mining operations. According to Clause (1), no person shall commence mining operations for granite in any area 10 except in accordance with a mining plan approved under these Rules.
22. Bare reading of the said Rule, it clears that the Rule 16 is a precondition, unless and until that is satisfied, no license shall be granted. As far as Rule 19 is concerned, every holder of a lease shall carry out mining operations for granite in accordance with the approved mining plan. This Rule also states that unless and until the mining plan approved by the competent authorities, the petitioner is not entitled to conduct mining operations in the leased area. Hence, the statement made in the counter that the petitioner has violated and contravened the Rules 16 and 19 is baseless and without having any substance. Hence, in view of the orders passed by this Court on earlier occasions, and also in view of the Rule 20, the authorities have no power to deny or withhold the dispatch permits as per Rule-34(1).
23. Refuting the said contentions, learned Additional Advocate General appearing on behalf of the State has categorically contended that a conjoint reading of Rule 16 and 19 of the GCDR, 1999, it clarifies that everyone has to submit mining plan for approval and they should commence mining operations in accordance with the approved mining plan. That mining plan should be renewed every five years. But in the instance case the petitioner has conducted the mining operations beyond the approved plan. Hence, the petitioner have violated the lease conditions stipulated under Rule 12 5 (h) (iii) of APMMC Rules, 1999. In view of the same, they are not entitled to be considered under Rule 34 (1) of the said Rules.
24. The learned Additional Advocate General further contended that in contravention of the Rules, the authorities have power to initiate action under Rule 26(3) of APMMC Rules, 1966. In the instant case, 11 as per the inspections done by the authorities, they found the contraventions, and the same was brought notice of the petitioner by way of show cause notice, and also issued demand notice and without paying the same, they are not entitled for consideration under Rule 34(1) of APMMC Rules 1966.
25. Learned Additional Advocate General further submitted that as directed by this Court in its orders dated 15.07.2020, the authorities have considered the representation and passed orders dated 22.07.2020 directing the petitioner to comply the provisions of GCD Rules, 1999 and Rule 12 (5) h (1) of APMMC Rules, 1966. In view of the said order, the authorities have not denied the application filed by the petitioner, only requested to comply the provisions of the act to consider his application under Rule 34(1) of APMMC Rules, 1966.
26. Reply to the contentions raised by the Additional Advocate General, leaned counsel for the petitioner has categorically submitted that the petitioner has not violated any of the GCD Rules 1999, more specifically Rules 16 and 19, those are pre-requisite conditions and the petitioner has complied the same, in fact the authorities have not issued any notice to the petitioner for bringing the contraventions either Rules 16 and 19 of the Rules, 1999. Further submitted that it is not in dispute that the orders passed by the authorities as wells as the show cause notice, demand notice, stop production order and determination of mining order, all of them were set aside by this Court in various writ petitions and nothing is opposed against the petitioners. Once the lease is subsisting and the petitioner have every right to do the business as per Rule 20. Accordingly, the petitioner has made an application under Rule 34(1) of APMMC Rules, 1966. As far as reply to the order passed by the respondent dated 22.07.2020 12 the petitioner has submitted explanation on 04.01.2021 and no orders have been passed so far. In view of the above, the respondents have no option except to pass orders, and under section 34(1) of APMMC Rules, 1966.
27. In view of the above rival submissions and considering the facts of the present case, on perusing the relevant provisions of the APMMC Rules 1966 and GCD Rules, 1999 and considering that it is not in dispute that show cause notice demand notice, Stop Production Orders and determination of mining lease orders are set aside by this Court in other writ petitions and in view of the absence of any order, when the lease is subsisting as per Rule, 20 of APMMC Rules, 1966, this Court is of the considered opinion that there is no absolute justification on the part of respondents to withhold the dispatch permits, applications which are filed as per Rule 34(1) of APMMC Rules, 1966.
28. For the aforesaid reasons mentioned, considering the provisions of the law, the writ petition is allowed, directing the 3rd respondent to consider the application filed by the petitioner for grant of dispatch permits as per Rule 34(1) of APMMC Rules, 1966 and issue dispatch permits forthwith. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall also stand closed.
______________________ JUSTICE D. RAMESH Date:02.03.2021 Pnr 13 THE HONOURABLE SRI JUSTICE D.RAMESH WRIT PETITION NO.10457 OF 2020 Date: 02.03.2021 Pnr