Andhra HC (Pre-Telangana)
M/S Siri Sand Company, Rep. By Its ... vs The Government Of Andhra Pradesh Rep. By ... on 1 September, 2014
Author: Nooty Ramamohana Rao
Bench: Nooty Ramamohana Rao
THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO
WRIT PETITION Nos.21564 of 2014 and batch
01-09-2014
M/s Siri Sand Company, Rep. by its Managing Partner V.Ramprasad .Petitioner
The Government of Andhra Pradesh Rep. by its Principal Secretary and
others.. Respondents
Counsel for the Petitioner: Sri G.Raja Babu
Counsel for Respondents:Government Pleader for Mines and
Geology (Andhra Pradesh)
Geology (Andhra Pradesh)
<Gist :
>Head Note:
? Cases referred:
AIR 1995 SC 858 (1)
THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO
WRIT PETITON Nos.21564, 21794, 21824, 21773, 21592, 21595,
21971 and 21983 of 2014
ORDER:
All these writ petitions arise out of a common context and also seek identical relief. Hence, they are heard together and are decided now by this common judgment.
All the petitioners submitted representations to the State Government for granting necessary transit permits for transportation of Minor Mineral ordinary sand, which is stocked at the respective stock yards held by the petitioners. The petitioners grievance is that the State Government has not been passing any order granting transit permits and hence these writ petitions.
Heard Sri C.V.Mohan Reddy, learned Senior Counsel on behalf of Sri G.Raja Babu, learned counsel for the petitioner, Smt. N.Shobha and Sri O.Manohar Reddy, learned Senior Counsel for the petitioners and learned Assistant Government Pleader for Mines and Geology (Government of Andhra Pradesh) and Sri N.Sridhar Reddy, learned counsel on behalf of the impleaded party.
Ordinary sand is a Minor Mineral in terms of the definition contained in Section 3 (e) of the Mines and Mineral (Development and Regulation) Act, 1957. In terms of the Section 15 of the said Act, Andhra Pradesh Minor Mineral Concession Rules 1966 have been framed, referred to henceforth as Rules. All the petitioners have been granted leaseholdrights at one point of time or the other for quarrying the said Minor Mineral. However, after the expiry of the leaseholdrights the petitioners have approached the State Government and sought for extension of the leaseholdrights for quarrying/excavating sand from the earlier leased out areas. The State Government passed orders on 21.12.2013 extending the lease period for six months to enable the petitioners to excavate the balance quantity of sand. These extension orders of the State Government are the subject matter of challenge in a batch of writ petitions bearing No.39265 of 2013 and batch, which were decided by me on 11.04.2014. It would be appropriate to notice that the previous lessees/quarry lease holders as well the State Government have proceeded on the premise that lessees deserve extension for, they were prevented for certain reasons beyond their control from extracting the permitted quantity of sand and hence instead of entertaining any claims for refund of proportionate money, it would be equitable to grant extension of lease period.
In the course of judgment rendered by me on 11.04.2014, I have undertaken an analysis of the Rules prevailing on the subject pursuant to the amendments brought out and notified through G.O.Ms.No.84 Industries and Commerce Department dated 10.04.2007, G.O.Ms.No.154 Industries and Commerce Department dated 15.11.2012 and G.O.Ms.No.186 Industries and Commerce Department dated 17.12.2013. After a careful analysis of the rule position, I have come to the following conclusions:-
The consistent analysis by this Court of the legal regime contained through notifications in G.O.Ms.No.84 dated 10.04.2007and G.O.Ms.No.154 dated 15.11.2012, made it explicitly clear that the question of grant of extensions of the leaseholdrights for any reason whatsoever and claims for any type of compensation would not arise at all and out of contemplation by the legal regime, the question of conceding any such power to the State Government now is equally untenable. This apart, no fresh life or substance can be introduced into a lease which has already expired. Leases can be brought to an end in a variety of ways and one of the well known methods is by fixation of specific time period.
Repeatedly, this Court has made the legal position clear to the State Government that no extension of lease can be granted for quarrying the minor mineral sand, but yet, the State Government went ahead and granted extensions of lease in favour of few others. I do not know whether it is by an accident or coincidence that all the beneficiaries of extension orders have approached the Honble Minister for Mines & Geology, Government of Andhra Pradesh on the same day i.e. on 02.09.2013 and the Honble Minister endorsed them on the same day for taking necessary action. Thereafter State Government has either by design or default or deliberately, led itself into believing that the legal regime required it to refund certain amounts to the lessees whereas, this Court has consistently deciphered the legal regime and made it clear to the State government that there is no such obligation whatsoever on the part of the State Government to refund any such monies. It was also further made clear by this Court consistently that no claim for any kind of compensation can be laid by the lease holder under any circumstances. Inspite of this clear and categorical pronouncements of this Court, one fails to grasp as to why the State Government suffered from the delusion that it had to refund certain monies to the lease holders due to the change in the legal regime.
Possibly, the State Government in the process has compromised on the elements of public interest. It cannot be ruled out that the State Government has deliberately erred in its judgment in granting extensions, as no where did the notings in the file (made available by the learned Special Government Pleader) draw the attention of the decision making authority about the ratio laid down by this Court in various cases decided earlier with regard to grant of extension of lease periods and the non entertainability of the claims for compensation by the lessees. The States interests in the process have been deliberately sacrificed. Grant of every power springs from trust and confidence. Hence, exercise of every such power must be carried out diligently and after consulting all relevant factors.
I am, for the foregoing reasons unable to find any of the contentions canvassed on behalf of the respondents as tenable.
All the impugned orders are set at naught and it is declared that the State Government lacks power to grant any extensions of quarry leases for the minor mineral sand even under the current legal regime. The State Government shall forthwith stop all such lease holders from quarrying sand any further. The State Government shall ensure that sand quarry operations henceforth can be carried out strictly in accordance with the legal regime prevailing through the notification contained in G.O.Ms.No.186 Industries & Commerce (Mines-I) Department dated 17.12.2013.
Pursuant to this judgment, it is brought to my notice that on 17.04.2014 the Joint Collector has passed orders directing the petitioners to stop quarrying Minor Mineral Sand and accordingly all the petitioners have stopped quarrying sand. It is now the case of the petitioners that the Mineral thusfar quarried/excavated must be permitted to be transported as the Mineral has been excavated by them pursuant to the order passed by the State Government granting extension.
Sri C.V.Mohan Reddy, learned Senior Counsel, would further submit that once the seigniorage fee has been paid on the Mineral extracted, it becomes the property of the lessee and he cannot be prevented from selling or transporting it from his stock yard. Smt. N.Shoba, learned counsel, would contend that under the Mineral Dealers License, the petitioners are entitled to transport the Mineral even after the expiry of the lease period and hence the petitioners are entitled for grant of the necessary transit permits.
I am not in a position to appreciate any of these contentions. This Court on the previous occasion has categorically held that the rules on the subject never authorized grant of extension of the leasehold rights for any reason whatsoever and the claims from the lease holders for any type of compensation would not arise at all. It was further found that there was no legal or valid basis for the State Government to feel obliged to entertain any claim for refund of any money to the former lease holders. By granting extension, which was held by this Court, as bad, the State Government has compromised on the elements of public interest and the States interest have been deliberately sacrificed. In the face of this indictment of the States action, I fail to comprehend as to how the exercise indulged in by the petitioners in extracting/quarrying the sand pursuant to those very orders of extension granted by the State Government can be described as a legitimate exercise. Further it was categorically held by this Court consistently that the legal regime contained in the rules never authorized any claim to be made for compensation for whatever be the reason by a lease holder. Therefore, the alleged participation of transporters in Samaikyandra agitation can hardly offer a valid platform or substratum for laying the claim for either refund of money or for extension of the leasehold rights. In the face of this clear and categorical finding, the petitioners have no manner of any right to quarry or extract the Mineral any time after the original leasehold period has come to an end. It was never doubted that the original leasehold period of the petitioners has come to an end long prior to the grant of extension orders passed by the State Government on 21.12.2013. Therefore, the contention of the petitioners that they have proprietary right over the Mineral sand lying un-disbursed in their stock points/ stock yards has no basis whatsoever. The State Government proceeded on an erroneous basis that it is obliged to refund a portion of the leasehold amount to the former lessees; whereas the legal regime contained in Rule 9-L of the Rules amended through G.O.Ms.No.84 dated 10.04.2007, Rule 9-H (1) (xv) of the Rules introduced through G.O.Ms.No.154 dated 15.11.2012 and Rule 9-H (1) (xii) of the Rules introduced through G.O.Ms.No.186 dated 17.12.2013 have been held by this Court as not authorizing to entertain any claims whatsoever under any circumstances for extension of grant of extraction of sand or for any compensation for non operation of the leased out area due to floods or heavy rains or for any other situation during the authorized period of extraction of sand. Therefore, the petitioners could not have laid any claim for any compensation including refund of money or solicit extension of leasehold rights. All their rights for quarrying/extracting the Mineral sand and its transportation drew to a close on the last day of the lease period held by them earlier and hence the orders of extension granted by the State Government on 21.12.2013 not only lacked authority to do so, but any semblance of justification. Therefore, any Mineral extracted by the petitioners pursuant to such a grant of extension by the State Government is totally unauthorized. No such unauthorized act on their part can create a justifiable right in property. To concede any such right in the Mineral in the hands of the petitioners would, in fact, amount to paying a premium to a totally unauthorized and unjust act indulged in by the State Government. The right in the Mineral sand extracted by the petitioners, therefore, is that of the State itself. No right in property passes legitimately into the hands of the petitioners to enable them solicit its transportation now.
In the judgment rendered on 11.04.2014, the State Government has been found to have sacrificed its interest while granting extension to the petitioners and their like. At least by treating the unauthorizedly extracted Mineral as belonging to the State, a part of the loss caused to the State could be redeemed.
It is apt to recall what the Supreme Court observed in STATE OF TAMIL NADU v. HIND STONE (AIR 1981 SC 711) Rivers, Forests, Minerals and such other resources constitute a nation's natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the Nation. It is recognised by Parliament.
Long years ago Justice Mookerjee in his leading judgment rendered in Ashutosh Sikdar v. Behari Lal Kirtania (ILR 35 Cal 61), answering the question whether a sale held contrary to the provisios of Section 99 of Transfer of Property Act is Nullity, after referring to Macnamara on Nullity and Irregularities observed as under:
that an irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceeding, or apply to its whole operation, whereas a nullity is a proceeding that is taken without any foundation for it or is so essentially defective as to be of no avail or effect whatever, or is void and incapable of being validated.
Emphasis is brought out Since the proceedings of the State Government dated 20.12.2013 are found to be without any foundation, or legal basis any action that followed pursuant thereto can be of no avail or effect to the petitioners or even be validated. The proceedings dated 21.12.2013 having already been set at naught, they cannot now leave a trial of benefit in the hands of the petitioners.
Smt.N.Shobha, learned counsel, has contended that the petitioners were granted Mineral Dealers license in accordance with the Andhra Pradesh Mineral Dealers Rules, 2000 and the same is still subsisting and hence transit passes ought to be granted by the Assistant Director of Mines and Geology. It was further contended that so long as the Mineral Dealers license in Form-D is subsisting no transit pass can be denied.
It is worthy to note that the Andhra Pradesh Mineral Dealers Rules, 2000 are farmed to regulate the possession, storage, trading and transport of minerals and mineral products and to check the evasion of royalty or seigniorage fee, stopping of illegal mining and quarrying and transportation in the State. The expression dealer has been defined in Rule 2 (d) as meaning any person who carries on the business of buying, selling, supplying, transporting, distributing or delivering for sale of minerals and mineral products and includes a person who holds a mining lease or a quarry lease granted under the Mineral Concession Rules, 1966 and hence every person holding a quarry lease answers the description of a dealer. Once a quarry lease is brought to a close, he cannot fall automatically within the definition of a dealer. While granting the Mineral dealers license, certain conditions were imposed. The 1st condition reads as under:
The dealer shall not have any sort of claim over the mineral remained in the stock yard after expiry of the license period and the un-dispatched stock shall automatically become the property of the Government and the department shall have the rights to dispose it.
Therefore, if an unauthorisedly quarried mineral which did not suffer any seigniorage fee which is stored at the stock yard, after the expiry of the license the dealer/the lease holder of a quarry lease cannot deal with the said mineral entirely on his own.
Learned senior counsel Sri C.V. Mohan Reddy has laid emphasis on the following sentence found in the penultimate paragraph of the judgment dated 11.04.2014:
The State Government shall forthwith stop all such lease holders from quarrying sand any further Learned senior counsel Sri C.V. Mohan Reddy would submit that this Court has stopped only quarrying of sand any further, but it did not deal with the mineral sand quarried already. Hence, the mineral quarried prior to 11.04.2014 can be allowed to be transported. Further, proceeds the argument, that the petitioners have stopped quarrying the sand immediately after this judgment was pronounced. In fact, the Joint Collector has also passed orders on 17.04.2014 ensuring that the petitioners will not quarry sand any further. Therefore, the sand quarried prior to 11.04.2014 shall be permitted to be transported.
I am afraid, this argument ignores the principle that no part of a judgment should be read like a provision of a statute. When once this Court has found that there is no legal basis for the State Government to grant extension of the leasehold rights and above all, it does not have any such power to do so under the existing legal regime, the whole exercise of quarrying sand indulged in by the petitioners after their original leasehold period has come to an end much earlier becomes a totally unauthorized activity. No such unauthorized activity can be permitted to be validated or to be taken advantage of at any later point of time. By the date this judgment was rendered by this Court on 11.04.2014, the petitioners were found quarrying sand pursuant to the grant of extensions by the State Government on 21.12.2013. Therefore, this Court had to direct the petitioners to stop all further quarrying of sand. This Court never declared the quarrying of sand indulged in by the petitioners between 21.12.2013 upto 10.04.2014 as an authorized activity, in the aforesaid judgment. That apart, there was no occasion for this Court to deal with the mineral quarried pursuant to the orders of extension of leasehold right granted by the State Government at the stage of deciding the validity of the grant of extensions. No such question has fallen for consideration in the batch of cases decided on 11.04.2014. Therefore, the petitioners cannot seek to transport the mineral sand extracted by them pursuant to a wholly unauthorized act indulged in by the State Government.
Further, the mineral extracted by the petitioners pursuant to the orders passed by the State Government on 21.12.2013 has never suffered any seigniorage fee. What the State Government did was, it felt obliged to grant extension to the extent of the money (part of the lease amount) to be refunded to the petitioners. Whereas, the finding of this Court all through was that there was never any obligation for the State Government to refund any part of the lease amount to the leaseholders. Whatever monies are paid by them was due to grant of lease hold rights secured by them after their bids in public auctions were accepted. Whether they operated the lease for the entire period or not and as to whether they quarried the entire mineral from the leased out area or not, is not an issue which can warrant any refund of money by the State Government. Therefore, the petitioners have quarried the mineral pursuant to the extension order dated 21.12.2013 without paying any seigniorage fee. In this view of the matter, the principle enunciated by the Supreme Court in State of Tamil Nadu v. M.P.P. Kavery Chetty is not attracted. The Supreme Court in paragraph 24 of the aforementioned judgment held as under:
There is no power conferred upon the State Government under the said Act to exercise control over minor minerals after they have been excavated. The power of the State Government, as a subordinate rule making authority, is restricted in the manner set out in S.15 It is not in dispute that A.P. Minor Mineral Concession Rules, 1966, have regulated the entire exercise for extracting/quarrying the minor mineral sand. It can be extracted only by a leaseholder who pays quantified seigniorage fee in the form of lease amount. When once, no such seigniorage fee has been paid after 21.12.2013, right in property of the Mineral does not pass from the hands of the Government to the petitioners herein. I, am therefore, of the opinion that the petitioners have no right of any manner for grant of the transport/transit permit.
The contention pressed by Sri O.Manoher Reddy, the learned counsel for the petitioner in W.P.No.21971 of 2014 that the petitioner in that case was prevented from quarrying sand during the second year of the lease period, either due to the intervention of the Court or due to delay in fixing the Geo-coordinates of the leased out area, in my opinion, does not make any difference. The question is whether any extension of lease hold period can be granted at all or not. The legal regime did not authorize any such grant. Hence, no distinction can be shown in this case either.
The State Government would immediately take all necessary steps to recover from each of the petitioners the entire quantity of Minor Mineral Sand available at their stockyard/stock-point and dispose it of for utility of any public purpose or by conducting public auction. Each of the petitioners shall account for quantity of Mineral stated to be available in the respective writ petitions at their respective stockyard/stock-point. If there is any Mineral in excess of such quantities, the same also becomes the property of the State. For any default of the petitioners in accounting for less quantity of Sand, the State shall take necessary steps for recovering the value of the said Mineral immediately from each of the petitioners.
There are no merits in the above writ petitions. Accordingly, they are dismissed, but however, without costs.
Consequently, miscellaneous petitions, if any pending in these writ petitions, shall stand closed.
______________________________________ JUSTICE NOOTY RAMAMOHANA RAO 01.09.2014