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Judgment
The petitioner in the instant writ petition challenges the validity of Memo No.25220/M.II(l)97-3 dated 12-2-1999 issued by the first respondent herein. By way of amendment to the prayer, the petitioner also challenges the Proceedings No.27209/R4-2B/95 dated 21-4-1999 issued by the second respondent and consequently to declare the lease deed dated 28-4-1999 executed in favour of the fourth respondent as arbitrary and illegal. Brief Facts:
The petitioner is a private limited company engaged in the business of quarrying, cutting and polishing of black granite. The petitioner by application dated 30-9-1999 applied for grant of lease for quarrying of black granite over an extent of 3.00 hectares in Sy. No.134 of Gowrithimmapalli village, Baireddi Mandal, Chittoor District. The petitioner is stated to have filed another application on 26-9-1997 for grant of similar lease with regard to an extent of 2.00 Hectares in Sy. No.152/1 of Kadapantham village of Baiareddi Mandal, Chilloor District with which we are not concerned - for the present, in this writ petition.
The Deputy Director of Mines and Geology, Cuddapah, recommended for issuance of quarry lease of black granite in favour of the petitioner over an extent of 2.907 Hectares in Sy. No.134 of Gowrithimmapalli village for a period of fifteen years. The Mandala Revenue Officer, Baireddipalli vide his lelter dated 2-5-1998 gave no objection certificate for grant of quarry lease in favour of the petitioner. The second respondent herein through proceedings dated 8-1-1999 granted quarry lease for black granite over an extent of 2.907 Hectares in Sy. No.134 of Gowrithimmapalli for a period of fifteen years, as per Rule 12.5 of A.P. Minor Mineral Concession Rules, 1966 (for short ''the Rules'').
It is stated in the affidavit filed in support of the writ petition that the Assistant Director of Mines and Geology, Chittoor, the third respondent herein vide letter dated 22-1-1999 directed the petitioner to comply with the conditions stipulated therein and to appear before him for execution of quarry lease deed. The petitioner accordingly appeared before him on 15-2-1999 and produced the required documents and also Challans evidencing the payment requisite amounts.
It is the case of the petitioner that inspite of complying with all the requirements, no lease deed was executed in favour of the petitioner and in the circumstances, the petitioner filed writ petition - WP No.7988 of 1999 in this Court and the same is still pending. The said writ petition will also be disposed of along with this writ petition. While the matter stood thus, the petitioner claims to have received a caveat notice in the first week of March, 1999, from the fourth respondent herein, wherein a reference was made to the impugned order dated 12-2-1999 on the file of the first respondent. The petitioner thereafter obtained a copy of the impugned order and filed the present writ petition challenging the same.
It is the case of the petitioner that on 30-9-1997 it made an application for grant of quarry lease over the said extent of land and on the date of its application, there was no other application pending for grant of quarry lease. Therefore, granting of quarry lease in favour of the petitioner does not suffer from any legal infirmity and the first respondent ought not to have interfered in the matter. It is submitted that the application of the fourth respondent for grant of quarry lease was rejected on 9-4-1997 and no revision has been preferred within the prescribed time by the fourth respondent and the delay has been condoned by the first respondent without any application of mind and without assigning any reasons. It is also submitted that the Government ought not to have interfered in the matter in favour of the fourth respondent directing to grant quarry lease in its favour without giving an opportunity of being heard to the petitioner.
It may be required to notice that the fourth respondent herein made an application in the prescribed proforma on 18-9-1995, itself seeking grant of quarry lease for black granite over the same extent of land situated at Gounithimmapalli village of Baireddy Mandal. The same has been acknowledged by the second respondent herein, who accordingly directed the Deputy Director of Mines and Geology, Cuddapah, to submit his report in the matter. It is the case of the fourth respondent that the Deputy Director of Mines and Geology sent a letter on 9-10-1995 asking the fourth respondent to be present on 27-10-1995 for the purpose of inspection and survey of the applied area on 27-10-1995. The petitioner was accordingly present. The survey and demarcation work was completed but the surveyor could not prepare the sketch, as he was pre-occupied with some other work. The fourth respondent could not affix signature in the sketch to be prepared by the surveyor. The Deputy Director, Mines and Geology, Cuddapah sent a letter on 21-12-1996 requesting the fourth respondent to attend his office for the purpose of affixing signature in the surveyed sketch and also forgiving consent statement for accepting the surveyed area. The fourth respondent for some reason could not be present. The Deputy Director stated to have sent proposal to the second respondent for rejecting the fourth respondent''s application and the second respondent accordingly rejected the fourth respondent''s application on 9-4-1997. The fourth respondent received the same on 17-5-1997. Aggrieved by the said order the fourth respondent preferred a revision petition under Rule 35-A Rules on 27-8-1997 in the prescribed proforma-Form ''J'' along with an application to condone the delay in presentation of the revision. The first respondent accordingly called for remarks from the second respondent with reference to the fourth respondent''s application for condoning the delay, as well as about the revision petition. The second respondent through proceedings dated 13-12-1997 submitted his report. But, curiously, the second respondent in his remarks does not state anything about the petitioner''s application dated 30-9-1997. The second respondent has not stated anything about the application of the petitioner and granting the same. It is also clearly evident that the second respondent was aware of the pendency of the revision petition preferred by the fourth respondent against the order of rejection. The first respondent herein based on the material available on record condoned the delay and allowed the revision petition.
The second respondent perhaps having realised the mistake in granting quarry lease in favour of the writ petitioner appears to have directed the Deputy Director of Mines and Geology, Cuddapah to submit a report on the quarry lease application submitted by the fourth respondent. Such a decision appears to have been taken by the second respondent in the light of the orders passed by the first respondent on 12-2-1999 allowing the revision petition filed by the fourth respondent. In the survey, the representatives of the petitioner, as well as the fourth respondent participated, it is the case of the fourth respondent that the Deputy Director of Mines and Geology, Cuddapah, had convinced both, the petitioner, as well as the fourth respondent to accept equal extents of area in the said survey numbers in Gowrithimmapalli village, for which the writ petition, as well as the fourth respondent are stated to have accepted and the Depuly Director has accordingly submitted his proposal for grant of quarry lease in favour of the writ petitioner for an extent of 1.405 Hectares and an extent of 1.502 Hectares in favour of the fourth respondent. The fourth respondent accordingly accepted the proposal. The second respondent thereafter issued revised proceedings on 21-4-1999 granting quarry lease in favour of both, the writ petitioner, as well as the fourth respondent, duly specifying the extents allotted in favour of each of the parties. The fourth respondent accordingly complied with all the formalities and the lease deed was also executed on 28-4-1999.
The following facts would emerge from a perusal of the pleadings and the records made available:
(1) The fourth respondent made an application in the prescribed profonna on 18-9-1995 seeking grant of quarry lease over an extent of 2.00 Hectares in Sy. No.134 of Gourithimmalapalli; but, for whatever reason the same was rejected by proceedings dated 19-4-1997.
(2) The petitioner submitted an application on 30-9-1997 for grant of quarry lease for black granite over an extent of 3.000 hectares in the very same survey number of Gowrithimmalapalli village and the same has been received in the office of the second respondent on 4-10-1997.
(3) The fourth respondent herein filed revision petition before the first respondent on 27-8-1997 against the order issued by the second respondent rejecting its application by order dated 9-4-1997. The second respondent herein through proceedings dated 8-1-1999 granted quarry lease over an extent of 2.907 Hectares in Sy. No.134 of Gowrithimmalapalli village for a period of fifteen years, in favour of the petitioner, even while the revision petition filed by the fourth respondent herein is pending before the first respondent.
(4) It is evident from the record that the first respondent called for the report from the second respondent on 17-11-1997, itself, and making available the records for deciding the revision petition filed by the fourth respondent. The second respondent is, thus, clearly aware of the revision petition filed by the fourth respondent herein against the order dated 9-4-1997 rejecting its application for grant of quarry lease. In the normal course, the second respondent ought not to have processed the application of the petitioner herein for grant of quarry lease in respect of the same area, for which the fourth respondent also made an application as early as on 18-9-1995. The second respondent, however, not only processed the application of the writ petitioner, but granted quarry lease vide proceedings dated 8-1-1999.
(5) The first respondent-Government allowed the revision petition filed by the fourth respondent by order dated 12-2-1999.
Learned Counsel for the petitioner submits that the first respondent-Government committed serious irregularity in allowing the revision petition filed by the petitioner (sic fourth respondent) without providing any opportunity whatsoever to the writ petitioner. The petitioner is not only a proper, but necessary party to the proceedings and failure on the part of the fourth respondent to implead the petitioner is fatal and the impugned order is to be set only on that ground.
It is required to notice that the writ petitioner herein was no where in the picture as on 27-8-1997 when the fourth respondent filed revision petition against the orders dated 9-4-1997 rejecting its application for grant of quarry lease. The petitioner came into picture only on 30-9-1997 when it had filed the application for grant of quarry lease. Obviously, the petitioner was in knowledge of the things and took advantage of rejection of the fourth respondent''s application for grant of quarry lease. It is also clear from the record that the fourth respondent filed its application for grant of quarry lease almost about two years prior to the petitioner filing the application for grant of quarry lease. The blame, if any, in the matter, clearly rests on the second respondent herein. It is not explained in the counter affidavit as to why the second respondent failed to take into consideration the pendency of the revision petition filed by the fourth respondent, before granting quarry lease in favour of the petitioner on 8-1-1999. The record would reveal that even in the month of November, 1997, the second respondent was aware of the pendency of the revision petition, as the first respondent called for remarks from the second respondent with reference to the fourth respondent''s revision petition. The second respondent miserably failed to discharge his duties in a reasonable and fair manner. The Government through Memo dated 23-1-1999 required the attention of the second respondent and once again requested the second respondent to send his remarks in the matter. It is only thereafter the second respondent submitted his remarks in the matter on 29-1-1999. In the said remarks, the second respondent has not stated anything about the petitioner''s application for grant of quarry lease and the decision of the second respondent granting lease by proceedings dated 8-1-1999. The second respondent obviously played a dubious game in the matter. It is obvious that the second respondent deliberately withheld the report until 29-1-1999 so as to enable him to grant quarry lease in favour of the petitioner by proceedings dated 8-1-1999. The second respondent, in my considered opinion, ought to have stated about the orders granting quarry lease in favour of the writ petitioner. The facts speak for themselves.
The fourth respondent has not committed any irregularity whatsoever in not making the petitioner as a party to the revision petition. No lease has been granted in favour of the petitioner as on the date of filing of the revision petition by the fourth respondent. The petitioner has not even filed his application for granting quarry lease as on the date of filing of revision petition by the fourth respondent. The question to provide reasonable opportunity to the petitioner before disposal of the revision petition does not arise. The first respondent-Government was not even aware of grant of lease to the writ petitioner. Obviously, the petitioner was pursuing the matter and took advantage of there being no interlocutory order in the revision petition filed by the fourth respondent. But, it is difficult to believe that the writ petitioner has no knowledge about the fourth respondent filing the revision petition. Nothing prevented the petitioner from getting itself impleaded as a respondent in the revision petition filed by the fourth respondent. It is also "required to notice that, as on the date of fourth respondent filing application for grant of quarry lease there was no other application. The reasons for rejection of the fourth respondent''s application are totally untenable and unsustainable and in those circumstances the first respondent-Government rightly interfered in the matter and set aside the order passed by the second respondent rejecting the application of the fourth respondent for grant of quarry lease. The revisional order passed by the first respondent, in my considered opinion, does not suffer from any legal infirmities.
It is sought to be contended that as if the Government has no jurisdiction whatsoever to direct the second respondent, Director of Mines and Geology to grant lease in favour of the fourth respondent. According to the learned Counsel for the petitioner, even afterdisposal of the revision petition, it is the second respondent who has to take an appropriate decision in the matter either granting or not granting lease to the fourth respondent. The submission is totally misconceived and unsustainable. The Government in exercise of its revisional jurisdiction can, not only set aside the order passed by the Director, but also direct the Director to grant lease pursuant to the revisional order. The revisional authority can do what all the original authority can do in the matter. The submission made by the learned Counsel for the petitioner needs mention only for rejection.
It is also sought to be argued by the learned Counsel for the petitioner that as on 30-9-1997 there was only one application of the petitioner for granting quarrying lease and in the circumstances, lease has been rightly granted in its favour by the second respondent. The fourth respondent herein having received the rejection order dated 17-5-1997, filed the revision petition before the first respondent on 27-8-1997. The second respondent has the knowledge of this revision petition filed by the fourth respondent, at least, after receiving the Memo from the first respondent-Government on 17-11-1997 requiring his remarks in the matter. Under those circumstances the application filed by the first respondent on 18-9-1995 shall be deemed to be pending and under consideration before the first respondent-Government. Therefore, it is not possible for this Court to accept that the petitioner''s application alone was pending before the second respondent herein for grant of quarry lease.
The Rules do not suggest any preferential treatment to the Small Scale Industries as is sought to be contended by the learned Counsel for the petitioner. The applications for grant of quarry lease are required to be disposed of in accordance with the seniority. The fourth respondent''s application, undoubtedly is the earliest, and, in fact, there was no other application pending, as on the date the fourth respondent filed application seeking grant of quarry lease.
The decision in Dharambir Singh Vs. Union of India (UOI) and Others, , does not support the case of the petitioner in any manner whatsoever. On the other hand, the Apex Court in categorical terms held that no applicant has a right to grant of a lease and no applicant has got any preferential right over any other person on the ground that he alone has discovered the mines, it is true neither the petitioner nor the fourth respondent has got any vested and statutory right for granting quarry lease. The right is only for a proper consideration by the statutory authority.
The decision in Kolagada Chenna Basappa v. State Government of Mysore AIR 1966 Mys. 167, would not render any assistance whatsoever and support the contention of the learned Counsel for the petitioner that the fourth respondent has no subsisting interest in the matter after expiry of the period of limitation. The Mysore High Court observed that "the petitioner failed to file the revision application within two months and on the day when he filed the writ petition, the petitioner did not have any legal right subsisting in him which the Court can consider as being sufficient for invoking its jurisdiction under Article 226." Such an observation was made to decide as to whether failure to avail the alternative remedy would be a ground to dismiss the writ petition. The Mysore High Court held that "the petitioner has not explained in his affidavit, as to why he chose not to avail himself of the remedy which has been provided by the Act and the Rules. This is not one of those cases in which an onerous condition has been imposed on an aggrieved person before he could avail himself of such a remedy provided by the statute; like the requirement of a deposit of a heavy amount, before the remedy by way of revision or appeal could be availed of .......... The petitioner, not having satisfied us either that the remedy provided under the statute is inadequate or that there is any other good reason for his by-passing the same, would not be entitled to invoke the jurisdiction under Article 226."
In fact by revised proceedings dated 21-4-1999, the second respondent herein granted quarry lease in favour of the petitioner, as well as the fourth respondent herein for different extents of land. The fourth respondent had already executed the lease deed. There is no information as to whether the petitioner has also executed the lease deed in respect of the extent of lease granted to it by the second respondent. The total area in Survey No. 134 of Gowrithiinmapalli village appears to have been almost equally divided between the petitioner and the fourth respondent and accordingly the quarry leases were granted. The proceedings dated 21-4-1999 issued by the second respondent would meet the ends of justice. Some wisdom appears to have been drawn on the second respondent herein to resolve the conflict between the petitioner and the fourth respondent, as he is mainly responsible for creating such a situation.
Even if the impugned order suffers from some irregularity, the same does not require any correction as such by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.
It is well settled in law that this Court would not exercise its discretion under Article 226 of the Constitution of India, merely because some irregularity is committed by the authority in passing an order. It is not as if every irregularity is required to be corrected by this Court. This Court normally does not issue writs in exercise of its jurisdiction under Article 226 of the Constitution of India, as a matter of course. This Court also acts as a Court of equity while exercising its jurisdiction under Article 226 of the Constitution of India. Writ of Mandamus is a highly discretionary remedy and the parties invoking the jurisdiction of this Court to not only establish the infraction of a statutory provision of law but required to further establish that such infraction has resulted in invasion of a judicially enforceable right. The existence of a right is the foundation of the jurisdiction of Court to issue a writ of Mandamus.
As observed by the Supreme Court, a Court of equity, when exercising its equitable jurisdiction under Article 226 of the Constitution must so act as to prevent perpetration of a legal fraud and the Courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law. (See: Andhra Pradesh State Financial Corporation Vs. M/s. GAR Re-Rolling Mills and another, .
It is stated in the affidavit filed in support of the writ petition that the petitioner would suffer irreparable loss if the lease is not granted in its favour. It is also stated that enormous amounts were invested by the petitioner for establishing cutting and polishing unit. In the counter affidavit filed by the first respondent-Government, the details of quarry leases granted in favour of the petitioner, are stated. It is not as if the petitioner is left without any quarry lease. In fact, the petitioner got lease in the very same survey number, almost in half of the extent. In such view of the matter I do not find any merit in this contention also.
For all the aforesaid reasons, I do not find any merit in this writ petition and the same shall accordingly stand dismissed. Consequently the interim orders earlier granted by this Court on 21-4-1999 shall stand vacated. There shall be no order as to costs.