Garimidi Syam Sunder vs The State Of Andhra Pradesh
2022 Latest Caselaw 3162 AP

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          HON'BLE SRI JUSTICE U.DURGA PRASAD RAO


                      Writ Petition No.13711 of 2021
ORDER:

The writ petitioner prays for a mandamus declaring the action of

respondents in rejecting the quarry lease application of the petitioner for

Black Granite mineral over an extent of 4.00 Hectares in Sy.Nos.38/1A, 1B,

1C, 2A, 2B, 2C, 2D, 2'O' of Murikipudi Village, Chilakaluripeta Mandal,

Guntur District vide proceedings No.845/D7/2021 dated 07.04.2021 and

consequently proposing to grant quarry lease in favour of 4th respondent vide

proceedings No.6669/D7/2021 dated 28.04.2021 to the extent of 2.440

Hectares in Sy.Nos.38/1A, 1B, 2A, 2B and 38/2C of Murikipudi Village,

Chilakaluripeta Mandal, Guntur District as illegal, arbitrary and contrary to

the provisions of Rule 12 of the Andhra Pradesh Minor Mineral Concession

Rules, 1966 (for short, 'the APMMC Rules, 1966') and for such other

orders.

2. The petitioner's case succinctly is thus:

(a) On 23.04.2016, the petitioner made an application for lease of

black granite over an extent of 4.00 Hectares in the area as stated supra to

the 3rd respondent by paying prescribed application fee. The 3rd respondent

referred his application to the Tahsildar, Chilakaluripeta for issuing NOC

and the Tahsildar sought opinion of the Executive Engineer, Irrigation

Department, Guntur since the applied area was classified as 'Vaagu' and

hence, whether the said land was suitable for quarrying and NOC can be

issued. The Executive Engineer vide letter No.EE/ID/GNT/DB/TO/734

dated 05.02.2018 opined that the land was suitable for grant of quarry lease

and NOC can be issued. Accordingly, the Tahsildar, Chilakaluripeta issued

NOC vide Lr.No.RC.No.562/2017-A dated 03.03.2018. For a period of two

years nothing transpired thereafter.

(b) While so, a joint inspection and survey over applied area was held

on 17.12.2020. It was made known that that an extent of Ac.7.61 cents was

feasible for quarrying operations and the said area was demarcated and

boundaries were fixed. Thereafter, for some time no further progress was

made in the matter. The petitioner made requests on 02.02.2021 and

10.02.2021 to the respondents to process his application at the earliest since

his application was the earliest one. He received letter No.375/RTI/2021

dated 16.02.2021 informing that as per the list of applications submitted over

the subject area, the petitioner's application was at Sl.No.5 and all the

applications received earlier to his application were rejected and the

petitioner's application was also recommended for rejection and the

application dated 11.08.2020 submitted by 4th respondent was recommended

to be considered for grant of mining lease. The 4th respondent application

was received 3 years 100 days later to the application of petitioner, but same

was proposed to be considered by overlooking the priority of the petitioner's

application.

(c) Following said information, the 2nd respondent issued a show

cause notice No.854/D7/2021 dated 17.02.2021 to the petitioner calling

upon his explanation for not paying the enhanced application fee, deposit-

amount and also regarding his submission of defective sketch. The

petitioner submitted detailed explanation dated 03.03.2021 stating that the

enhanced application fees was claimed under G.O.Ms.No.56, Industries &

Commerce (MII) Department dated 30.04.2016 which is prospective in

operation but not retrospective in effect and since applications were received

prior to the date of said G.O., enhanced application fee need not be paid.

Regarding the allegations as to the wrong sketch, he stated that the sketch

enclosed was a correct one because the Tahsildar, Chilakaluripeta identified

the applied area on ground with reference to the sketch submitted by him

and the Executive Engineer, Irrigation Department has also issued NOC for

grant of quarry lease of black granite based on the said sketch. Thus,

submitting the explanation the petitioner as an abundant caution has paid the

differential application fee vide challan dated 03.03.2021 and enclosed to his

explanation. A re-drawn sketch as per the Geo-coordinates was also

enclosed. However, subsequently there was no reply from the Department.

There is no compelling cause to give priority to the 4th respondent over the

petitioner. The petitioner therefore filed W.P.No.8077/2021 dated

06.04.2021. When the matter came up for hearing on 01.07.2021, counsel

for 4th respondent informed to the Court that the application of petitioner for

quarry lease had been rejected vide proceedings No.845/D7/2021 dated

07.04.2021 of 2nd respondent. Hence, the writ petition was taken up on

06.07.2021 and dismissed as infructuous. In the meanwhile, the petitioner

on enquiry came to know that his application was rejected vide proceedings

No.845/D7/2021 dated 07.04.2021 on untenable grounds and the lease was

proposed to be granted to 4th respondent vide proceedings No.6669/D7/2021

dated 28.04.2021.

Hence, the writ petition.

3. The respondents 1 to 3 filed counter opposing the writ petition.

(a) While admitting that the petitioner submitted an application dated

22.04.2016 seeking quarry lease for Black Granite over an extent of 4.000

Hectares, it is stated that, the application of the petitioner was referred by 3 rd

respondent to the Tahsildar, Chilakaluripeta Mandal vide letter

No.2918/Q/2016 dated 23.04.2016 for issuing NOC over the subject area.

(b) Thereafter, the 3rd respondent addressed a letter No.2918/Q/2016

dated 27.06.2017 to the petitioner to pay an amount of Rs.5000/- towards

enhanced application fee and an amount of Rs.60,000/- towards enhanced

deposit-amount as required under G.O.Ms.No.56, Industries & Commerce

(M.II) Department dated 30.04.2016, but the applicant did not respond.

(c) It is further stated that the Tahsildar, Chilakaluripeta addressed a

letter in Rc.No.562/2017-A dated 03.03.2018 to 3rd respondent and

submitted classification and availability of the land after obtaining necessary

clearances from the Executive Engineer, Irrigation Division, Guntur as the

land under reference was classified as 'Vaagu'. The said NOC was received

by the 3rd respondent office on 09.03.2018 along with three other NOCs

pertaining to (1) M.Rajeswari (2) R.Lakshmamma and (3) K.Venkateswarlu.

(d) It is submitted that the petitioner failed to show the required area

of 4.000 Hectares on ground out of the earmarked area of Ac.24.37 cents in

the sketch enclosed to the statutory application of Form 'P' and the applied

sketch was not signed by the Licensed Surveyor and the differential

application fee and deposit-amount as required under G.O.Ms.No.56 was not

paid.

(e) While so, a joint inspection was held on 17.12.2020, to which the

representative of the petitioner attended, but he failed to show the area opted

on the ground as against the applied area of 4.000 Hectares duly demarcating

the entire extent of Ac.24.37 cents in Sy.No.38. In those circumstances, the

petitioner's application was recommended for rejection vide File

No.2198/Q/2016 dated 12.01.2021 of the 3rd respondent office.

(f) In the meanwhile, the 4th respondent filed an application dated

11.09.2020 for grant of quarry lease for colour granite over an extent of

4.233 Hectares in Sy.Nos.38/1, 2, 3, 4 and 552/1 & 2 of Murikipudi Village,

Chilakaluripeta Mandal, Guntur District for 20 years by duly paying the

application fee and the Tahsildar, Chilakaluripeta vide letter dated

30.11.2020 issued NOC in favour of 4th respondent for grant of land to an

extent of Ac.7.61 cents situated in Sy.Nos.38-1A, 38-2A, 38-2B, 38-2C of

Murikipudi Village. Hence, the 3rd respondent submitted combined

proposals for granting quarry lease in favour of 4th respondent and proposal

for rejection of the petitioner's application on the grounds of non-submission

of differential application fee and deposit-amount and non-submission of

properly demarcated sketch duly showing the area applied for.

(g) While the matter stood thus, the petitioner after lapse of 1½ month

from the date of joint inspection, vide his letter dated 29.01.2021 represented

before 3rd respondent that the Tahsildar issued him NOC for quarry lease

over an extent of Ac. 6.41 cents over the subject applied area and he also

made representation dated 02.02.2021 before 2nd respondent stating that his

application is having priority and the same may be considered. Basing on

the aforesaid representation and on perusal of the office records, the 3 rd

respondent submitted further report dated 09.02.2021 to 2nd respondent

reiterating the lapses of the petitioner and ultimately requested 2nd

respondent to take action on the proposals submitted in favour of 4th

respondent since the application of the petitioner though having priority but

a defective one.

(h) On receiving the above combined proposals from the 3rd

respondent, the 2nd respondent issued a show cause notice No.854/D7/2021

dated 17.02.2021 to the petitioner, and he submitted reply dated 03.03.2021

which was found to be not correct. Hence, his application was rejected vide

order dated 07.04.2021. There are no merits in the writ petition. Hence, the

same may be dismissed.

4. The 4th respondent filed counter similar to that of the other

respondents. He would contend that the lease application rejection order

passed against the petitioner is legally sustainable inasmuch as the petitioner

in terms of G.O.Ms.No.56 has not paid the application fee. Though

G.O.Ms.No.56 was issued subsequent to the filing of application by the

petitioner, still the mining authorities have to follow the rules which are in

force as on the date of consideration of the application for grant of mining

lease and in that context, as on the date of consideration of the applications,

the G.O.Ms.No.56 dated 30.04.2016 was in vogue and the petitioner has not

paid the application fee in terms thereof. Further, he did not submit the neat

sketch drawn demarcating the boundaries signed by him and qualified

surveyor. Hence, the writ petition may be dismissed.

5. Heard arguments of Sri Motupalli Vijaya Kumar, learned counsel for

petitioner, and learned Government Pleader for Mines & Geology

representing the respondents 1 to 3 and Sri O.Manoher Reddy, Senior

Counsel representing Sri G.Vivekanand, counsel for 4th respondent.

6. Severely denouncing the proceedings dated 07.04.2021 of 2nd

respondent rejecting the petitioner's quarry lease application, Sri Motupalli

Vijaya Kumar, learned counsel for petitioner would argue that the grounds

under which the application was rejected are factually and legally

unsustainable.

(a) In expatiation, he would submit that as per the show cause notice

dated 17.02.2021, the petitioner did not pay the enhanced application fee and

deposit-amount in terms of the G.O.Ms.No.56 dated 30.04.2016 and nextly

that the sketch filed along with lease application was defective, inasmuch as,

the petitioner has failed to submit the demarcated sketch clearly showing the

required area of 4.000 Hectares out of Ac.24.37 cents in several survey

numbers duly signed by qualified surveyor. Learned counsel would submit

that the petitioner has submitted a detailed explanation dated 03.03.2021

explaining the defects raised by 2nd respondent in the show cause notice.

(b) Learned counsel would submit that so far as 1st defect is

concerned, admittedly the petitioner submitted his application on 23.04.2016

and he paid application fee of Rs.7,500/- and made deposit of Rs.40,000/- @

Rs.10,000/- per Hectare as per Rule 12 of the APMMC Rules, 1966 in vogue

by then. The APMMC Rules, 1966 were amended by virtue of

G.O.Ms.No.56 w.e.f. 30.04.2016 and Rule 12(5)(a)(i) was also amended and

application fee was increased to Rs.10,000/- and deposit was increased to

Rs.25,000/- per hectare. Learned counsel would strenuously argue that the

said amendment is only prospective in nature since there was no insinuation

in the G.O. that it applies retrospectively. Hence, the G.O.Ms.No.56 will

have no effect on the application of the petitioner as same was filed prior to

the G.O. came into force. However, to avoid controversy, the petitioner

after receiving the show cause notice deposited the differential application

fee and paid deposit-amount. In that view, the mining department cannot

allege that there was short payment by the petitioner. To buttress his

contention that the subject G.O. shall be construed as prospective in

operation, he placed reliance on (i) AAPSCI Welfare Association v. The

State of Andhra Pradesh [W.P.No.40130/2017 dated 27.12.2017] passed

by the learned single Judge of the common High Court of A.P.

(c) With regard to the second defect alleged in the show cause notice,

learned counsel would argue that along with his application the petitioner

has submitted a duly demarcated sketch as per the survey and demarcation

carried out by qualified surveyor. He would argue that if no such clearly

demarcated sketch was filed along with application, the Assistant Director of

Mines & Geology / 3rd respondent would have rejected his application at the

threshold and would not have forwarded it to the Tahsildar for issuing NOC.

Therefore, it is preposterous to allege that demarcated sketch was not filed.

Further, the Tahsildar, Chilakaluripeta having appreciated the sketch,

consulted the Executive Engineer, Irrigation Department, Guntur to clarify

whether NOC could be issued since the subject land was recorded as

'Vaagu' in the revenue records. The Executive Engineer on his part having

clearly understood the sketch, gave his opinion that Vaagu was not in

existence and water comes from upstream and therefore, some extent of the

land has to be earmarked for free flow of water and remaining extent can be

safely granted for quarry lease. Ultimately, the Tahsildar, Chilakaluripeta

identified applied area on ground as per sketch and issued NOC for available

extent out of the applied area. In that view, the question of non-filing of the

demarcated sketch does not arise. However, to avoid controversy in this

aspect also, the petitioner submitted a fresh demarcated sketch in a scaled

map duly indicating the Geo-coordinates on the sketch for perusal. The

Tahsildar issued NOC for an extent of Ac.6.41 cents and during the re-

survey it was noticed that Ac.7.61 cents was available and as per the Geo-

coordinates Ac.9.32 cents is available, for which the petitioner prayed for

lease and meticulously explained in his explanation. However, the Director

of Mines & Geology / 2nd respondent has not at all appreciated the

explanation of the petitioner in a right perspective and with pre-

determination, discarded his explanation and unduly rejected the application.

He thus prayed to allow the writ petition.

7. Learned Government Pleader for Mines & Geology while supporting

the impugned proceedings would argue that the petitioner has not submitted

a detailed sketch clearly identifying the area of 4.000 Hectares out of Ac.

24.37 cents. Further, he did not pay the amended application fee and pay the

deposit immediately after G.O.Ms.No.56 was issued. Therefore, his

application was rightly rejected by 2nd respondent.

8. Learned Senior Counsel Sri O.Manoher Reddy for 4th respondent

argued that the G.O.Ms.No.56 which concerns with the amendment of

APMMC Rules, 1966 would operate retrospectively in the light of the

decisions in (1) State of Tamilnadu v. Hind Stone1 (2) V.Karnal Durai v.

District Collector, Tuticorin 2 (3) State of Kerala v. B.Six Holiday

Resorts Private Limited3 and (4) State of Kerala v. Palakkad Heritage

Hotels 4 , and hence, by the date of taking a decision on the quarry lease

application of the petitioner, the law which is in vogue has to be followed by

the mining authorities. Meaning thereby, the petitioner's application was a

defective one since the required application fee and money-deposit per

Hectare was not made in tune with amended APMMC Rules, 1966 and

therefore, the petitioner's application was liable to be rejected. Merely

because the petitioner made good the deficit at a later point of time that too

after issuing show cause notice by 2nd respondent, that will not cure inherent

defect in the original application. At best his application has to be treated as

a renewed application or a fresh application. Learned counsel would thus

argue that the decision cited by the petitioner, in the light of the decisions of

the Apex Court referred supra by him, should be held as per incuriam.

Learned counsel would further argue that since the petitioner's application

was defective one, his application was rightly rejected under the impugned

proceedings and as the 4th respondent's application was perfect in all

respects, lease was recommended in her favour. He thus prayed to dismiss

the writ petition.

MANU/SC/0394/1981 = AIR 1981 SC 711

1999 (1) SCC 475

2010 (5) SCC 186

2017 (13) SCC 672

9. The point for consideration is whether the defects pointed out in

the proceedings No.845/D7/2021 dated 07.04.2021 by the 2nd respondent

are factually and legally sustainable to reject the lease application of the

petitioner?

10. Point: Admittedly, the petitioner submitted quarry lease application

for granite over an extent of 4.000 Hectares out of Ac.24.37 cents in

Sy.Nos.38/1A, 1B, 1C, 2A, 2B, 2C, 2D, 2'O' of Murikipudi Village,

Chilakaluripeta Mandal under Rule 12(5) of the APMMC Rules, 1966 on

23.04.2016 by paying lease application fee of Rs.7,500/- and making a

deposit of Rs.40,000/- i.e., @ Rs.10,000/- per Hectare as per Rule 12(5)(a)(i)

of the APMMC Rules, 1966 in vogue by then. It is also an admitted fact that

on the same day the Assistant Director forwarded a copy of the application

to Tahsildar, Chilakaluripeta seeking NOC to consider the application.

Thereafter, there was no further progress in the matter from the end of

Mining Department. Thereafter, on the proposal of 3rd respondent vide letter

No.2206/Q/2016 dated 12.01.2021, the Director of Mines & Geology / 2nd

respondent issued the show cause notice No.854/D7/2021 dated 17.02.2021

to the petitioner stating that as per the letter of 3rd respondent, the application

of the petitioner contains following defects and hence, why his application

shall not be rejected.

(i) The applicant did not pay enhanced application fee and the deposit-amount as per the G.O.Ms.No.56 dated 30.04.2016.

(ii) The petitioner did not submit the demarcated sketch with required area in a scaled map duly signed by a qualified surveyor.

(a) The petitioner submitted a detailed explanation dated 03.03.2021.

However, having not satisfied with the aforesaid explanation, the impugned

lease rejection proceedings dated 07.04.2021 came to be issued by 2nd

respondent, which is now under challenge. In that view, it has now to be

seen whether the defects noted in the show cause notice are factually and

legally valid and if so, whether the petitioner's explanation is a befitting one.

(b) As per the show cause notice, 1st defect is that the petitioner did

not pay the renewed application fee and deposit-amount in terms of the

G.O.Ms.No.56. The petitioner initially denied his liability to pay renewed

fee and of course, later paid the differential amount in tune with

G.O.Ms.No.56 under protest. However, the respondents would contend that

the law in vogue as on the date of consideration of the petitioner's

application would apply and that since the petitioner has not paid the deficit

amount immediately after G.O.Ms.No.56 came into force and paid the

amount only after issuance of the show cause notice, his application shall be

treated only as a fresh or a renewed application. I will discuss about this

controversy a little while later. Before that, it should be made clear that

though in his show cause notice the 2nd respondent has treated non-payment

of the differential amount as per G.O.Ms.No.56 as a defect, however, in his

impugned proceedings dated 07.04.2021, on knowing from the reply of the

petitioner that he paid the enhanced application fee and made the differential

deposit-amount, did not make any comment as to whether the late payment

made by the petitioner would adversely affect his case and render his

application still a defective one. It should be noted that he rejected the

application on a different ground but not for the late payment of the

differential application fee and deposit-amount. Hence, his conclusion in the

impugned proceedings is extracted hereunder:

"From the above points it is evident that the applicant Sri G.Syam Sunder has not filed application along with a sketch drawn to the scale demarcating the boundaries duly signed by the applicant and by a qualified surveyor and also established that the valuable mineral bearing area is blocked intentionally since 2016 resulting in loss of optimum mineral revenue to the State Ex-chequer besides non exploration of mineral for Public utility. Hence, it is construed that the application deserves rejection as to make the area available for grant to the eligible and interested entrepreneurs.

Under the circumstances stated above, the quarry lease application dated 22.04.2016 filed by Sri G.Syam Sunder received by the ADM&G, Guntur on 23.04.2016 for grant of quarry lease for Black Granite an extent of 4.000 Hectares in the Sy.No.38/1A, 1B, 1C, 2A, 2B, 2C, 2D and 2O of Murikipudi Vilalge, Chilakaluripeta Mandal, Guntur District is hereby rejected under Rule 12(5)(d) of APMMC Rules, 1966 and the deposit amount is forfeited to the Government Head of Account."

(c) Thus, it is obvious the 2nd respondent rejected the petitioner's

application on the sole ground that he filed application without a sketch

drawn to the scale demarcating the boundaries duly signed by the applicant

and also by a qualified surveyor, but not on any other ground, muchless the

ground that G.O.Ms.No.56 operate retrospectively and thereby the petitioner

ought to have deposited the differential amount immediately after the said

G.O. came into force and since he did not do so, his application shall be

rejected or at best be treated as fresh application. In that view and also that

the petitioner though contended that G.O.Ms.No.56 operates only

prospectively but later paid the differential amount in terms thereof, the

discussion and decision on the controversy of prospectivity or retrospectivity

of G.O.Ms.No.56 is only of academic interest. However, for clarity sake

that aspect is discussed hereunder.

11. As stated supra, the petitioner paid application fee of Rs.7,500/-

and deposit-amount of Rs.40,000/- i.e., @ Rs.10,000/- per Hectare as per

Rule 12(5)(a)(i) of the APMMC Rules, 1966 which were in force as on the

date of application. G.O.Ms.No.56, Industries & Commerce (M.II)

Department, dated 30.04.2016 amending the APMMC Rules, 1966 came

into force w.e.f. 30.04.2016. Rule 12(5)(a)(i) was amended enhancing the

application fee to Rs.10,000/- and money deposit to Rs.25,000/- per hectare.

As rightly argued by the learned counsel for petitioner, in the said G.O. there

is no indication that the amended rules would operate retrospectively.

Hence, it appears that when 3rd respondent sent letter No.2198/Q/2016 dated

27.06.2017 to pay the differential amount in terms of the G.O.Ms.No.56, the

petitioner rightly did not respond. However, after issuance of show cause

notice dated 17.02.2021, the petitioner while giving reply dated 03.03.2021

clearly narrated this fact and of course paid the differential amount under

protest. The argument that the G.O.Ms.No.56 is prospective in operation, in

my view, is well found in view of the judgment in AAPSCI Welfare

Association (supra) cited by the petitioner.

(a) In the above decision, the facts briefly are that the petitioners

applied for mining lease of road metal, building stone and gravel under Rule

12(1) of the APMMC Rules, 1966 and paid the application fee as per the

Rules. However, subsequently G.O.Ms.No.81, Industries and Commerce

(Mines-II) Department, dated 01.06.2017 came into force amending Rule

12(1), by virtue of which the application fee and deposit-amount were

enhanced. When the ADM&G insisted the petitioners to pay the differential

amount as in the instant case, they challenged his letter on the main ground,

G.O.Ms.No.81 would operate only prospectively and will not affect the

pending applications for mining leases. The petitioners therein relied upon

(1) Federation of Indian Mineral Industries v. Union of India5. Like in

the instant case, the Government and the Mining Department argued that the

petitioners have no vested right to consider their applications and grant lease

in their favour as per the unamended rule and on the other hand, the

applications for different grants can be considered by the concerned

authorities applying the rules in vogue as on the date of consideration of the

applications, but not the Rules in force as on the date of application. The

respondents mainly relied upon the decision in State of Tamilnadu (1

supra).

(b) Be that it may, a learned single Judge of the common High Court

of Andhra Pradesh considering the decisions relied upon by the petitioner

mainly the decision in Federation of Indian Mineral Industries (5 supra),

wherein it was held that under the Mines and Minerals (Development and

Regulation) Act, 1957, no State Government has power to frame rules with

retrospective effect, upheld the contention of the petitioners therein and

allowed the writ petition.

(c) In Federation of Indian Mineral Industries (5 supra), the Apex

Court was considering the question whether the State Governments could

establish District Mineral Foundations (DMFs) in their respective States

under the Mines and Minerals (Development and Regulation) Act, 1957

from a retrospective date prior to the date of notification. In this regard, the

Apex Court while considering the rule making power conferred under

(2017) 16 SCC 186

Sections 13 & 15 of the Mines and Minerals (Development and Regulation)

Act, 1957 on Central and State Governments respectively held that those

provisions do not confer the powers on respective Governments to make

rules retrospectively. It was observed as under:

"28. On the facts before us, it is clear that Section 15 of the MMDR Act empowers the State Government to make rules for regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith. This section does not specifically or by necessary implication empower the State Government to frame any rule with retrospective effect. Also, the MMDR Act does not confer any specific power on the State Government to fictionally create the DMF deeming it to be in existence from a date earlier than the date of the notification establishing the DMF. Therefore, it must follow that under the provisions of the MMDR Act that we are concerned with, no State Government has the power to frame a rule with retrospective effect or to create a deeming fiction, either specifically or by necessary intendment.

29. Similarly, Section 13 of the MMDR Act does not confer any specific power on the Central Government to frame any rule with retrospective effect. Section 9-B(5) and (6) read with clause (qqa) inserted in Section 13(2) of the MMDR Act enable the Central Government to make rules to provide for the amount of payment to be made to the DMF established by the State Government under Section 9-B(1) of the MMDR Act. None of these provisions confer any power on the Central Government to require the holder of a mining lease or a prospecting licence-cum-mining lease to contribute to the DMF with retrospective effect. Therefore, even the scope and extent of the rule-making power of the Central Government is limited."

(d) Needless to emphasize that the decision in AAPSCI Welfare

Association applies with all fours to the case on hand, inasmuch as, the issue

now also relates to the retro-operability of the APMMC Rules, 1966. In this

context, the contention of Sri O.Manoher Reddy, learned counsel for 4th

respondent, that the above decision is per incuriam in the light of the

decisions cited by him cannot be accepted. The decisions relied upon by

learned counsel would no doubt propound the general principle that the

concerned authorities shall apply the rules in vogue as on the date of

consideration of the applications but not the ones in force on the date of

application. There is no demur with the aforesaid principle. However, it

should be noted that so far as the rule making power of the Central

Government and the State Governments under the Mines and Minerals

(Development and Regulation) Act, 1957 is concerned, the Apex Court in

Federation of Indian Mineral Industries (5 supra) has in clear tone held

that those sections do not confer any specific power on the respective

governments to make any rule with retrospective effect. Since the said

decision was rendered by the Full Bench, it has to be followed. Thus, at the

outset, the petitioner is not required to pay the enhanced application fee and

deposit-amount. However, he paid the said amount after receiving the show

cause notice and in the impugned order the 2nd respondent did not consider

this late payment as a defect on the part of the petitioner. So, the above

discussion is only of academic in nature.

(e) Then, the only ground on which the petitioner's application was

rejected was that the petitioner did not file a sketch drawn to the scale

demarcating the boundaries duly signed by himself and qualified surveyor.

The petitioner submitted a stout reply stating that he in fact he submitted a

demarcated sketch as per the survey and demarcation carried out by

qualified surveyor along with lease application which was considered by the

Tahsildar and Executive Engineer, Irrigation Department and ultimately

NOC was issued. On perusal of the record, I find force in his contention.

As soon as receiving the lease application from the petitioner, the 3rd

respondent addressed a letter in Rc.No.2198/Q/2016 dated 23.04.2016 to the

Tahsildar, Chilakaluripet for grant of NOC. As rightly contended, if the

petitioner did not file the sketch, the 3rd respondent ought to have returned

his application with the said objection without referring the same to the

Tahsildar. Further, the letter of the Tahsildar in Rc.No.562/2017-A dated

21.07.2017 to the Executive Engineer, Irrigation Department shows that

since the land sought for lease is classified as 'Vaagu' in the revenue

records, the Tahsildar sought clarification as to whether the applied land will

be suitable for quarrying purpose. If the sketch was not there, the Tahsildar

would not have sought for such advice. The Executive Engineer in turn

addressed letter No.EE/ID/GNT/DB/TO/734 dated 05.02.2018 to the

Tahsildar and clarified that there were no traces of water course passing

through the proposed land in Sy.No.38 on the ground and suffice if 10

metres width of land is left for draining out for free flow of water from

upstream side to downstream side. He concluded that granting of lease of

Ac. 10.00 cents in Sy.No.38 will not affect any flow of water. Thereupon,

the Tahsildar in his letter in Rc.No.562/2017-A dated 03.03.2018 has stated

that out of Ac.24.37 cents in Sy.No.38 some land was already assigned and

an extent of Ac.6.41 cents was available for granting quarry lease.

(f) The above correspondence, copies of which are filed along with

material papers, would clearly manifest that the petitioner has filed

demarcated sketch. Otherwise his application would have been returned at

the threshold. Even otherwise, after receiving the show cause notice, he

submitted another demarcated sketch. Therefore, the impugned proceedings

of the 2nd respondent rejecting the petitioner's application on the sole ground

that the petitioner did not submit demarcated sketch is unsustainable and

same is liable to be set aside and so also the proposal of 2nd respondent dated

28.04.2021 to grant lease to 4th respondent, a subsequent applicant, in

respect of same area applied by the petitioner is also liable to be set aside.

12. In the result, this writ petition is allowed and the proceedings

No.854/D7/2021 dated 07.04.2021 of 2nd respondent rejecting the lease

application of the petitioner and also his proposal vide notice

No.669/D7/2021 dated 28.04.2021 granting lease in favour of 4th respondent

are hereby set aside with a direction to grant lease in favour of the petitioner

as per his lease application in terms of the NOC issued by the Tahsildar,

Chilakaluripet and enter into lease agreement within four (4) weeks from the

date of receipt of a copy of this order. No costs.

As a sequel, interlocutory applications pending, if any, shall stand

closed.

_________________________ U.DURGA PRASAD RAO, J

30.06.2022 MVA