The State of Andhra Pradesh, Represented by its Secretary, Industries and Commerce (Mines-II) Department, A.P.Secretariat, Velagapudi-522503, Guntur District, A.P. V. AAPSCI Andhra Pradesh Stone Crushing Industry Welfare Association, Vijayawada

WA/747/2018

AI Insights

The case revolves around a writ appeal by the State of Andhra Pradesh against the order of a learned single Judge, which had declared that the amendment to Rule 12(1) of the A.P. Minor Mineral Concession Rules, 1966, is prospective and does not affect pending applications for mining leases. The amendment, introduced by G.O.Ms.No.81, increased the application fee and required a deposit per hectare, which the state sought to apply retrospectively to pending applications. The court's decision was based on precedents from the Supreme Court, emphasizing that laws and amendments should not apply retrospectively unless explicitly stated, to avoid disrupting the expectations and arrangements made under the old laws.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 806100 (HC-ANDHRA_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 20-04-2020
• Assessment Year: misc
• Other Referred Cases: Commissioner of Income Tax (Central)-I, New Delhi v. Vatika Township Pvt., Ltd., Federation of Indian Mineral Industries v. Union of India (UOI), Panchi Devi v. State of Rajasthan
• Laws Referred To: A.P. Minor Mineral Concession Rules, 1966
• Result in Favour of: Respondent
• Court: HIGH COURT
• Department Lawyers: HARI SREEDHAR
• Assessee Lawyers: GOVERNMENT PLEADER FOR MINES GEOLOGY
• Keywords: Mandamus; Mining lease; Retrospective effect; Subordinate legislation; Application fee
• Section: 12(1)

Judgement Text

" 1 HIGH COURT OF ANDHRA PRADESH : AMARAVATI CHIEF JUSTICE J.K. MAHESHWARI & JUSTICE NINALA JAYASURYA WRIT APPEAL No.747 of 2018 The State of Andhra Pradesh, Represented by its Secretary, Industries and Commerce (Mines-II) Department, A.P.Secretariat, Velagapudi-522503, Guntur District, A.P., and others. .. Appellants Versus AAPSCI Andhra Pradesh Stone Crushing Industry Welfare Association, Vijayawada, (Regd.No:113/2017), D.No.54-20/4-19, Plot No.72, Road No.5, Kanakadurga Gazetted Officers Colony, Vijayawada, Krishna District, Andhra Pradesh, Represented by its Secretary, and others. .. Respondents Counsel for the Appellants : Government Pleader for Mines & Geology Counsel for respondents : Sri Hari Sreedhar ORAL JUDGMENT Dt: 20.04.2020 per Ninala Jayasurya, J This writ appeal is preferred by the state against the order of a learned single Judge in W.P.No.40130 of 2017 dated 27.12.2017, wherein the writ petition seeking a mandamus declaring that the amendment made to Rule 12(1) of A.P. Minor Mineral Concession Rules, 1966 through G.O.Ms.No.81, Industries and Commerce (Mines-II) Department, dated 01.06.2017 issued by the first respondent is only prospective and will not affect pending applications for grant of Mining Lease and consequently to set aside the proceedings of the 4th respondent in Letter No.1680/Q/2017 2 dated 04.07.2017 issued to the 2nd petitioner, Letter No.5719/Q/2010 dated nil and Letter No.4166/Q/2010, dated 05.09.2017 issued to the 3rd petitioner and Letter No.4167/Q/2010 dated 05.09.2017 issued to the 4th petitioner, was allowed. The brief facts of the case that fell for consideration before the learned single Judge are set out hereunder: The 1st writ petitioner/1st respondent is a registered welfare association of holders of mining leases and stone crushers in the State of Andhra Pradesh and writ petitioners 2 to 4 are some of the members of the said association. The 2nd writ petitioner/firm filed an application dated 18.03.2017, for grant of mining lease for road metal, building stone and gravel in Sy.No.53 of Pandrangi Village, Padmanabham Mandal, Visakhapatnam District, duly paying the application fee as per Rule 12(1) of A.P.Minor Mineral Concession Rules, 1966 [hereinafter referred to as ‘Rules of 1966], which were in vogue as on the date of said application. Similar applications were filed by the 3rd and 4th writ petitioners dated 30.10.2010 and 03.11.2011, respectively. While the said applications of the writ petitioners were pending, Government vide G.O.Ms.No.81 Industries and Commerce (Mines-II) Department, dated 01.06.2017, amended Rule 12 (1) of ‘Rules of 1966’. By virtue of the said amended Rule, applications for quarry leases shall be accompanied by Treasury or Bank challan for Rs.5,000/- towards non-refundable application fee and deposit of Rs.10,000/- per every hectare or part thereof which shall be deposited in a bank account. Thus by virtue of the amended Rule, application fee was enhanced from Rs.1,000/- to Rs.5,000/- and the requirement of deposit of Rs.10,000/- per every hectare or part thereof was introduced. Further the 4th respondent/4th appellant addressed letters dated 04.07.2017, 3 05.09.2017 and 05.09.2017, respectively to the writ petitioners 2 to 4 stating that they are required to pay the difference of application fee as indicated in the said letters and deposit amount @ Rs.10,000/- per hectare as per amended Rule 12(1) of Rules of 1966 and failing compliance of the said requirements, further action would be taken. After receiving the said letters, as it was learnt that the concerned officials of the Mining Department are contemplating to issue similar notices to all the persons whose applications for grant of quarry leases are pending as on the date of amendment to Rule 12(1) of Rules of 1966, writ petition is filed, inter alia, to declare that amended Rule 12(1) of Rules of 1966, is only prospective and will not affect pending applications for grant of mining leases and for other reliefs. The learned single Judge, after considering the rival contentions, allowed the writ petition, by rejecting the arguments advanced on behalf of the respondents, inter alia, relying on various Judgments of the Hon’ble Supreme Court. Aggrieved by the said order, the respondents in the writ petition filed the present appeal. Heard the learned Government Pleader for Mines and Geology appearing on behalf of appellants and the learned counsel for the respondents. The learned Government Pleader, while laying much emphasis on the contention that the learned single Judge allowed the writ petition even without a counter-affidavit on behalf of the appellants/respondents, urged further that issuance of G.O.Ms.No.81, Industries and Commerce (Mines-II) Department, dated 01.06.2017, is well within the competence of the Government. The learned Government Pleader contended that the learned single Judge, had not considered the amendment in a correct perspective 4 and erred in not appreciating that the enhancement of application fee is in tune with the changed policy of the Government. He also contended that the communications impugned in the writ petition are issued as per the existing laws applicable as on the date of disposal of the applications and therefore, the conclusion of the learned single Judge to the effect that enhancement of application fees cannot be made applicable with retrospective affect, is not tenable. The learned Government Pleader further submitted that various findings of the learned single Judge are without any valid basis and the order under appeal deserves to be set aside. We have considered the arguments advanced on behalf of the learned Government Pleader appearing on behalf of appellants. The first and foremost contention raised by the learned Government Pleader is that the learned single Judge decided the matter without allowing the authorities to file counter. It is not discernible from the record that despite the request seeking time to file counter, the learned single Judge proceeded with the matter. On the other hand, the learned single Judge heard the arguments of the appellants/respondents at length and arrived at conclusions on detailed examination of the same. Under the said circumstances, the contention of the learned counsel for the appellants, merits no consideration. So far as the other contentions that since the applications are pending, the policy regarding payment of enhanced application fee is applicable to the same, the learned single Judge dealt with the said issue in detail and gave cogent reasons for rejecting the contentions advanced on behalf of the appellants. The learned single Judge, while opining that the amended Rule does not indicate that it is retrospective in operation, observed that: 5 “the law passed today cannot apply to the events of the past as the applicants for grant of quarry leases made applications on the belief that they will be entitled to proceed in the matter in accordance with the existing law and obviously arranged their affairs and made plans by relying upon the existing law. If the amended Rule is retrospectively applied to the present facts of the case, their plans would be upset and the affairs they arranged relying on the existing law would suffer a set back as the application of the amended Rule retrospectively would change the character of the past transaction carried on upon the faith of the then existing law.” The above said view of the learned single Judge is based on the Judgment of the Hon’ble Supreme Court in Commissioner of Income Tax (Central)-I, New Delhi v. Vatika Township Pvt., Ltd.1. Further the learned single Judge also placed reliance on Paragraphs 23 and 24 of the Judgment of Hon’ble Supreme Court in Federation of Indian Mineral Industries v. Union of India (UOI)2 and it would be appropriate to reproduce the same: “23. 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 1 (2015)1 SCC 1 2 2017 (12) SCALE 586 6 retrospective effect or to create a deeming fiction, either specifically or by necessary intendment. 24. 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 9B(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 9B(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.” The above ratio of the Hon’ble Supreme Court in the Judgments referred supra relied on by the learned single Judge with regard to the powers to give retrospective effect to subordinate legislation in the form of rules or regulations or notifications, is applicable, in the absence of any specific statutory power conferred on the State Government to frame/give effect to any rule with retrospective operation like in the present case. The learned single Judge also placed reliance on the decision of the Hon’ble Supreme Court rendered in Panchi Devi v. State of Rajasthan3, which was referred to in Federation of Indian Mineral Industries [2 supra] and noted that: “Delegated legislation is ordinarily prospective in nature and a right or a liability created for the first time cannot be given retrospective effect.” 3 (2009)2 SCC 589 7 The learned single Judge, on the ultimate analysis of the issues raised in the writ petition, while resting his conclusions in the light of the Judgment in Federation of Indian Mineral Industries’ case [2 supra], allowed the writ petition. On a careful examination of the order passed by the learned single Judge vis-à-vis the arguments advanced by the learned Government Pleader, it is evident that the learned single Judge had meticulously considered the submissions/contentions of the learned Government Pleader. As noticed by this Court, the learned single Judge elaborately dealt with the issues involved in the writ petition and arrived at the conclusions in terms of the Judgment of the Hon’ble Supreme Court in Federation of Indian Mineral Industries’ case [2 supra] following the decision in Panchi Devi’s case [3 supra]. The learned single Judge, in our considered view, had dealt with the matter in a correct perspective and passed the order under challenge. In such view of the matter, the contentions advanced by the learned Government Pleader merit no consideration. Further, the scope of interference in intra court appeal under clause 15 of Letters Patent is limited, unless the findings recorded by the learned single Judge are illegal, irregular or perverse. Reliance can be placed in this regard on a Judgment of a Division Bench of this Court, reported in N.Seshaiah v. South Central Railway and another4. As discussed earlier, the learned single Judge had undertaken a detailed examination of the issues involved and arrived at conclusions placing reliance on the Judgments of the Hon’ble Supreme Court. As the 4 2019(9) ALT 84 8 issues raised in the writ petition relate to legal aspects, the learned single Judge has not committed any error in undertaking the adjudication of the same without inviting a counter or for that matter, in the absence of counter on behalf of respondents/ appellants, and the same is not fatal as sought to be canvassed by the learned Government Pleader. For the foregoing reasons, we have no hesitation to hold that the order of the learned single Judge is absolutely valid, legal, based on sound reasoning, tenable and does not suffer from any illegality or perversity, warranting interference in exercise of powers under Clause 15 of Letters Patent. Accordingly, the writ appeal fails and the same is dismissed confirming the order passed by the learned single Judge in W.P.No.40130 of 2017, dated 27.12.2017. As a sequel, all the pending miscellaneous applications shall stand closed. No order as to costs. J.K. MAHESHWARI, CJ NINALA JAYASURYA, J AKC 9 CHIEF JUSTICE J.K. MAHESHWARI & JUSTICE NINALA JAYASURYA WRIT APPEAL No.747 of 2018 Dt: 20.04.2020 Akc "