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2009 DIGILAW 154 (GUJ)

NAGINBHAI GOVINDBHAI KAHAR v. STATE OF GUJARAT

2009-03-12

K.A.PUJ

body2009
JUDGMENT 1. Since the common issue is involved in these four petitions and they are heard together, the same are being disposed of by this common judgment and order. 2. The facts are taken from Special Civil Application No.2165 of 2009 for convenience. 3. Heard Mr.Ashim Pandya, learned advocate appearing for H.L.Patel Associates, for the petitioners and Ms.Trusha Patel, Mr.Neeraj Soni and Mr.Pranav Trivedi, learned Assistant Government Pleaders, appearing for the respondent State on an advance copy being given to the Government Pleader's Office. 4. It is the case of the petitioners that the petitioners were granted quarry lease for excavating sand which is minor mineral, by the order of the Collector dated 17.1.2004. The petitioners were granted lease in the basin of the river Tapi, opposite to Survey Nos.560 and 561 of Village : Adajan. Pursuant to the order granting lease for a period of three years in favour of the petitioner, a Lease Deed was executed on 10.4.2004. 5. The petitioner started mining operation of excavating sand from the leased area. For the purpose of transportation of vehicles for carrying out the excavated sand, the lease holder is required to prepare an approach road. The said approach road is made up of sand and clay, which washes away every year during the monsoon season. The strength of this approach road cannot withstand the force of water in any event and, therefore, it does not create any situation whereby it might cause environmental problem or any injury or loss to any other person. The leased area of the petitioner is situated in the downstream after the Singanpore weir cum Causeway. After the lease area, river Tapi meets the Arabian Sea. 6. It is necessary to note that under the agreement of lease certain privileges and liberties are given to the lease holders. The condition No.4 in part II of the Lease Deed it is clearly provided that the lease holder shall be at liberty to make any tramways, railways, roads and other ways in or over the lands and to maintain and go and re-pass with or without horse, cattle, wagons, locomotives or other vehicles over the same. ( or any existing tramways, railways, roads and other ways in or over the said lands) on such conditions as may be agreed to. ( or any existing tramways, railways, roads and other ways in or over the said lands) on such conditions as may be agreed to. It is also open to the lease holder to prepare inclines, levels and other works for the purpose of quarrying. The construction of small approach road for the purpose of sand excavation from the leased area is a must since the level of leased area is little down than the bank of the river Tapi. 7. It is also the case of the petitioner that such kind of approach roads are created by the Government authority also and the Government charges certain amount for the use of such approach roads from the lease holders. The lease was granted to the petitioner after having satisfied the various aspects pertaining to environment. The competent authority issued letter dated 5.7.2004 to the petitioners calling upon them to remove the small approach road made by the petitioner. The petitioners by their letters informed the Geologist, Surat that the apprehension mentioned in the show cause notice is wholly unwarranted. The approach road made by the petitioners can never cause any problem as stated in the show cause notice. The petitioners were of the view that the authority would consider the explanation and would not insist for the removal of the approach road. However, without considering the explanation submitted by the petitioners as well as the provisions of the Rules and conditions of the lease, the Collector, vide his order dated 16.8.2004 terminated the lease of the petitioners with immediate effect. The petitioners, thereafter, removed the small approach road made by them for the purpose of quarrying as suggested by the competent authority in the show cause notice. The petitioners, thereafter, filed appeal before the Additional Director (Appeals), the respondent No.2. The said appeals were dismissed by the respondent No.2 vide his order dated 16.10.2007. The petitioners, thereafter, approached the State Government by way of Revision Applications, which were also rejected vide order dated 14.2.2009. 8. Being aggrieved by the order passed by the Revisional Authority, the petitioners have filed the present petitions before this Court. 9. Mr.Ashim Pandya, learned advocate appearing for the petitioners, has submitted that the impugned orders passed by the respondent authorities are contrary to the facts of the case and provisions of law. 8. Being aggrieved by the order passed by the Revisional Authority, the petitioners have filed the present petitions before this Court. 9. Mr.Ashim Pandya, learned advocate appearing for the petitioners, has submitted that the impugned orders passed by the respondent authorities are contrary to the facts of the case and provisions of law. It is further submitted that the Revisional Authority has not considered at all the fact that the so-called approach road had been removed by the petitioners subsequently and, therefore, the extreme penalty of termination of the lease was wholly unwarranted and it was violative of Article 14 of the Constitution of India. He has further submitted that the Revisional Authority has not considered the provisions contained in Rule-22, Sub Clause XXV, while confirming the order of the Additional Director, Geology and the Collector. Sub-Clause XXV provides that the competent officer may terminate the lease for the breach of any of the conditions contained in the lease-deed or in the alternate, impose a penalty not exceeding Rs.500/-. He has submitted that, in the present case the authorities concerned have failed to appreciate that why the lesser penalty in the form of fine would not have served the purpose. He has further submitted that the Revisional Authority has simply decided the case on the basis of the orders passed by the lower authorities and documentary evidence on the record. The petitioners were not given a fair opportunity to present their case. The petitioners were simply asked one or two questions and then they were asked to leave without allowing them to submit their explanation in person. The procedure adopted by the Revisional Authority was highly unfair and the same was also violative of the principles of natural justice. He has further submitted that all the authorities have failed to consider general provisions contained in part IX of the Lease Deed. 10. Mr.Pandya further submitted that the authorities concerned have not appreciated that once Lease Deed is executed in favour of the petitioners, it would be highly unjust to deprive of the petitioners of their right to carry on business on the ground of a breach of the condition of the lease deed which is very trivial in nature. 10. Mr.Pandya further submitted that the authorities concerned have not appreciated that once Lease Deed is executed in favour of the petitioners, it would be highly unjust to deprive of the petitioners of their right to carry on business on the ground of a breach of the condition of the lease deed which is very trivial in nature. It is further submitted that it is settled law that whenever any of the fundamental freedoms of a citizen is being curtained or taken away by the action of the State or its authority, the State is required to justify any restriction placed on the said freedom. Further, while taking away or imposing restriction on the said freedom, the authorities are required to apply the least restrictive choice. In the present case, the authorities have failed to strike the balance between the fundamental freedom of the petitioner and the restriction imposed by it in exercise of their powers under the Rules. He has, therefore, submitted that the action of the respondents is violative of Articles 14, 19 and 21 of the Constitution of India. Lastly, he has submitted that area of lease granted in favour of the petitioners is still available for excavation of sand since the petitioners were pursuing their legal remedies. The decision to terminate the lease of the petitioner is ex-facie disproportionate to the alleged breach and hence, the same deserves to be quashed and set aside. The lease area has not been re-notified under Rule 18 of the Rules and hence, the interim relief prayed for in these petitions deserves to be granted and the petitions deserve to be admitted and allowed. 11. Ms. Trusha Patel alongwith Mr.Neeraj Soni and Mr.Pranav Trivedi, learned Assistant Government Pleaders appearing for the respondent State has submitted that all the three authorities have given concurrent findings and have taken concurrent decision which cannot be interfered with by this Court while exercising its extraordinary writ jurisdiction under Articles 226 and 227 of the Constitution of India. She has further submitted that there is no dispute about the fact that the petitioners have committed breach of terms and conditions of lease granted in their favour. She has further submitted that there is no dispute about the fact that the petitioners have committed breach of terms and conditions of lease granted in their favour. There is also no dispute about the fact that before termination of lease the petitioners were given show cause notices and after consideration of the explanation given by the petitioners to the said show cause notices the respondent No.2 Collector has terminated the lease. In the show cause notice itself, a very serious breach of term of the lease deed was alleged against the petitioners. Without any prior permission of the competent authority, the petitioners have constructed bridges and/or approach roads in the basin of river Tapi which would endanger the public safety and security. Despite the said show cause notices, the bridges were not removed and hence the competent authority has no other alternative but to terminate the said lease. She has further submitted that similar issue arose before this Court earlier and while dismissing the petition filed by the petitioners this Court, in its judgment in the case of Chetankumar Bhikhubhai Prajapati and others Vs. State of Gujarat and others, reported in AIR 2005 Gujarat 240 took the view that palas constructed by the petitioners are absolutely illegal and it is contrary to the provisions of the Act and Rules framed therein. It is further held that at the time of flood such palas are very dangerous to the people and one has to take into consideration the broad public interest and safety while deciding such case. She has, therefore, submitted that the authorities have taken the right decision and it does not call for any interference by this Court. 12. Having heard learned advocate and learned Assistant Government Pleaders appearing for the parties and having gone through the orders passed by the authorities as well as the decision of this Court in the case of Chetankumar Bhikhubhai Prajapati (Supra) the Court is of the view that strictly speaking the merits of the matter are not required to be gone into especially when the lease period is already expired. The lease was granted on 10.4.2004. It was for the period 3 years. Thus, in April, 2007 the petitioners are not entitled to carry on the mining activities in the leased area. The lease was granted on 10.4.2004. It was for the period 3 years. Thus, in April, 2007 the petitioners are not entitled to carry on the mining activities in the leased area. The argument of Mr.Pandya in this regard was that had the lease not been terminated the petitioners would have been entitled to apply for renewal of lease and such renewal is automatic. Part-VIII of Gujarat Minor Mineral Rules, 1966 deals with the covenants of the State Government. Clause-3 deals with renewal of lease. It says that, if the lessee/lessees be desirous of taking a renewed lease of the premises hereby demised or of any part or parts of them for a further term on the expiry of the term hereby granted and if he/they give the competent officer an application in writing 90 days before the expiry of the lease as prescribed in the said Rules, and shall pay the rents and royalties hereby reserved and shall observe and perform the several covenants and agreements herein contained and on the part of the lessee/lessees to be observed and performed upto the expiration of the term hereby granted the Competent Officer will upon the request and at the expense of the lessee/lessees and upon his/their executing and delivering to the State Government if required a counterpart thereof execute and deliver to the lessee/lessees a renewal lease of the said premises for the further term not exceeding the term of this lease at such rents and royalties and on such terms and subject to such covenants and agreements, including this present covenant to renew as shall be in accordance with the Rules applicable to the lease area. The submission of Mr.Pandya was that under this renewal clause, the petitioners would have applied for renewal of the lease. 13. The broad submissions of Mr.Pandya are three fold; (1) That the order of termination was passed by the competent authority before the expiry of period of 60 days from the date of issuance of show cause notice, which is violative of Clause-3 of Part-IX. (2) The penalty in term of termination of lease is disproportionate to the breach alleged to have been committed by the petitioners. (2) The penalty in term of termination of lease is disproportionate to the breach alleged to have been committed by the petitioners. The lessor punishment could have been imposed by the authorities in view of the provisions contained in Clause-1 of part-IX which says that in case of breach of any of the conditions of the lease other than mentioned in Clauses 2 and 3 of this part, then the Competent Officer may require the lessee/lessees or his/their transferees or assignees to pay penalty not exceeding an amount equivalent to twice the amount of the annual dead rent specified under Clause-2, Part-V and (3) By virtue of termination of lease the petitioners could not have applied for renewal of lease and/or their application for renewal could not have been considered by the competent authority. 14. If the above objections raised by Mr.Pandya on behalf of the petitioners were taken into consideration in light of the provisions of the Act and the Rules as well as facts and evidence found on record by the respondent authorities, it is very obvious that the entire procedure of granting quarry lease was defective. Not only this, the petitioners have made attempt to mislead the authorities. No permission of the competent authority was taken before constructing palas in the basin of river Tapi. This was contrary to Clause-6 of Part-II and Clause-3 of Part-IX as well as against the provisions contained in Clause-10 of Rule-22 of Gujarat Minor Mineral Rules, 1966. Clause-6 of Part-2 of the lease agreement states that, liberty and power for or in connection with any of the purposes mentioned in this part but subject to the rights of any existing or future lessees and with the written permission of collector or any officer authorised by the State Government in that behalf to appropriate and use water from any streams, water-courses, springs or other sources in or upon the said lands and to divert step up or dam any such stream or watercourse and collect or impound any such water and to make construct and maintain any water course, culverts, drains or reservoirs but not as so to deprive any cultivated land, villages, buildings or watering places for livestock of a reasonable supply of water as before accustomed nor in any way to foul or pollute any streams or springs. Provided that the lessee/lessees shall not interfere with the navigation in any navigable stream nor shall divert such stream without the previous written permission of the State Government. Admittedly the petitioners have not obtained any previous written permission of the State Government and by construction of palas in the basin of river Tapi, stream of water of river Tapi gets diverted. This is also contrary to Clause-3 of Part-IX of the lease agreement. Though the period of 60 days is prescribed in Clause-3 the breach alleged was not removed by the petitioners. The appellate authority has inquired in this regard and found that the submissions made by the petitioners are not correct and palas were not removed within the stipulated period, even when the appeals were pending before the Appellate Authority. It is also found from the order passed by the Additional Director (Appeals) Geology Science and Mineral Department that the provisions contained in Clause-10 of Rule-22 of Gujarat Minor Mineral Rules were also violated and necessary permission which is required to be taken in respect of notified river was not obtained. For mining purpose river Tapi is considered to be a notified river and as per Section-5 of Irrigation Act such permission is required to be obtained. Even Sub Rule-1 of Rule-11 of Gujarat Minor Mineral Rules, 1966 also states that, an opinion of Irrigation Department is required to be obtained. Considering all these aspects there is no infirmity in the order passed by the Competent Authority. Even the ground that has been strongly pressed into service that the requisite period of 60 days was not granted before terminating the lease agreement in question does not vitiate impugned orders terminating and/or confirming the termination of lease by the respondent authorities. 15. So far as the second submission of Mr.Pandya that the punishment imposed is disproportionate to the breach alleged to have been committed by the petitioners is concerned, all the three authorities have considered this aspect and they have not found any substance in this submission. This Court is also in agreement with the findings arrived at by the authorities below. The breach committed by them is not so simple or it cannot be considered to be a minor breach. It is a very serious matter and without any permission of the authorities the petitioners have constructed such palas. This Court is also in agreement with the findings arrived at by the authorities below. The breach committed by them is not so simple or it cannot be considered to be a minor breach. It is a very serious matter and without any permission of the authorities the petitioners have constructed such palas. The obvious intention was to alter the flow or stream of the water, which would cause damage to the life and properties of the people at large. The authorities have, therefore, rightly taken the decision. Since the lease was terminated on a very sound footing, there is no question of renewal of the lease once having found by this Court that the lease period is already over during the pendency of these proceedings. Since this Court is of the view that even on merit decision taken by the authorities is quite justified, there is no question of entertaining the third submission made by Mr.Pandya that had the lease not been terminated the petitioners would have applied for renewal of lease as a matter of right. 16. Apart from all these submissions, which have been turned down by this Court on merits, the view taken herein is supported by the decision of this Court in the case of Chetankumar Bhikhubhai Prajapati (Supra) wherein the Court has taken the view that without prior permission of the authority the construction of palas in the basin of river Tapi is itself an illegal activity. In the present petition, since the petitioners were indulged in such illegal activities by constructing palas and thereby restricting the natural flow of water, this Court is of the view that the respondent authorities are quite justified in terminating the lease agreement granted in favour of the petitioners. 17. All the four petitions are, therefore, dismissed at the threshold.