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Gujarat High Court · body

2014 DIGILAW 653 (GUJ)

ARVINDBHAI THAKORBHAI KAYASTH v. STATE OF GUJARAT

2014-06-16

C.L.SONI

body2014
JUDGMENT 1. In this petition filed under Article 226 of the Constitution of India, the petitioner has challenged the order dated 25.4.2014 passed by the respondent No.3-Geologist, Vadodara refusing the renewal quarry lease of the petitioner. 2. Case of the petitioner that the petitioner was granted quarry lease by order dated 18.9.2006 by the respondent No.2 in respect of the land admeasuring 10 Hectors in Narmada river bet bearing land Survey No.424 of village Sayar, Taluka Karjan, District Vadodara. Lease agreement for the same was executed on 27.11.2006 between the petitioner and respondent No.2 for three years. The petitioner was obliged to apply for renewal of the lease in advance by 180 days. However, because of unavoidable adverse circumstances, the petitioner could make application for renewal of the lease only on 2.7.2010, which was delayed by 241 days. The petitioner could not apply in time because he suffered prolapsed lumbar inter vertebral disc with bilateral radiculopathy with minimal urological deficit. The petitioner was under treatment of Dr. Manish R. Shah, Consultant and Orthopedic Surgeon of Vadodara from 22.5.2009 to 1.7.2010 and thus, he could apply for renewal on 2.7.2010. The respondent No.2 confirmed the factum of receipt of the renewal application under its communication dated 24.1.2011. However, the respondent No.2 called upon the petitioner to explain delay in preferring renewal application, which the petitioner explained vide his reply dated 31.1.2011. The respondent No.2, however, rejected the application without affording opportunity of hearing to the petitioner by order dated 10.5.2011, against which the petitioner preferred revision application before the respondent No.1, which was also rejected by order dated 14.6.2013 on the ground of delay. The petitioner, therefore, preferred Special Civil Application No.11636 of 2013 before this Court and this Court allowed the said petition and remanded the matter to decide the application of the petitioner afresh after giving opportunity of hearing to the petitioner. However, the respondent No.2 rejected the renewal application on 21.2.2014 by non-speaking order and in complete disregard of the order dated 20.9.2013 passed in Special Civil Application No.11636 of 2013. However, the respondent No.2 rejected the renewal application on 21.2.2014 by non-speaking order and in complete disregard of the order dated 20.9.2013 passed in Special Civil Application No.11636 of 2013. The petitioner, therefore, challenged the said order by preferring Special Civil Application No.3682 of 2014, which was allowed by this Court and the order dated 21.2.2014 passed by respondent No.2 was quashed and set aside and the respondent No.2 was directed to consider the case of the petitioner in accordance with law and under Rule 17(4) of the Gujarat Minor Mineral Concession Rules, 2010 (‘the Rules’ for short). The petitioner once again submitted oral and written submissions and prayed to condone the delay in making application for renewal of the lease. However, by order dated 25.4.2014, the renewal application of the petitioner was rejected on the ground of delay. The petitioner has thus challenged this order refusing to renew his lease. 3. The petition is opposed by affidavit-in-reply dated 22.5.2014 filed on behalf of respondent Nos.2 and 3 stating that under Rule 17(4) of the Rules, renewal application is to be made at least 180 days before date of completion of the lease tenure and for delay of such period, the authority is empowered to condone delay but renewal application made after expiry of the lease tenure, i.e. after a period of more than 180 days, cannot be entertained in any circumstances. The petitioner made renewal application after expiry of the lease period and therefore, application for condonation of delay is not considered. It is also pointed out that the decision rendered in Special Civil Application No.12329 of 2008 relied on by the petitioner was prior to coming into force of the Rules and therefore, the said decision is not applicable to the case of the petitioner. 4. I have heard learned advocates for the parties. 5. Learned advocate Mr. P.J. Kanabar for the petitioner submitted that the respondent No.3 had passed the impugned order in total disregard of the orders passed by this Court in earlier two petitions filed by the petitioner and also in disregard of the view taken by this Court as regards renewal of the lease on delayed application in Special Civil Application No.12329 of 2008. Mr. Mr. Kanabar submitted that not only the rules operated for the purpose of renewal of the lease prior to the present Rules provided for condonation of delay on satisfactory explanation for delay in making renewal application, but the present Rules also provide for condoning delay occurred in making renewal application on satisfactory explanation. Mr. Kanabar submitted that the respondent No.3 rejected the application of the petitioner for renewal of the lease without deciding the sufficiency of cause given for explanation of delay. Mr. Kanabar submitted that the application of the petitioner for renewal of the lease is rejected simply on the ground that the application was made after expiry of the lease period and therefore, such application could not be entertained. Mr. Kanabar submitted that once there is a specific provision made in the Rules for admitting delayed application on finding that there is sufficient cause for making such application after the requisite period, the application could not have been rejected simply on the ground that it is made after expiry of the lease period. Mr. Kanabar submitted that non-entertaining of the application made after expiry of the lease period would frustrate and make the first proviso contained in Rule 17(4) redundant even though a person filing such application for renewal of the lease has convincing and sufficient reasons for condonation of delay. Mr. Kanabar submitted that the question about condonation of delay would arise only after expiry of the lease period and such could only be the intention of the legislature, otherwise the legislature would not have made provision for condonation of delay in Rule 17(4) of the Rules. Mr. Kanabar submitted that as regards condonation of delay occurred in making application for renewal of the lease after expiry of the lease period, a provision similar to Rule 17(4) was already there in the earlier Rules known as Gujarat Mines and Minerals Rules, 1966 and this Court under the earlier Rules has taken a view in Special Civil Application No.12329 of 2008 that delay occurred in filing the application after expiry of the lease period is required to be condoned on sufficient explanation. Mr. Mr. Kanabar submitted that in the two petitions filed earlier by the petitioner, though direction was given to decide the application of the petitioner keeping in mind the spirit of provision for condonation of delay, the respondent No.3 has in disregard of the said orders rejected the application simply on the ground that such application is made after expiry of the lease period and there is no question to condone the delay for such application. Mr. Kanabar thus urged to allow the petition and to quash and set aside the impugned order and to allow the renewal application. 6. Learned Assistant Government Pleader Mr. P.P. Banaji appearing for the respondents submitted that undisputably, when the petitioner made application for renewal of the lease, the same was after a period of 241 days from the date of expiry of the lease. Mr. Banaji submitted that second proviso of Rule 17(4) of the Rules clearly mandates that in no case, application made after expiry of the lease shall be entertained. Mr. Banaji submitted that in view of such clear mandate in the statutory Rules, there was no question of deciding the question about the delay in making application for renewal of the lease by the petitioner. Mr. Banaji submitted that condonation of delay contemplated in Rule 17 is about the delay occurred in not making application after commencement of 180 days before expiry of the lease and not the delay occurred in making application after expiry of the lease. Mr. Banaji submitted that the judgment relied on by the petitioner delivered in Special Civil Application No.12329 of 2008 was in the case governed by the Gujarat Mines and Mineral Rules, 1966, wherein there was no provision for not entertaining the application for renewal of the lease made after expiry of the lease period and therefore, the petitioner is not justified in placing reliance on the said decision. Mr. Banaji submitted that since by virtue of the statutory provision contained in second proviso of Rule 17(4) of the Rules, the respondent No.3 was not authorized to entertain the application for renewal of the lease made after expiry of the lease period, it cannot be said that the respondent No.3 has committed any error in passing the impugned order. He thus urged to dismiss the petition. 7. He thus urged to dismiss the petition. 7. Having heard learned advocates for the parties and having considered the provisions of the Rules, especially Rule 17(4), it appears that there is no dispute about the fact that the petitioner made application for renewal of his lease after expiry of the lease period. The application for renewal was made after about 241 days from the date of expiry of the lease though such application was required to be made at least 180 days before expiry of the lease to the competent authority. 8. The provisions as regards condonation of delay and for non-entertainment of the application for renewal of the lease after expiry of the lease period are contained in Rule 17(4), which reads as under :- “17(4) An application in Form F, for the renewal of a quarry lease shall be presented, in triplicate, at least 180 days before the expiry of the lease to the Competent Authority and shall be accompanied by a treasury Challan of such amount and in such manner as specified in rule 6: Provided that any such application may be admitted after the expiry of the stipulated period, if the Competent Authority is satisfied that the applicant had just and sufficient cause for not presenting the application within such period. Provided further that in no case, the application made after the expiry of the lease shall be entertained. Provided also that in case the application for the renewal of a quarry lease is not disposed of by the Competent Authority before the date of expiry of the lease, the period of lease shall be deemed to have been extended for a further period till the Competent Authority passed the order thereon.” 9. Relying on first proviso of sub-Rule (4), learned advocate Mr. Kanabar submitted that when there is a clear provision for admitting the application after expiry of the stipulated period, the legislature can be said to have intended condonation of delay occurred after 180 days which would be only after expiry of the lease period. He therefore, submitted that non-entertainment of the application after renewal of the lease after expiry of the lease would frustrate and make first proviso redundant. However, such contention cannot be entertained on simple reading of plain language of first and second proviso of Rule 17(4) of the Rules. 10. He therefore, submitted that non-entertainment of the application after renewal of the lease after expiry of the lease would frustrate and make first proviso redundant. However, such contention cannot be entertained on simple reading of plain language of first and second proviso of Rule 17(4) of the Rules. 10. When the Rule provides to make application for renewal of the lease at least 180 days before expiry of the lease to the competent authority, it could be said that the first proviso authorizes the competent authority to admit the application for renewal of the lease if not made 180 days before expiry of the lease but made after commencement of 180 days but before expiry of the lease and therefore, it is provided in the first proviso that if competent authority is satisfied that the applicant has just and sufficient cause for not presenting application within stipulated period of 180 days, the application may be entertained after expiry of that stipulated period. Therefore, first proviso could not be said to have provided for condonation of delay for the application made after expiry of the lease period. In order to give a clear mandate against not entertaining of any application for renewal of the lease after expiry of the lease, the legislature has inserted second proviso wherein, in unequivocal terms, it is provided that in no case, application made after expiry of the lease shall be entertained. Use of word ‘SHALL’ in the second proviso makes the competent authority dis-entitled to entertain application for renewal of lease after expiry of lease in any circumstances even if it finds that the applicant has strong case for making application at much belated stage after expiry of the lease period and even if it finds that the applicant could not make application before expiry of the lease period for reasons beyond his control. Such being the clear provision made in the statutory Rules for the purpose of not entertaining the application made after expiry of the lease period, the decision relied by the petitioner delivered in Special Civil Application No.12329 of 2008 dated 5.12.2008 will be of no help to the petitioner as the same was given under old Rules of Gujarat Mines and Mineral Rules, 1966, wherein no provision for not entertaining the application for renewal of the lease after expiry of the lease was made. Therefore, it cannot be said that the respondent No.3 has committed any error in passing the impugned order rejecting the application of the petitioner for renewal of the lease. 11. For the reasons stated herein-above, the petition is dismissed. Rule is discharged. Interim relief, if any, stands vacated.