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2014 DIGILAW 95 (GUJ)

Thakkar Trading v. State of Gujarat

2014-01-23

K.J.THAKER, VIJAY MANOHAR SAHAI

body2014
Judgment Vijay Manohar Sahai, J.—We have heard Mr. Mihir Joshi, learned Senior Counsel assisted by Mr. Satyam Chhaya appearing for the petitioner and Mr. Utkarsh Sharma, learned Assistant Government Pleader appearing for the respondent. 2. The facts of the case in brief are that on 24.8.2012, the petitioner participated in the online tender-cum-auction held by the respondents for awarding lease for Block No. 1, Survey No. 312 situated at Sabarmati river bed admeasuring 2 Hector at village Poyda, Tal. Prantij, Distt. Sabarkantha for the excavation of ordinary sand. The petitioner’s bid of Rs. 2 Crore and 11 Lacs for the said area was accepted. The said bid of the petitioner was accepted by the Collector, Sabarkantha. On 3.10.2012, order was passed by the Collector, Sabarkantha mentioning therein the conditions of the tender. In Paragraph 6 of the said order, it was clearly mentioned that the petitioner could carry out the sand mining upto 10 meters depth in two to three stages. Paragraph 6 of the said order is extracted below :— “6. In the block allotted simple sand mining upto 10 meters depth in two to three stages will have to be excavated and during the mining work, other then the simple sand, if any other mineral is found then to inform the concerned Collector and after obtaining the approval / permit as per the Rules only thereafter the stocks can be excavated.” 3. Thereafter, lease agreement was entered into between the parties on 31.12.2012. The lease agreement was for a period of three years. Condition No. 2 and 19 of the lease agreement is extracted below :— “2. The Contractor shall extract, collect, gather and remove the ordinary sand from the area specified in the contract in such a manner that no damage is done to any highway, road, agricultural land, trees or other places of public utility or property. No quarrying operation shall be done within a distance of 50 meters of public utility/properties and river bank. The mining should be done upto 10 Mts. depth in two or three phases. 19. The Contractor shall have liberty and power to use 50 meters of buffer area between the bank of the river and the area granted under this contract as handling area on payment of surface rent. The mining should be done upto 10 Mts. depth in two or three phases. 19. The Contractor shall have liberty and power to use 50 meters of buffer area between the bank of the river and the area granted under this contract as handling area on payment of surface rent. Such area may be shown on the map as included in the granted area in this contract but no excavation shall be permitted in this area. The Contractor should not obstruct others from using the road / tract passing through such area.” 4. It would be relevant to mention that on 16.2.2012, the Division Bench of this Court in Writ Petition (PIL) No. 6 of 2011 passed the following order :— “After hearing the learned counsel for the parties, we are of the view that it is a fit case where the Principal Secretary, Industries and Mines, State of Gujarat and the Principal Secretary, Forest & Environment, State of Gujarat, should sit together and consider the provisions contained in the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 to find out whether the principles laid down in the said Act can be relevant for preservation of environment of the State of Gujarat. For arriving at a just conclusion, those two officers are at liberty to take assistance of any experts of their choice in the field. After hearing the learned counsel for the parties, we are of the view that it is a fit case where the Principal Secretary, Industries and Mines, State of Gujarat and the Principal Secretary, Forest & Environment, State of Gujarat, should sit together and consider the provisions contained in the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 to find out whether the principles laid down in the said Act can be relevant for preservation of environment of the State of Gujarat. For arriving at a just conclusion, those two officers are at liberty to take assistance of any experts of their choice in the field. Let the matter appear on March 22, 2012 to enable them to take such decision. The decision that will be taken should be communicated to this Court on the next date.” 5. Mr. For arriving at a just conclusion, those two officers are at liberty to take assistance of any experts of their choice in the field. Let the matter appear on March 22, 2012 to enable them to take such decision. The decision that will be taken should be communicated to this Court on the next date.” 5. Mr. Utkarsh Sharma, learned Assistant Government Pleader appearing for the respondents has submitted that in pursuance of the above order of this Court, a meeting was held which was chaired by the Chief Secretary, Forest & Environment department on 8.8.2012 wherein decision was taken to regulate the plain sand mineral excavation and to issue guidelines. Accordingly, the Government of Gujarat, Industries & Mines Department, on 27.12.2012 issued a new Circular wherein following guidelines have been issued :— “(1) In the morning before 6-00 hours and in the evening after 6-00, no excavation of the plain sand mineral can be done, and if there is excavation of sand during this time period then it will be considered as unauthorized mining. (2) The permission for excavating the plain sand mineral from the river bed only can be granted and upto minimum 25 meters from the river bank, there cannot be any vehicle parked for loading sand mineral, and upto 10 meters from the river bank, no sand mineral excavation can be done. No stocks more than that may be determined by the District Area Committee can be exported from any area. (3) The places where there are possibilities of the river water flowing into the salt water at such places, the plain sand mineral excavations cannot be done. (4) The State Government by any general instructions or any special orders cannot excavate plain sand mineral more than determined by the District Area Committee from the prohibited areas. (5) The sand mineral excavations at a distance upto 500 meters from any Irrigation Project or Bridge cannot be done. (6) In the river bed, the sand excavation only upto three meters depth can be done. (7) From amongst three guidelines for the breach of any of the conditions, action under the Mines & Mineral Act / Rules will be taken. (8) The Policy determined by the State Government from time to time will have to be followed.” 6. (6) In the river bed, the sand excavation only upto three meters depth can be done. (7) From amongst three guidelines for the breach of any of the conditions, action under the Mines & Mineral Act / Rules will be taken. (8) The Policy determined by the State Government from time to time will have to be followed.” 6. Thereafter, the Collector, Sabarkantha issued a Circular dated 22.1.2013 whereby he informed and directed all the leaseholders of mineral ordinary sand to comply with the guidelines issued as per the Government Resolution dated 27.12.2012. 7. Being aggrieved with the said Circulars dated 22.1.2013 as well as 27.12.2012, the petitioner made a representation on 23.2.2013 to the Secretary, Industries & Mines Department, The Commissioner, Geology & Mines Department, the Collector, Sabarkantha and the Geologist, Geology & Mines Department wherein it was stated by the petitioner that if the conditions of the contract would be modified, it will be financially not be viable for the petitioner to continue with the payment which was ofered by the petitioner at the time of the auction and, therefore, it was prayed in the representation that the respondents may return back the money which has already been paid to the State Government if the Government Authority is not in a position to comply with their part of the contract and assurance given in the form of policy and contract. The relevant part of the representation is extracted below :— “...................Further, in view of another Resolution dated 27.12.2012, the Authorities have decided to form a committee which would interfere and/or regulate excavation process of the lease holder likewise the applicant. Now, the said prohibition, guidelines and/or conditions were not made known to the applicant either in the advertisement of the auction or in the condition enumerated in the order of grant. Therefore, the applicant has given his proposal as well as the bid after considering the fact that the applicant would be in a position to excavate round the clock i.e. 24 hours and upto 10 meters of depth. Further, there was no prohibition of carrying the vehicles to the lease area so that the excavated sand can be loaded through machine which would facilitate the applicant to make excavation faster and easier. Further, there was no prohibition of carrying the vehicles to the lease area so that the excavated sand can be loaded through machine which would facilitate the applicant to make excavation faster and easier. Further, now, in view of aforesaid guidelines dated 27.12.2012, it would be impracticable and impossible and financially it would not be viable for the applicant to continue with the payment which was offered by the applicant at the time of the bid. . . . . . . . . . . . . . . . . . . Kindly take this representation in true spirit and perspective by considering the fact that the applicant has invested huge amount towards earnest and other deposited money with the Authority. The applicant also humbly requests your good-self to consider the prayer of the applicant to return back the money which is already paid to Government if the Government Authority is not in a position to comply with their part of contract and assurance given in form of policy and contract.” 8. However, the representation of the petitioner was not decided and no decision was taken by the respondents. Thereafter, on 13.5.2013, by Registered Post AD letter, the petitioner returned the remaining royalty passes to the respondents. However, the said letter was not accepted by the respondents. Therefore, the petitioner again made representation on 14.6.2013 to the Secretary, Industries & Mines Department, The Commissioner, Geology & Mines Department, the Collector, Sabarkantha and the Geologist, Geology & Mines Department wherein the petitioner requested the authorities to take the unused royalty passes from the petitioner and issue receipt in this regard. 9. It appears to us that this request did not find worth attention of the respondents as they did not pass any order in this regard. According to Mr. Mihir Joshi, learned Senior Counsel appearing for the petitioner, the petitioner has stopped mining activities sometimes in the month of August, 2013 (on instructions received from the petitioner). This fact is not disputed by the respondents and in paragraph 10 of the affidavit-in-reply filed by the respondents, it has been stated by the respondents that the petitioner has carried out mining excavation of 22736 Mt. Tonnes and thereafter, the petitioner had voluntarily refrained from mining. 10. Thereafter, on 6.5.2013, the respondents have issued a show-cause notice to the petitioner demanding various amounts which is reflected in the said notice. Tonnes and thereafter, the petitioner had voluntarily refrained from mining. 10. Thereafter, on 6.5.2013, the respondents have issued a show-cause notice to the petitioner demanding various amounts which is reflected in the said notice. It is also stated in the said notice that if the demand is not paid by the petitioner, then the petitioner is asked to stop the work and the lease agreement would be cancelled. 11. Thereafter, the respondents have passed order dated 5.8.2013 by which the petitioner was informed that he has not deposited Form J and installments of Rs. 1,05,50,000/-. It was stated that the petitioner should deposit the above mentioned amount along with 18% interest within 15 days otherwise, as per Terms No. 15 & 21 of the agreement, proceedings will be taken against the petitioner and the cheques of the balance installments (which were deposited by the petitioner in advance with the respondents) will be deposited in the Bank and if the cheque bounces, criminal action will be taken against the petitioner and the petitioner’s block be cancelled. 12. After hearing the learned counsel for the parties, we are satisfied that the petitioner has stopped work from August 2013 as this fact is not disputed in Paragraph 10 of the reply of the respondents. The petitioner has carried out mining operation to the extent of 22736 Mt. Tonnes. Whether the terms of the contract could be changed by the respondents in exercise of their powers under the Contract is not clear and whether any subsequent Circular issued by the respondents after the contract has been entered into between the parties or in ignorance of the Circular, if a contract has been executed between the parties, there were only two options available to the respondents (i) either to have cancelled the contract and could have entered into fresh contract as per the Circular which was ignored by them or (ii) they may continue with the contract without changing the conditions of the contract. They unilaterally cannot modify the terms of the contract putting the petitioner to suffer huge losses and imposing conditions which the petitioner could not carry out mining operations as the petitioner has made a bid on the basis of the tender notice. 13. They unilaterally cannot modify the terms of the contract putting the petitioner to suffer huge losses and imposing conditions which the petitioner could not carry out mining operations as the petitioner has made a bid on the basis of the tender notice. 13. The respondents were under a duty to have informed the petitioner before entering into agreement on 31.12.2012 that new Circular dated 27.12.2012 has come and the petitioner may decide whether he wants to take contract on the terms and conditions provided in the Circular dated 27.12.2012 or not. 14. When the Circular has already been issued on 27.12.2012, the guidelines issued therein has to be incorporated before entering the agreement on 31.12.2012 if they were to be acted upon. 15. In this view of the matter, we dispose of this writ petition by issuing following directions :— (i) The petitioner herein will submit fresh representation to the Respondent No. 1 – the Secretary, Industries & Mines Department, Sachivalaya, Gandhinagar within a period of two weeks from today. (ii) The Respondent No. 1 is directed to decide the representation that may be made by the petitioner within a period of four weeks thereafter, after giving an opportunity of hearing to the petitioner. While deciding the fresh representation of the petitioner, the Respondent No. 1 is directed to also take into account the earlier representations dated 23.2.2013 and 14.6.2013 of the petitioner. (iii) The Respondent No. 1 is directed to pass a reasoned speaking order on the representation of the petitioner and communicate the decision to the petitioner. (iv) Till the representation is decided by the respondents, no coercive steps shall be taken against the petitioner and no action be taken by the respondents in pursuance of the letter dated 5.8.2013. Direct service is permitted.