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2016 DIGILAW 704 (GUJ)

Jayendra Himmatbhai Sanghani v. State of Gujarat

2016-03-31

N.V.ANJARIA

body2016
JUDGMENT : N.V. Anjaria, J. 1. All the above petitions involve similar facts and identical issues. They were notified and heard together and are being decided by this common order. 2. Petitioners have prayed in all the petitions for declaration and direction that Guidelines Nos. 1 and 6 in the Government Resolution dated 27th December, 2012 are violative and not in conformity with tender conditions. The prayer made alternatively to the aforesaid prayer is to direct the respondent authorities to extend period of work contract on the ground that the mining hours came to be restricted under the aforesaid Government Resolution. 2.1 The Condition Nos. 1 and 6 in the aforementioned Government Resolution by which the petitioners are aggrieved provide for restricting the mining activity during the hours from 06.00 am to 06.00 pm and provide further that the mining carried out during the night hours other than permitted hours shall be considered as unauthorized mining. The other condition No. 6 prohibited the mining activity beyond three meters beneath the land of the riverbed. 2.2 As far as Special Civil Applications No. 12624 of 2013, 12625 of 2013, 12628 of 2013, 12629 of 2013 and 12630 of 2013 are concerned, a further prayer is made seeking direction against the respondent authorities to execute formal work contract pursuant to the auction, ignoring condition Nos. 1 and 6 in the Government Resolution dated 27th December, 2012. 3. Taking out the facts from first captioned Special Civil Application, the case of the petitioner that they are engaged in the business of Sand and Kapchi (Metal); they came to be awarded contract for mining of Sand in Block No. 12 at Village Poyada, Taluka Prantij and the mining was to be carried out from the area in the riverbed Sabarmati. The auction was held on 24th August, 2012 in which the petitioner having fared highest, was granted the contract to mine. 3.1 The petitioner of Special Civil Application No. 12625 of 2013 was similarly granted the mining contract pursuant to the auction held in respect of Block No. 10 at the same place. The mining contract to petitioner of Special Civil Application No. 12628 of 2013 was in respect of Block No. 11, whereas to the petitioner of Special Civil Application No. 12629 of 2013, it was for Block No. 08. The mining contract to petitioner of Special Civil Application No. 12628 of 2013 was in respect of Block No. 11, whereas to the petitioner of Special Civil Application No. 12629 of 2013, it was for Block No. 08. The petitioner of Special Civil Application No. 12630 of 2013 got the mining rights pursuant to the auction process in respect of Block No. 09. The petitioners of Special Civil Application No. 17792 of 2013 and 17793 of 2013, who were also given mining contract upon they bidding highest in the auction in respect of Block No. 03 at Village Oran, Taluka Prantij and in respect of Block No. 02 at the same place respectively. 3.2 In all cases of grant of the mining contract, the condition No. 9 of the Tender inter alia was that the awardee of the contract was required to deposit 20% of the total bidded amount immediately and within seven days; the remaining 80% in eight monthly installments along with the execution of Security Bond. The petitioners were asked to deposit the said amount in compliance of the condition. It is an admitted position that the petitioners of the petitions mentioned in paragraph 2.2 hereinabove failed to deposit and did not comply with the said condition and therefore Lease Agreement in their favour has not been executed. The prayer for execution of formal contract is made by the said petitioners in that context. 3.3 It is the common case of all the petitioners that after award of the contract as above, the State Government came out with Government Resolution dated 27th December, 2012 in which the restrictive conditions were imposed. According to the petitioners the mining activity was permitted for 24 hours and the excavation was permitted upto 10 feet in the land before the limiting conditions prescribed in the Resolution. The contention is raised that the said conditions were not part of the original tender conditions and could not have been superimposed by bringing out a Resolution. It is pleaded that since the hours are restricted for mining activity, in the alternative, the authority may be directed by the Court to extend the period of contract. 4. Learned advocate Mr. Apurva Kapadia for petitioner in each of the petitions submitted that the conditions in question brought into play by way of Resolution were arbitrary and unreasonable. It is pleaded that since the hours are restricted for mining activity, in the alternative, the authority may be directed by the Court to extend the period of contract. 4. Learned advocate Mr. Apurva Kapadia for petitioner in each of the petitions submitted that the conditions in question brought into play by way of Resolution were arbitrary and unreasonable. It was submitted that they amounted to variation in the original tender conditions, which was not permitted. It was submitted that the Collector addressed a communication dated 16th January, 2013 in favour of one of the successful lease holders incorporating the said two conditions in their lease agreement and having come to know about the same, application was made to the respondent authority to permit to carry out the mining for 24 hours. As there was no response, submitted learned advocate for the petitioners, the present petitions were required to be filed. That in any case the alternative prayer deserves to be granted for extending the period of contract so that the hours of business lost due to restrictive conditions may be compensated. He submitted that the conditions prescribed in the Resolution in question amounted to alteration to the disadvantage and detriment of the petitioners who were the lawful awardee of contract pursuant to an open auction. 4.1 Learned Assistant Government Pleader Mr. Tirthraj Pandya on the other hand relied on affidavit-in-reply filed by the Geologist on behalf of the respondents, to make the following submissions - (i) the Resolution/Circular dated 27th December, 2012 was issued in light of order dated 16th February, 2012 passed by this Court in Writ Petition (PIL) No. 06 of 2011, after constituting a Committee; (ii) the Apex Court in order dated 27th February, 2012 in Special Leave Petition (Civil) No. 19628-19629 of 2009 in Deepakkumar vs. State of Haryana expressed concern over the grant and mining activity of mineral minerals especially ordinary sand; (iii) Ministry of Forest and Environment, Government of India, in its model guidelines suggested to all the States required to regulate the depth upto which the mining of mineral ordinary sand in the riverbed may be permitted. Learned Assistant Government Pleader justified the prescription of conditions in the aforesaid Resolution dated 27th December, 2012 and submitted that the petitioners are enjoined to abide by the said conditions while enjoying their rights under the contract. Learned Assistant Government Pleader justified the prescription of conditions in the aforesaid Resolution dated 27th December, 2012 and submitted that the petitioners are enjoined to abide by the said conditions while enjoying their rights under the contract. He submitted that there was a condition in the contract itself to abide by all the orders and directions which may be issued by the State Government by way of regulatory measure or otherwise in relation to the mining work. 4.2 In the affidavit, it was further contended that the contention of the petitioners that the imposition of guidelines amounted to taking away their rights was not acceptable in as much as all the lease holders who are awarded Blocks to excavate the mineral in the same Village or in the different Village, have been continuing their mining activities despite the aforesaid restrictions provided for in the Resolution. It was stated that for instance, lease holder of Block No. 3 excavated around 84,290 MT mineral from November, 2012 to May, 2013. It is further averred in the affidavit that even after imposition of new Guidelines the lease holders can easily excavate the annual limit of 84,600 MT of ordinary sand which is mentioned in the Tender. It is further contended that petitioners have committed breach of conditions by not paying 20% of the bid amount and the monthly installments disentitling themselves for execution of lease agreement. 5. In the aforesaid conspectus of facts and the rival contentions, proceeding to consider whether the relief prayed for are liable to be granted, as far as the challenge to the Condition Nos. 1 and 6 in the Resolution dated 27th December, 2012 are concerned, their prescription are in the background of the order passed in public interest petition. This Court while dealing with W.P. (PIL) No. 06 of 2011 in Mulji Lakha Barot vs. State of Gujarat, passed an order dated 16th February, 2012 which was as under. 1 and 6 in the Resolution dated 27th December, 2012 are concerned, their prescription are in the background of the order passed in public interest petition. This Court while dealing with W.P. (PIL) No. 06 of 2011 in Mulji Lakha Barot vs. State of Gujarat, passed an order dated 16th February, 2012 which was as under. "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." 5.1 It appears that in compliance of the aforesaid order of this Court, the State Government constituted a Committee under the Chairmanship of Principal Secretary, Industries and Mines Department, to examine and suggest the measures for better implementation of the sand mining activity and for regulatory guidelines in that regard keeping in mind environmental interest. The measures to monitor, regulate and check the mining activity in the areas of riverbed were required also pursuant to order of the Apex Court. It has been pointed out that the Ministry of Forest and Environment, Government of India, in its model guidelines suggested to all the States to regulate the depth of mining of the said mineral upto three meters in the riverbed. 5.2 It was observed in paragraph 15 of judgment of Supreme Court dated 27th February, 2012 in Deepakkumar (supra) that:- "We are of the view that all the State Governments/Union Territories have to give due weight to the above mentioned recommendations of the MoEF which are made in consultation with all the State Governments and Union Territories. 5.2 It was observed in paragraph 15 of judgment of Supreme Court dated 27th February, 2012 in Deepakkumar (supra) that:- "We are of the view that all the State Governments/Union Territories have to give due weight to the above mentioned recommendations of the MoEF which are made in consultation with all the State Governments and Union Territories. Model Rules of 2010 issued by the Ministry of Mines are very vital from the environmental, ecological and bio-diversity point of view and therefore the State Governments have to frame proper rules in accordance with the recommendations, under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957." 6. It was in the aforesaid background that the State Government issued the guidelines and imposed restrictive conditions in the Resolution dated 27th December, 2012. In terms of the reasonability, rationale and the object sought to be achieved, Condition Nos. 1 and 6 could in no way be excepted. They are the conditions envisaged for the purpose of protecting the environment by not allowing the misuse of riverbed areas preventing the excavation work in indiscriminate manner, in guise of exercise of right to mine. 6.1 There is no gainsaying also that the State Government is empowered to frame Guidelines to regulate the mining activity under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957. If the conditions are prescribed by issuing Resolution whereby the extent of the depth of the land in the riverbed is prescribed for mining and the mining activity is prohibited during the night hours, such Conditions are not in any way unreasonable or unjust, rather, the same are beset with the considerations of preservation of environment and subservience of larger public interest. 6.2 Adverting to the contention that the Conditions prescribed in the Resolution dated 27th December, 2012 in question are beyond the conditions forming part of the original Tender. Firstly, as far as those petitioners who have committed breach of conditions of Tender by not depositing the 20% bid amount and not paying the subsequent installments, no agreement is executed in their favour. They are not entitled to raise such a plea. Such defaulting petitioners having not complied with the conditions to be performed on their part and no Lease Deed having been executed in their favour, they are estopped from raising this plea. They are not entitled to raise such a plea. Such defaulting petitioners having not complied with the conditions to be performed on their part and no Lease Deed having been executed in their favour, they are estopped from raising this plea. 6.3 In any view, Condition No. 18 in the tender conditions lays down that the awardee of contract would be bound by the provisions of law as well as directives and instructions which may be issued from time-to-time by the State Government. The conditions which are prescribed in the Resolution dated 27th December, 2012 are therefore binding to the petitioners and they cannot contend that they would not comply with the same, and by virtue of the aforesaid conditions, what is provided in the Resolution regarding the hours of mining as well as the depth upto which the mining is permitted into riverbed, are the legal conditions required to be complied with while undertaking the work of mining by the petitioners. 6.4 It may be recorded that in affidavit-in-reply in Special Civil Application No. 17793 of 2013 the averments by the Geologist are made on oath that as far as District of Sabarkantha is concerned, all the Block areas of mineral ordinary sand situated in the riverbed have been following the Guidelines issued through Resolution/Circular dated 27th December, 2012. It is further stated that against those persons not complying with the prescription, strict actions are taken. 6.5 As regards alternative prayer about direction to extend period of contract is concerned, such relief cannot be granted by the Court in exercise of writ jurisdiction. Besides that the prayer is without any merit. On the contrary it is stated in the affidavit by the authority that despite the condition in the Resolution in question restricting the hours of mining, mining is carried out by the petitioners. Further prayer for direction against the authority to execute formal work contract could also not be subject matter of writ powers. The petitioners have committed breach of condition of contract by not depositing the amount and by not paying the installments. Therefore the authorities are justified in not executing the formal work contract. All the prayers are therefore baseless and not liable to be granted. The petitioners have committed breach of condition of contract by not depositing the amount and by not paying the installments. Therefore the authorities are justified in not executing the formal work contract. All the prayers are therefore baseless and not liable to be granted. 6.6 Additionally, it is pertinent to mention that petitioner of Special Civil Application No. 12123 of 2013 which came to be dismissed by order dated 17th March, 2016, had filed Special Civil Application No. 3541 of 2013 whereby he challenged the order of terminating his lease; on the ground that petitioner has been carrying out the mining work even during the prohibited hours. In that petition, prayer was also made to declare from Condition Nos. 1 and 6 in the Resolution dated 27th December, 2012 as illegal and violative of Article 14 of the Constitution. A direction was also sought for, for not implementing the said conditions. The said prayers were not entertained and the petition was disposed of sans giving the said relief. The very prayers which are made in the present batch of petitions does not qualify to be granted for all the aforesaid further reasons and discussion. 7. In view of above, the petitions are devoid of merits deserving dismissal. All the Special Civil Applications are therefore dismissed. Notice in each of them discharged. There shall be no orders as to the costs.