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2017 DIGILAW 1742 (GUJ)

Bhanu Bhai Bhurabhai Odedara v. State of Gujarat

2017-10-09

RAJESH H.SHUKLA

body2017
ORDER : RAJESH H. SHUKLA, J. 1. Present petition is filed by the petitioner under Articles 14, 16 and 226 of the Constitution of India as well as under the Mines and Mineral (Development and Regulation) Act 1957, for the prayer as prayed inter alia that appropriate writ order or direction may be issued for quashing and setting aside the impugned order dated 16.03.2017 at Annexure-F on the ground stated in the memo of petition and also prayed for stay of the said order. 2. Heard learned advocate Shri. NK Majmudar for the petitioner. 3. Learned advocate Shri. Majmudar has referred to the background of the facts and contended that the order passed by the authority is without application of mind and the Revisional authority has only relied upon the circular report of 2006 and therefore, the order is vitiated and deserves to be quashed and set aside. Learned advocate Shri. Majmudar has also submitted that the order passed, is without considering the evidence on record. Learned advocate for the petitioner has tried to submit that the order, which has been passed without assigning any reasons and without considering the evidence, is arbitrary and illegal. He has referred to the judgments which have been quoted in the grounds of the petition including the judgment of the Hon'ble Apex Court reported in (2013) 7 SCC 160 and other judgments. 4. Though the submissions have been made, the chequered history and the rounds of litigation itself would suggest about the wholeness of the claim made by the petitioner. As it is evident from the order, produced at Annexure-B, the Geologist has clearly indicated about unauthorized excavation made by the petitioner, which is also admitted by the petitioner as recorded in the order passed by the Geologist dated 11.02.2009 The petitioner was required to make payment of Rs. 45,73,800/- and though the sufficient opportunity was granted including the personal hearing, the petitioner has not remained present. He has addressed a communication dated 03.03.2009, at Annexure-C, to the Collector, Porbandar, contending that he has not made any unauthorized excavation. However, as per the order dated 01.10.2009 passed by the Collector, the petitioner was ordered to make payment of Rs. 45,73,800/-. The petitioner, thereafter, filed a Revision Application No. 9/27/2009 before the Revisional Authority and the order came to be passed remanding the matter back to the State Government to decide afresh. However, as per the order dated 01.10.2009 passed by the Collector, the petitioner was ordered to make payment of Rs. 45,73,800/-. The petitioner, thereafter, filed a Revision Application No. 9/27/2009 before the Revisional Authority and the order came to be passed remanding the matter back to the State Government to decide afresh. While remanding the matter back, the Revisional Authority i.e Director, Ministry of Mines, Shashtri Bhavan, New Delhi, observed that while deciding the matter afresh after fresh demarcating the area as per provisions of MMDR Act, 1957 and the rules, the State authority may consider the same. Therefore, the Collector cannot examined afresh and has observed in the impugned order dated 16.03.2017 that verification was made. It clearly records that the lease holder had admitted about the unauthorized excavation and therefore, on the basis of record as discussed in detail, the difference was found to the tune of 15396.739 metric tones suggesting the unauthorized excavation for which the demand has been made. The total export and disposal of the mineral was 29,916.739 metric tones, whereas the excavation made was to the tune of 14,520 metric tones itself suggest about the unauthorized excavation for which the petitioner has been called upon to make the payment for breach of the terms and conditions of lease which is now sought to be challenged in the present petition. Therefore, in light of the detailed order which has been passed after the matter was remanded back by the Revisional Authority, it hardly calls for interference in exercise of discretionary jurisdiction under Articles 226 and 227 of the Constitution. 5. Learned advocate Shri Majmudar has not been able to point out about the fact that how the order cannot be said to be reasoned order. Therefore, the reliance placed by learned advocate Shri Majmudar on the judgments which have been stated in the grounds of memo of petition will not have any relevance. The order is passed on the basis of available material and record. Therefore, as the petitioner was pursuing the remedy right up to Revisional Authority consuming time, he cannot be permitted to argue about denial of any opportunity and/or rules of natural justice or for the relevant documents are not considered. The order is passed on the basis of available material and record. Therefore, as the petitioner was pursuing the remedy right up to Revisional Authority consuming time, he cannot be permitted to argue about denial of any opportunity and/or rules of natural justice or for the relevant documents are not considered. While passing the impugned order in 2013, the authority has considered the relevant record and the survey made in the year 2006 as it relates to the unauthorized excavation at the relevant time, which was a subject matter of litigation. Naturally, it has to be considered when the matter has been remanded back by the Revisional Authority, Director, Ministry of Mines, Shashtri Bhavan, New Delhi, the impugned order passed by the Collector dated 16.03.2017, at Annexure-F, does not call for any interference. 6. Therefore, the present petition deserves to be dismissed and accordingly stands dismissed in limine.