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2021 DIGILAW 358 (GUJ)

Ashapura Minechem Limited v. State of Gujarat

2021-04-30

BIREN VAISHNAV

body2021
ORDER : Biren Vaishnav, J. 1. Rule returnable forthwith. Learned Assistant Government Pleader waives service of rule on behalf of the respondent-state. With the consent of the respective parties, the matter is taken up for final hearing. 2. Mr. Vakil, learned counsel for the petitioner would rely on the orders passed in similar matters by this Court namely; SCA No. 9470 of 2019 dated 17.5.2019 and the order passed in SCA No. 5316/2021 dated 24.3.2021. 3. Having heard learned counsels for the respective parties, it is not in dispute that the LOI in this petition is either prior or after the amended Rules of 2017. Admittedly, the case of the petitioner as referred in the order dated 24.3.2021 passed in SCA No. 5316/2021 shall be governed by the Gujarat Minor Mineral Concessions Rules, 2017 and the notifications dated 9.3.2018 and 6.1.2020. By the notification dated 6.1.2020, sub-rule (3) of Rule 29 was substituted by which the substituted rule provided that the Government shall issue a order in writing for grant of a quarry lease to the holder of a letter of intent upon satisfaction of the following conditions within a period of four years from the date of commencement of these rules, failing which the right of such an applicant for grant of quarry lease shall be forfeited automatically. In view of the amended Rules of 2017 having come into force on 24.5.2017, the time limit for the grant of lease in favour of the petitioner would expire on 23.5.2021. 4. The order dated 24.3.2021 passed in SCA No. 5316 of 2021 governed the case, would require this Court to reproduce the order which reads as under: "1. In this petition, which is filed under Article 226 of the Constitution of India, petitioners have prayed that the concerned respondent authorities be directed to grant the quarry lease permission and execute the mining lease agreement in pursuance of the LOI dated 17.08.2015 issued by the respondent No. 3 in favour of the petitioner in respect of the private Nonagricultural land in question on certain terms and conditions.; 2. Heard learned advocate Mr. Rutvij Oza for the petitioner and learned AGP Mr. Ronak Raval for the respondents. 3. Looking to the issue involved in the present petition, learned advocates appearing for the parties have jointly requested that this petition be disposed of at an admission stage. 4. Heard learned advocate Mr. Rutvij Oza for the petitioner and learned AGP Mr. Ronak Raval for the respondents. 3. Looking to the issue involved in the present petition, learned advocates appearing for the parties have jointly requested that this petition be disposed of at an admission stage. 4. Learned Advocate for the petitioner submitted that the petitioner had succeeded in getting permission for conducting mining activities as per the provision of Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter referred to as "Act, 1957" for short) and Gujarat Minor Mineral Concessions Rules, 2017 (hereinafter referred to as "Rules, 2017" for short) and pursuant to which, LOI was executed on 17.08.2015. It is submitted that mining of mineral, which the petitioner intended to, was blacktrap from the land bearing Survey No. 283 of Village Kesiya, Taluka Jodiya, District Jamnagar, admeasuring 01.00.00 Hectare. He further submitted that under the said LOI, mainly four conditions viz. Environmental Clearance Certificate, measurement by the DILR, to get it decided the amount of stamp duty for lease deed and approved mining plan from the competent authorities were necessary. 5. It is submitted that peculiar situation has arisen on account of the decision of the NGT with regard to the constitution of the Committee, which is responsible for issuing necessary sanction and therefore, as time limit prescribed under the relevant Rules for the period of two years is to expire, the present petition is filed. 6. Learned advocate for the petitioner draws attention of this Court to relevant Rule No. 29, wherein sub-rule (3) provides for the Government to issue an order in writing for grant of quarry lease to the holder of LOI upon following of certain conditions prescribed within a period of two years from the date of commencement of the Rules. It is submitted that Rules came into effect from 24.05.2017 and therefore, period of two years is to expire on 23.05.2019, however, on account of the condition as mentioned, the matter did not progress beyond the LOI and no order for grant of quarry lease was passed in favour of the petitioner. 7. It is submitted that provisions itself make its clear that within two years of the Rules coming into effect, if necessary formalities like grant of order for quarry lease is not passed, in that eventuality, the grant of quarry lease in favour of the petitioner would automatically forfeit. 7. It is submitted that provisions itself make its clear that within two years of the Rules coming into effect, if necessary formalities like grant of order for quarry lease is not passed, in that eventuality, the grant of quarry lease in favour of the petitioner would automatically forfeit. It is submitted that for no fault of the petitioner, the petitioner would stand to loose grant of quarry lease, which is already decided in favour of the petitioner by the State Government. 8. Learned advocate for petitioner draws attention of this Court to the decision of this Court in Civil Application No. 1 of 2018 in Special Civil Application No/417 of 2017, where, in the case of major mineral, an identical situation had arisen. The Division of Bench of this Court directed the respondent to execute the mining lease without any further delay and upon the petitioner following certain conditions. He also refers to the decision of this Court in Special Civil Application No. 7 of 2017 where, in identical set of circumstances, the Court had proceeded to issue the direction to execute the lease deed on certain conditions prescribed. 9. It is submitted that the petitioner is also ready and willing to abide by the conditions as well as give an undertaking before this Court that till the necessary formalities are not concluded, the petitioner will not enter into any mining activities. 10. On the other hand, learned AGP appearing for the respondent authorities has opposed this petition and submitted that LOI was executed after observing all the necessary requirements and on account of peculiar situation, which arose on account of timeline mentioned in Rule 29(3) of the Rules, 2017, the State has also undertaken necessary steps. It is submitted that if this Court is inclined to consider the case of the petitioner on the basis of the similar orders passed by the Coordinate Bench of this Court in similar type of matters, necessary conditions may be imposed. 11. Learned AGP is not in a position to dispute the fact that in similar type of matters, the Coordinate Bench of this Court has considered the case of other similarly situated petitioners. 12. I have heard learned advocates appearing for the parties and also perused the documents produced on record including the provision of Mines and Minerals (Regulation and Development) Act, 1957 and Gujarat Minor Mineral Concessions Rules, 2017. 12. I have heard learned advocates appearing for the parties and also perused the documents produced on record including the provision of Mines and Minerals (Regulation and Development) Act, 1957 and Gujarat Minor Mineral Concessions Rules, 2017. Rule 29 of the Rules, 2017 reads as under: "29. Existing applications and right of holder of letter of intent. (1) All applications for grant of a quarry lease received prior to the date of commencement of these rules shall become ineligible. (2) (2) Without prejudice to sub-rule (1), where the Government has communicated a prior written approval for grant of quarry lease or if a letter of intent has been issued in writing by the Government to grant a quarry lease, before the commencement of these rules, the quarry lease shall be granted in accordance with the provisions of sub-rules (3) to (6) (inclusive). (3) The Government shall issue an order in writing for grant of a quarry lease to the holder of a letter of intent upon satisfaction of the following conditions within a period of two years from the date of commencement of these rules, failing which the right of such an applicant for grant of quarry lease shall be forfeited automatically and in such cases, the Government would not be required to issue any order for this purpose: (a) fulfilment of the conditions of the prior approval or the letter of intent; (b) the holder of letter of intent having obtained all consents, approvals, permits, no objections and the like as may be required under applicable laws for commencement of mining operations; (c) the holder of letter of intent having satisfied the conditions specified in CHAPTER VIII with respect to a mining plan (including the mine closure plan); (d) furnishing financial assurance as specified in rule 64: Provided that upon receipt of a written application, stating reasons for non- fulfilment of the conditions within a period of two years, the Government may, for reasons recorded in writing extend the period of two years by an additional period of not more than six months: Provided further that, save for the right to receive a quarry lease pursuant to the prior approval or the letter of intent, these rules shall apply to quarry lease granted pursuant to the prior approval or the letter of intent." 12.1. Notification of 9th March, 2018 reads as under: "9. Notification of 9th March, 2018 reads as under: "9. In the said rules, in rule 29, for sub-rule (2), the following sub-rule shall be substituted, namely: (2) Without prejudice to sub-rule (1), where before the commencement of these rules, the Government has communicated a prior written approval for grant of quarry lease to an applicant; or if a letter of intent has been issued in writing to an applicant by the Government to grant a quarry lease, the quarry lease shall be granted in accordance with the provisions of sub-rules (3) to (6) (inclusive): Provided that, if an applicant has applied for and obtained: (a) an environmental clearance; or (b) an approval for change in land use to non-agricultural purposes; or (c) an approval for mining plan, for conducting mining operations over the proposed lease area governed by these rules, prior to the commencement of these rules: Provided further that, such person shall make a written representation before the Government with relevant documents and if Government deems fit, shall issue letter of intent, which shall entitle such person to obtain a quarry lease, in the same manner as if such letter of intent was issued before the commencement of these rules." 13. Considering the aforesaid facts and circumstances and having satisfied that the petitioner has in his favour, LOI to grant of quarry lease and that is also prior to the commencement of Rules, 2017, which are given effect from 24.05.2017 under sub-rule (3), it is for the Government to issue an order in writing for grant of quarry lease to the petitioner. It is only after such order, the petitioner is required to undertake necessary formalities and provide necessary sanction/clearances from the authorities within stipulated period. Upon failure to pass an order for grant of quarry lease, it would not be possible for the petitioner to provide such necessary clearances and that too within stipulated period, which otherwise lead to forfeiture of their rights under the quarry lease. 14. Upon failure to pass an order for grant of quarry lease, it would not be possible for the petitioner to provide such necessary clearances and that too within stipulated period, which otherwise lead to forfeiture of their rights under the quarry lease. 14. In view of the aforesaid, it is directed that the Government shall pass an order in writing within a period of four weeks from the date of receipt of this order, for grant of quarry lease to the petitioner in accordance with the Condition mentioned in the LOI with further condition as under: (I) The petitioner shall file an undertaking before the District Collector, Jamnagar within a period of two, weeks from today to the effect that the petitioner shall not commence or carry out any-mining activity in the area in question till the environmental clearance and other conditions as mentioned in the letter of Intent are fulfilled, as provided under the Mines and Minerals (Development and Regulation) Amendment Act, 2015 is obtained by the petitioner. 15. In view of the above, the present petition stands allowed in the aforesaid terms. Direct service is permitted." 5. In view of the aforesaid, it is for the Government to issue an order in writing for grant of quarry lease to the petitioner. It is submitted that the Rules came into effect from 24-05-2017 and therefore, period of four years is to expire on 23-05-2021. However, on account of the condition as mentioned, the matter did not progress beyond the LOI and no order for grant of quarry lease was passed in favour of the petitioner. It is only after such order, the petitioner is required to undertake necessary formalities and provide necessary sanction/clearances from the Authorities within a stipulated period. Upon failure to pass an order for grant of quarry lease, it would not be possible for the petitioner to provide such necessary clearances and that too within a stipulated period, which otherwise lead to forfeiture of their rights under the quarry lease. 6. Upon failure to pass an order for grant of quarry lease, it would not be possible for the petitioner to provide such necessary clearances and that too within a stipulated period, which otherwise lead to forfeiture of their rights under the quarry lease. 6. In view of the aforesaid, it is directed that the Government shall pass an order in writing on or before 20.05.2021 for grant of quarry lease to the petitioner in accordance with the Condition mentioned in the LOI with further condition as under: (I) The petitioner shall file an undertaking before the District Collector, Kutch within one week from today to the effect that the petitioner shall not commence or carry out any mining activity in the area in question till the environmental clearance and other conditions as mentioned in the letter of Intent are fulfilled, as provided under the Mines and Minerals (Development and Regulation) Amendment Act, 2015 is obtained by the petitioner. 7. The petition is allowed in 'the aforesaid terms. Rule is made absolute with no order as to costs. 8. Copy of the order to be communicated to Mr. Ishan Joshi, learned AGP for onwards communication. In addition to regular mode of service and service by Email by the Registry, Direct Service by email by the petitioner is also permitted.