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Gujarat High Court · body

2022 DIGILAW 1159 (GUJ)

ARVINDBHAI THAKORBHAI KAYASTH v. STATE OF GUJARAT

2022-09-30

NIRZAR S.DESAI

body2022
ORDER : 1. Learned advocate Ms. Pandya for learned advocate Ms. Kruti Shah has tendered draft amendment. The same is taken on record and granted. Learned advocate for the petitioner is directed to carryout amendment forthwith. 2. By way of this petition, the petitioner has made multi-fold prayers. However, the principle grievance of the petitioner is that lease of the petitioner has not been renewed though the Joint Secretary, Industries and Mines Department passed an order on 19.06.2014 in favour of the present petitioner condoning the delay of 178 days and directing the Collector, Vadodara to initiate the procedure for approving the renewal of quarry lease as prayed for by the petitioner. 3.1 Learned advocate Ms. Shah submitted that in the year 2006, the petitioner was granted quarry lease of ordinary sand opposite survey no. 284 at the bank of Orsang River admeasuring 07-95-00 Hec. Are. Sq Mtr situated at Village-Jabugam, Taluka Bodeli, District Chhotaudepur, District Vadodara initially for a period of three years and pursuant to the aforesaid permission an agreement was executed on 23.04.2007. Thereafter, in the year 2010, further extension was granted to the petitioner for quarry lease. However, the said lease was to expire on 24.04.2010 and, therefore, when the petitioner made an application for renewal of the aforesaid quarry lease, the renewal application was rejected by the District Collector vide order dated 15.09.2010. 3.2 Against the order dated 15.09.2010 passed by the Collector, the petitioner preferred an appeal to the appellate authority and the appellate authority vide order dated 07.07.2012 quashed and set aside the order dated 15.09.2010 and remanded the matter back to the Collector, Vadodar. 3.3. Upon remand, the Collector, Vadodara vide order dated 22.07.2013 rejected the application of the petitioner in the Remand Case and the said order was challenged before the Revisional Authority i.e. Secretary, Geology and Mining Department, State of Gujarat wherein vide order dated 19.06.2014 the learned Joint Secretary, Industries and Mining Department condoned the delay of 178 days and passed an order directing the Collector to initiate the proceedings of approval of renewal of quarry lease. 3.4 Though the order was passed on 19.06.2014 and thereafter vide communication dated 09.12.2015 the Geologist, Geology Science and Mineral Department, Chhotaudepur informed the petitioner to pay the penalty of Rs. 5,000/- and asked for submission of environmental clearance certificate and mining plan. 3.4 Though the order was passed on 19.06.2014 and thereafter vide communication dated 09.12.2015 the Geologist, Geology Science and Mineral Department, Chhotaudepur informed the petitioner to pay the penalty of Rs. 5,000/- and asked for submission of environmental clearance certificate and mining plan. Thereafter Collector, Chhotaudepur wrote a letter dated 10.12.2015 to Deputy Secretary, Revisional Authority, Industries and Mines Department, Newa Sachivalaya, Gandhinagar requesting for guidance about the fact that period of quarry lease got over on 22.04.2013. 3.5 Vide communication dated 21.04.2015 the Deputy Secretary opined that when there is no specific date is mentioned, in that case, the order is required to be executed from the date of the order. Thereafter, for reasons best known to the authorities, the aforesaid order was not complied with and once again the petitioner was asked to pay payment of Rs. 5,000/- towards penalty which was paid by the petitioner, however, renewal was not granted in favour of the petitioner. 3.6 It is the grievance of the petitioner that thereafter in the year 2016, the petitioner was asked to give bank guarantee and to cure the defects in respect of mining plan and petitioner having complied with the directions in respect of mining plan and as it was not in the hands of the petitioner to get the environmental clearance certificate, which was applied for by the petitioner, the Collector once again called the petitioner for hearing. However, no decision was taken by the authority. 3.7 Thereafter it is the case of the petitioner that though the order of the Joint Secretary was passed on 19.06.2014, after delay of almost seven years, vide communication dated 13.10.2021, the Collector, Chhotaudepur made proposal for review of the order dated 19.06.2014 to the Joint Secretary who is reviewing authority. 3.8 The petitioner has, along with other prayers by way of draft amendment which is submitted today, challenged the proceedings of review also as the said was proposed after period of seven years and without any cogent reasons. 4. Heard learned advocate Ms. Shah with learned advocate Ms. Pandya for the petitioner and learned Assistant Government Pleader Mr. Sahil Trivedi for the respondent State. 5. Learned advocate Ms. 4. Heard learned advocate Ms. Shah with learned advocate Ms. Pandya for the petitioner and learned Assistant Government Pleader Mr. Sahil Trivedi for the respondent State. 5. Learned advocate Ms. Shah submitted that the order dated 19.06.2014 is self-explanatory and it is clearly stated in the order that the matter was sent back to Collector only for the purpose of initiating proceedings for the purpose of approval of renewal of quarry lease. Despite that clear order, respondents did not act upon the said order for a period of seven years and after a period of seven years, now they have sought to review the aforesaid order. She submitted that after delay of seven years, without there being any justifiable reasons, such exercise of seeking review of the earlier order dated 19.06.2014 is not permissible and, therefore, the same is illegal and requires to be quashed and set aside. 6. Learned Assistant Government Pleader Mr. Sahil Trivedi vehemently opposed the petition and submitted that the authority is within its right to review the order made by the authority earlier. The Collector, Chhotaudepur has, vide communication dated 13.10.2021, proposed for review of the earlier order passed by the Joint Secretary in larger interest as well as on the ground that at the time when quarry lease was granted to the petitioner, Gujarat Minor Minerals (Concession) Rules, 2010 which were not in force in the year 2021 when the proposal for review was sent. Therefore, learned Assistant Government Pleader Mr. Trivedi submitted that the proceedings for review of the order dated 19.06.2014 cannot be said to be illegal and unjust proceedings or proceedings without jurisdiction and prayed for dismissal of the present petition. 7.1 I have heard learned advocates for the respective parties and perused the record and considered the submissions made by learned advocates for the parties. Record reveals that vide order dated 19.06.2014 which is detailed order, the Joint Secretary directed the Collector to initiate necessary proceedings for grant of approval to the application for renewal of quarry lease by condoning the delay of 178 days. Further, thereafter twice the petitioner has paid penalty of Rs. 5,000/- and complied with necessary requirements which were asked for by the respondent authority from time to time. Further, thereafter twice the petitioner has paid penalty of Rs. 5,000/- and complied with necessary requirements which were asked for by the respondent authority from time to time. The only requirement that the petitioner could not fulfill was to provide environmental clearance certificate as the petitioner applied for the same but the same was not renewed by the authority and the application of the petitioner is still pending with the authority. Therefore, it is very crystal clear that vide order dated 19.06.2014 the authority had directed the Collector to give approval to the application for renewal. However, the said order was not acted upon for one reason or another for a period of seven years and after period of seven years, without any justifiable reason, vide order dated 13.10.2021 Collector, Chhotaudepr proposed review of the earlier order dated 19.06.2014. 7.2 In between the Rules governing the grant and renewal of lease were changed. Earlier Gujarat Minor Minerals (Concession) Rules, 2010 (‘Rules 2010’ for short) was in force which were subsequently replaced by Gujarat Minor Minerals (Concession) Rules, 2017 (‘Rules 2017’ for short) and, therefore, those ‘Rules 2017’ are in force. It is the case of the petitioner that it is not on account of any lapse on the part of the petitioner. The petitioner’s application for renewal has been rejected. As the petitioner has fulfilled all the requirements in respect of whatever documents which were asked for by the authority. It was only environmental clearance certificate which the petitioner could not produce at the relevant point of time and as the application of the petitioner was pending before the authority and the same is still pending. In between, after a period of seven years if an order is taken in review without any justifiable reason only with a view to wipe out effect of the earlier order, the aforesaid order as well as proceedings initiated by the authority can be said to be without any justifiable reason as the proposal, review proceedings as well as the affidavit filed by the respondent authority do not justify the aforesaid action and, therefore, the aforesaid action of initiating review proceeding is required to be quashed and set aside and the same is quashed and set aside accordingly. 7.3 The respondent authority is directed to consider the case of the petitioner as ‘saved case’ as the order dated 19.06.2014 was in favour of the petitioner but it was not acted upon by the respondent authorities during the time when the 2017 Rules replaced the Rules 2010, it was not the fault of the petitioner that the petitioner could not submit environmental clearance certificate in time. Therefore, authority is directed to consider the case of the petitioner as saved case. The application for approval for renewal of quarry lease be decided by the Collector as expeditiously as possible preferably within a period of six weeks from the date of the receipt of the order. 8. With the aforesaid observations and directions, the present petition is disposed of.