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2024 DIGILAW 1728 (GUJ)

Manojbhai Ramanbhai OD v. State Of Gujarat

2024-08-14

SANGEETA K.VISHEN

body2024
ORDER : Sangeeta K. Vishen, J. By this petition, the petitioner, has prayed for quashing and setting aside the communication/order dated 10.05.2023 of the respondent authorities, with a further direction to hold and declare that the lease of the petitioner, falling under sub-rule (3) of Rule 29 of the Gujarat Minor Mineral Concession Rules, 2017 (hereinafter referred to as the “Rules of 2017”), is deemed to have been extended as per clause (b) of sub-rule (1) of Rule 12 of the Rules of 2017 upto 31.03.2025. 2. Mr Satyam Chhaya, learned advocate for the petitioner submitted that the application was filed by the petitioner with respect to the land of village Jampura, Taluka: Songadh District: Tapi for the Survey Nos.43, 46 and 47 Tapi River Bed. Vide order dated 31.03.2011, the application was rejected and thereafter, the petitioner had approached Secretary, Mines and Minerals Department, by filing an application, which came to be allowed with a direction to the Collector to reconsider the application for grant of lease. It is thereafter, the letter of intent (hereinafter referred to as "the LOI") was issued by the competent authority on 18.10.2014 and the grant order was issued by the District Collector on 29.12.2018 and followed by execution of the lease deed on 15.01.2019 for 5 years. 3. It is submitted that the issue involved in the captioned writ petition is identical to the issue raised and decided in the case of Shree Dhara Minerals and Mines vs. State of Gujarat & Ors. in Special Civil Application No. 8850 of 2022 and allied matters and would be governed by the common oral judgment dated 26.07.2024 passed by this Court. It is therefore urged that appropriate orders be passed. 4. Heard the learned advocates appearing for the respective parties and considered the documents available on record. 5. It is not in dispute that the issues and grievances raised in the captioned writ petition are similar to those in the case of Shree Dhara Minerals and Mines (supra). The captioned writ petition, would be governed by the judgment passed in the said group of writ petitions. This Court in the said case, has held and observed that clause (b) of sub-rule (1) of Rule 12 is a provision extending the period of quarry leases which are either “granted or renewed” before the commencement of the Rules of 2017, i.e. 24.05.2017. This Court in the said case, has held and observed that clause (b) of sub-rule (1) of Rule 12 is a provision extending the period of quarry leases which are either “granted or renewed” before the commencement of the Rules of 2017, i.e. 24.05.2017. It has been held and observed that clause (b) of sub-rule (1) of Rule 12 of the Rules of 2017 would apply only to the cases wherein, the lease is granted and is in currency, prior to the coming into force of the Rules of 2017. While also considering the provisions of Rule 29, it has been pointed out that on and after the date of commencement of the Rules of 2017, all the quarry leases in respect of minor minerals specified, would be governed by sub-rule (3) of Rule 12 read with Rule 29 of the Rules of 2017 for a period of five years only and those cases, after expiry of five years, would be governed as per the Rules of 2017 i.e. by auction, which is the principal object behind the Rules. Paragraphs 16 to 26 of the case of Shree Dhara Minerals and Mines (supra) are set out herein below for the ease of reference: “16. Center to the issue, is Rule 12, which is extracted hereinbelow; “12. Paragraphs 16 to 26 of the case of Shree Dhara Minerals and Mines (supra) are set out herein below for the ease of reference: “16. Center to the issue, is Rule 12, which is extracted hereinbelow; “12. Period of the quarry lease.- (1) In case of: (a) all minor minerals specified in Part A-II or Part B of Schedule III, the period of quarry lease granted or renewed before the date of commencement of these rules, shall be extended and be deemed to have been extended up to a period ending on March 31, 2030 for the quarry leases granted on land owned by the Government; upto a period ending on March 31, 2035 for the quarry leases granted on land not owned by the Government with effect from the date of expiry of the period of renewal last made or till the completion of period of quarry lease, if any, whichever is later, subject to the condition that all the terms and conditions of the lease have been complied with; and (b) minor minerals specified in Part A-I of Schedule III, the period of the quarry leases granted or renewed before the date of commencement of these rules, shall be extended and be deemed to have been extended up to a period ending on March 31, 2022 with effect from the date of expiry of the period of renewal last made or till the completion of period of quarry lease, if any, whichever is later, subject to the condition that all the terms and conditions of the lease have been complied with. (2) The Government shall issue a written intimation to all existing quarry lease holders regarding the extension of lease period pursuant to sub-rule (1). The quarry lease holder shall, within thirty days of receipt of such intimation, complete all formalities with respect to such extension including payment of stamp duty for the extended period of quarry lease deed, if applicable. (3) On and from the date of commencement of these rules, all quarry leases shall be granted for a period of: (a) five years in case of minor minerals specified in Part A-I of Schedule III; and (b) thirty years in case of minor minerals specified in Part A-II or Part B of Schedule III. (3) On and from the date of commencement of these rules, all quarry leases shall be granted for a period of: (a) five years in case of minor minerals specified in Part A-I of Schedule III; and (b) thirty years in case of minor minerals specified in Part A-II or Part B of Schedule III. (4) Upon expiry of the period of the lease specified in sub-rule (1) or sub-rule (2), the lease shall be put up for auction as per the procedure specified in CHAPTER II : Provided that any holder of a quarry lease granted, where the mineral is used for captive purpose, shall have the right of first refusal at the time of auction held for such quarry lease after the expiry of the quarry lease period, in the following manner: (a) to be eligible to exercise the right of first refusal, the lessee shall comply with the conditions of the quarry lease till its expiry; (b) prior to publication of the notice inviting tender, the Government shall provide a written notice to the lessee requiring the lessee to specify its willingness or non- willingness to exercise the right of first refusal in writing, within a period of thirty days of receipt of such notice; (c) the notice inviting tender shall specify that the lessee holding the lease prior to expiry of the quarry lease has the right of first refusal and shall also specify his willingness or non-willingness specified pursuant to clause (b), if any; (d) upon conclusion of the Second Round of Auction as specified in sub rule (2) of rule 7, the Government shall issue a written notice to the lessee seeking written confirmation of his willingness to exercise the right of first refusal within a period of seven days of conclusion of the Second Round of Auction; (e) the notice given under clause (d) shall be acknowledged by the lessee; (f) the lessee shall, within a period of fifteen days of receipt of the notice issued under clause (d), exercise the right of first refusal in writing to the Government, failing which it shall be construed that the lessee is not desirous of exercising the right of first refusal and the preferred bidder shall be entitled to a quarry lease in the manner provided in rule 7; and (g) if the lessee exercises the right of first refusal in terms of clause (f) and matches the highest final premium offer, the lessee shall be deemed to be the preferred bidder in place of the earlier preferred bidder declared after the Second Round of Auction and shall be entitled to the quarry lease in the manner provided in rule 8. Explanation: For the purposes of the proviso, the term “captive purpose” shall mean the use of more than fifty per cent of the entire quantity of mineral extracted from the quarry lease in a manufacturing unit owned by the lessee.” 17. Rule 12 of Rules of 2017 provides for period of quarry lease. Sub-rule (1), deals with the quarry leases. Clause (a) of sub-rule (1) deals with the minor minerals specified in Part A-II or Part B of Schedule III whereas, clause (b) of sub-rule (1) deals with the minor minerals specified in Part A-I of Schedule III. Relevant, for the present purpose, is clause (b) of sub-rule (1) of Rule 12 which provides that for the minor minerals specified therein, the period of quarry lease granted or renewed before the date of the commencement of the Rules shall be extended and be deemed to have been extended upto a specified period. Initially, the said period was upto 31.03.2020 which, by way of an amendment, was extended from time to time and lastly, upto 31.03.2025. Sub-rule (2) of Rule 12, requires the Government to issue a written intimation to all the existing quarry lease holders regarding the extension of lease period pursuant to sub-rule (1) and the obligation, is upon the quarry lease holder to complete all the formalities with respect to the extension within the stipulated period. Sub-rule (3) of Rule 12, states that on and from the date of commencement of the Rules, all quarry leases shall be granted for a period of five years in case of minor minerals specified in Part A-I of Schedule III and thirty years in case of minor minerals specified in Part A-II or Part B of Schedule III. As per sub-rule (4), upon expiry of the period of lease specified, inter alia, in sub-rule (2), the lease shall be put up for auction. 18. Moreover, Chapter II titled ‘quarry lease’ deals with grant of quarry lease, bidding parameters, notice inviting tender and tender documents, auction process, grant procedure, so on and so forth. Rule 12 which is forming part of Chapter II deals with the period of quarry lease and clause (b) of sub-rule (1) of Rule 12 deals with the minor minerals specified in Part A-I of Schedule III. Rule 12 which is forming part of Chapter II deals with the period of quarry lease and clause (b) of sub-rule (1) of Rule 12 deals with the minor minerals specified in Part A-I of Schedule III. It suggest that the leases “granted or renewed”, before the date of commencement of the Rules, shall be extended and be deemed to have been extended upto a specified period. Textual reading of the said provisions, clearly suggest that the quarry leases, should be in currency and is a condition precedent for being covered under the said provisions. Clearly, it does not speak about the applications which are pending consideration or wherein the process has reached halfway through. Pertinently, as a necessary corollary, it follows that there has to be existing quarry lease in favour of the lessee. In this behalf, relevant would be sub-rule (2) of Rule 12 which provides for a written intimation to all the existing quarry lease holders by the State Government regarding the extension of lease period as indicated therein. The emphasis is on “existing quarry lease holders”. Therefore, sub-rule (1) of Rule 12 is a provision extending the period of the quarry leases which are either “granted or renewed” before the commencement of the Rules of 2017 i.e. 24.05.2017. 19. Also, in the erstwhile regime, Rule 10 of the Rules of 2010, was dealing with ‘grant of quarry lease’. The same, reads thus: “10. Grant of quarry lease. (1) On receipt of an application for the grant of a quarry lease under rule 6, the Competent Authority after making such enquiries as it deems fit, may grant the quarry lease over a part or the whole of the area applied for, to the applicant. When an application is refused or grant with reduced in area, the Competent Authority shall communicate the reasons of its refusal or, as the case may be, reduction in area, in writing to the applicant. When an application is refused or grant with reduced in area, the Competent Authority shall communicate the reasons of its refusal or, as the case may be, reduction in area, in writing to the applicant. In case where there are more than one applicant for the same land or the land has been distributed, it shall communicate the reasons of refusal in writing to the applicants to whom such lease is not granted within seven days of granting the quarry lease or leases for the same land: Provided that before granting the quarry lease in the Schedule Area, the Competent Authority shall obtain the recommendations of the concerned Gram Sabha where the area of quarry is situated. (2) Where a quarry lease is granted under sub-rule(1), the requisite lease deed shall be executed in nine copies within three months of the date of order sanctioning the lease and if no such deed is executed within the said period, an order granting the lease shall be deemed to have revoked: Provided that where the Competent Authority is satisfied that the applicant is not responsible for the delay in the execution of the lease deed, he may permit the execution of the lease deed even after the expiry of the said period of three months. In any case, the further period shall not exceed one year from the date of sanction of lease. For the period of more than one year, the matter may be referred to the Government, whose decision shall be final. (3) The lease deed shall be executed in Form D or in a form as near thereto as the circumstances of each case may require.” 20. Sub-rule (1) of Rule 10 of the Rules of 2010, inter alia, provides for submission of the application and grant of quarry lease by the competent authority. Sub-rule (2) read with sub-rule (3) of Rule 10, require execution of the lease deed within the stipulated period and in a prescribed form ‘D’. Form ‘D’ contains various parts and it is only upon execution of lease deed, that the lessee would be at liberty to carry out the mining work. In absence of any lease deed executed, it is difficult to perceive that the lease can be said to be granted or in existence. 21. The provisions are clear and unambiguous and shall not detain this Court any further. In absence of any lease deed executed, it is difficult to perceive that the lease can be said to be granted or in existence. 21. The provisions are clear and unambiguous and shall not detain this Court any further. Hence, in the considered opinion of this Court, the provisions of clause (b) of sub-rule (1) of rule 12 of the Rules of 2017 would apply only to the cases wherein, the lease is granted and is in currency, prior to the coming into force of the Rules of 2017, with effect from 24.05.2017. 22. Rule 29 of the Rules of 2017, since is also relevant, the same is extracted hereinbelow, for ease of reference: “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) Without prejudice to sub-rule (1), where before the commencement of these rules, the Government has communicated a prior written approval for grant of a 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. (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 a 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. (4) The order for grant of a quarry lease shall be in writing and shall inter alia also specify that the person in whose favour the order has been issued shall be required to furnish a performance security in accordance with such order in the form of a bank guarantee as per the format specified in Form A or a non- interest bearing security deposit. (5) A quarry lease deed shall be executed in the format specified in Form B by the Government within thirty days of the date of completion of the conditions specified in sub-rule (4) and shall be subject to the provisions of the Act and the rules made thereunder. (5) A quarry lease deed shall be executed in the format specified in Form B by the Government within thirty days of the date of completion of the conditions specified in sub-rule (4) and shall be subject to the provisions of the Act and the rules made thereunder. (6) Any letters of intent granted pursuant to an auction process in the State shall continue to be governed by the tender documents relating to such auctions and a quarry lease deed shall be executed in the format specified in Form F by the Government within such period as specified in the grant order. The provisions of sub-rule (2) to (5) shall not apply to such letters of intent: Provided that save for the right to receive a quarry lease pursuant to the letter of intent, these rules shall apply to quarry lease granted pursuant to the letter of intent. (7) The date on which a duly executed quarry lease deed is registered shall be the date of commencement of the quarry lease, and the holder of the letter of intent shall ensure that it achieves registration of the quarry lease deed within thirty days from the date of its execution.” 23. Pertinently, Rule 29 of the Rules of 2017 governs existing applications and the right of holder of the LoI. By virtue of sub-rule (1) of Rule 29, all applications for grant of quarry lease, received prior to the date of commencement of the Rules of 2017 i.e. 24.05.2017, shall be rendered ineligible and nothing further remains to be done. Sub-rule (2) which is in the nature of an exception carved out, provides that where before the commencement of the Rules, the Government has communicated a written approval before grant of a quarry lease to an applicant or LoI has been issued, the quarry lease shall be granted in accordance with the provisions of sub-rules (3) to (6). Proviso to sub-rule (2), contains further eventualities, namely, environmental clearance, approval for change in land use and approval for mining plan etc. Sub-rule (3), makes a provision for issuance of the order by the Government for grant of quarry lease to holder of the LoI. Sub-rule (4) of Rule 29, provides for passing of the order and specify the person in whose favour the order has been issued, coupled with the requirement of furnishing the performance security as specified in form ‘A’. Sub-rule (3), makes a provision for issuance of the order by the Government for grant of quarry lease to holder of the LoI. Sub-rule (4) of Rule 29, provides for passing of the order and specify the person in whose favour the order has been issued, coupled with the requirement of furnishing the performance security as specified in form ‘A’. Sub-rule (5), says about execution of the quarry lease as specified in form ‘B’ by the Government within stipulated period. Sub-rule (6) deals with the LoI. Sub-rule (7) of Rule 29 provides that the date on which the quarry lease is registered can be said to be the date of its commencement. 24. It is sought to be contended that in the cases of Rule 29, clause (b) of sub-rule (1) of Rule 12 would apply and hence, the lease shall be extended upto 31.03.2025. It is required to be noted that the said impression and contention is a misconception on the part of the petitioners considering the language of Rule 29 inasmuch as Chapter VI governs the grant of quarry lease pursuant to ‘existing approvals’. The title also throws sufficient light which says ‘existing applications’ and right of holder of LoI. Sub-rule (1) of Rule 29, makes ineligible all the applications for grant of a quarry lease received prior to the date of commencement of the Rules of 2017 i.e. 24.05.2017. Therefore, the intention is clear that, on an after the date of commencement of the Rules of 2017, if any applications are pending, the said applications, would be rendered ineligible. Eventualities prescribed in sub-rule (2) of Rule 29 read with proviso, it is clear that those cases, are to be treated as saved cases and would be considered for grant of quarry lease. In any event, those cases, would not fall within the category of ‘granted’. Therefore, on and after the date of commencement of the Rules of 2017, all the quarry leases in respect of minor minerals specified, with which this Court is concerned, would be governed by sub-rule (3) of Rule 12 read with Rule 29 of the Rules of 2017 for a period of 5 years only. Those cases after expiry of 5 years, would be governed as per Rules of 2017, that is, by auction, which is the principal object behind the Rules. 25. Those cases after expiry of 5 years, would be governed as per Rules of 2017, that is, by auction, which is the principal object behind the Rules. 25. In some of the cases, it is also sought to be argued that after the execution of the lease deed and as per the Rules of 2017, the leases have been extended. Assuming that the leases have been extended, that by itself will not cover the case of the petitioners within the clause (b) of sub-rule (1) of Rule 12 of the Rules of 2017. It is also sought to be argued that the cases where the grant orders have been issued by the Collector, prior to the coming into force of the Rules of 2017 i.e. 24.05.2017, be treated in a different category, so as to cover it within clause (b) of sub-rule (1) of Rule 12 of the Rules of 2017. Similarly, there are cases, wherein, the State Government while quashing the order of the Collector, has granted the quarry lease and directed to complete the procedure of executing the quarry lease. In either of the eventualities, no quarry lease has been executed prior to 24.05.2017. In absence of any lease deed executed, it is not possible to accept the said contentions, as for covering within the purview of clause (b) of sub-rule (1) of Rule 12, there has to be lease already in currency. It is true that the orders are passed by the State Government prior to 24.05.2017 but with no lease deed in place, which is nothing but a fortuitous circumstance rendering the petitioners ineligible to avail of the benefits of the provisions of clause (b) of sub-rule (1) of Rule 12 of the Rules of 2017. 26. It is by now well settled that once the Rules are in force, the cases are to be considered as per the Rules prevailing. In this connection, the judgment in the case of State of Gujarat vs. Giganbhai Nathubhai Karotara (supra), would be of a little help. 26. It is by now well settled that once the Rules are in force, the cases are to be considered as per the Rules prevailing. In this connection, the judgment in the case of State of Gujarat vs. Giganbhai Nathubhai Karotara (supra), would be of a little help. One of the issues before the Division Bench, was: “i. Whether in view of the statutory rules having come into force on 24.05.2017, the authorities can be directed to decide the applications for grant of quarry lease uninfluenced by the Rules of 2017 ?” The Division Bench, in paragraphs 5.4, 5.5, 5.5.1 and paragraph 6 has held and observed thus: “5.4 As per Rule 29, the applications of the petitioners were not eligible. In their case, no prior written approval was granted by any competent authority for grant of lease, no Letter of Intent was issued to bring about the entitlement or consideration of the applications. The Rules of 2017 had already come into play with effect from 25.04.2017. The Revisional Authority had only remanded the case. Even otherwise, the quarry lease could not be granted bypassing the statutory Rules in force. 5.5 Once the Rule hold the field, which provided a particular method of disposal of quarry lease applications, the have to be applied to all cases. The undecided pending applications could not be permitted to govern by earlier procedure. The Collector rightly treated the applications of the petitioners to be ineligible. As the method of auction was provided in the new Rules, it was always open to the petitioners to participate in the auction as and when held for grant of quarry in respect of the land they requested for. 5.5.1 Merely because the Revisional Authority remanded the case before coming into force of the Rule, it would not create any right for the petitioners for grant of quarry lease. Nor there is a substance in the contention that the Collector decided after passage of time and the statutory Rules in the meantime came into force. The time element of coming into force of the Rules and the decision of the Collector treating the applications of the petitioners ineligible under the Rules was only fortuitous and nothing could be make out of it. 6. The time element of coming into force of the Rules and the decision of the Collector treating the applications of the petitioners ineligible under the Rules was only fortuitous and nothing could be make out of it. 6. The inescapable conclusion emerges is that the Gujarat Minor Mineral Rules, 2017, as they came into force, the applications pending for grant of quarry lease were not liable to be considered as per the position obtained before the Rules. The new statutory Rules are to be necessarily applied for all cases of grant of quarry lease. The petitioners' applications were rendered ineligible and redundant.” 6. Considering the similarity, which aspect, is fairly conceded by the learned advocate appearing for the petitioner, the principle laid down in the judgment of Shree Dhara Minerals and Mines (supra) applies on all fours to the facts of the present case. Hence, the challenge to the communication dated 10.05.2023 issued by the Geologist, Geology & Mining Department, is not tenable. 7. In view of the above referred discussion, the captioned writ petition does not warrant interference and is dismissed accordingly. No order as to costs.