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2024 DIGILAW 659 (GUJ)

State of Gujarat v. Arvindbhai Thakorbhai Kayasth

2024-03-27

ANIRUDDHA P.MAYEE, SUNITA AGARWAL

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JUDGMENT : SUNITA AGARWAL, J. The intra-court appeal filed by the State is directed against the judgment and order dated 30.09.2022 passed by the learned single Judge, whereby a direction has been given to consider the application for renewal of quarry lease of the petitioner as ‘saved case’ and to decide the same by the Collector within the time given therein. The learned single Judge has opined that the case of the petitioner has to be considered as a ‘saved case’ as the order in revision dated 19.06.2014 was passed in favour of the petitioner, but it was not acted upon by the respondent authorities during the time when 2017 Rules namely Gujarat Minor Mineral Concession Rules, 2017 (in short as the ‘Rules 2017’) replaced the earlier Rules namely Gujarat Minor Mineral Concession Rules, 2010. It is noted by the learned single Judge that it was not the fault of the petitioner that the petitioner could not submit an environment clearance certificate in time. 2. A brief narration of facts relevant to decide the controversy are necessary to be noted at the inception. The respondent herein namely the original petitioner was granted quarry lease of ordinary sand vide agreement dated 23.04.2007 for a period of three years. When the lease was about to expire on 24.04.2010, an application was made by the petitioner for the purpose of extension of the order, which was rejected by the Collector vide order dated 15.09.2010 on the ground that the said application was made after a delay of 178 days and was in complete violation of the then existing rules. The original petitioner preferred an appeal against the order of the Collector dated 15.09.2010, which was allowed by the order dated 7.7.2012 and the matter was remanded back while quashing the order of the Collector, for fresh consideration. Again vide order dated 22.7.2013, the District Collector rejected the application of the petitioner, which gave rise to the Revision Application filed by the original petitioner before the Secretary, Mining Department. The Revisional Authority vide order dated 19.06.2014 condoned the delay of 178 days and directed that the proceedings for renewal of quarry lease be initiated. However, the fact remains that the quarry lease could not be granted to the petitioner despite various communications between the authorities, and in the meantime, 2017 Rules came into force. 3. The Revisional Authority vide order dated 19.06.2014 condoned the delay of 178 days and directed that the proceedings for renewal of quarry lease be initiated. However, the fact remains that the quarry lease could not be granted to the petitioner despite various communications between the authorities, and in the meantime, 2017 Rules came into force. 3. It is brought on the record of the writ petition that in the interregnum after passing of the order dated 19.06.2014 by the Revisional Authority, the Geologist had intimated, on 9.12.2015, to the petitioner to pay the penalty of Rs. 5000/- and to submit environmental clearance certificate and mining plan for further process. Certain clarification was also sought by the Collector about the order dated 19.06.2014 passed by the Revisional Authority. The petitioner presented mining plan in the office of Geologist after payment of Rs. 5000/- as penalty. Vide communication dated 22.09.2016, the petitioner was asked to give the bank guarantee as well as cure the defects in respect of the mining plan. The defects were removed whereafter the mining plan was approved by the Geologist vide order dated 04.03.2017 which was communicated to the original petitioner. On 5.4.2016, the petitioner had applied online for grant of environment clearance certificate. 4. It is stated in the writ petition that on various occasions, hearing was granted by the office of the Collector, but no final decision had been taken. Environment clearance certificate was not granted by the competent authority. The contention is that for the inaction on the part of the respondent authorities in implementing the order of the Revisional Authority dated 19.06.2014, the petitioner cannot be made to suffer, inasmuch as, the petitioner had complied with the conditions of execution of the agreement for renewal of the mining lease for a period of three years, by submission of the mining plan, bank guarantee and on-line application seeking environmental clearance certificate. However, vide communication dated 13.10.2021, the Collector intimated to the Joint Secretary, the Revisional Authority, Geology and Mining Department that the order dated 19.06.2014 passed by the Revisional Authority cannot be implemented, as 2017 Rules came into force wherein there is no provision of renewal of the expired lease, the lease which is not in existence. 5. However, vide communication dated 13.10.2021, the Collector intimated to the Joint Secretary, the Revisional Authority, Geology and Mining Department that the order dated 19.06.2014 passed by the Revisional Authority cannot be implemented, as 2017 Rules came into force wherein there is no provision of renewal of the expired lease, the lease which is not in existence. 5. It was contended in the writ petition that the statutory authorities were required to process the application of the petitioner and the petitioner cannot be faulted for any delay on the part of the respondent authorities. The prayer has been made to quash and set aside the communication dated 13.10.2021 sent by the Collector before the Joint Secretary, Geology and Mining Department, rejecting the case of the petitioner for grant of quarry lease. 6. We may note that the writ petition seeking for quashing of the order dated 13.10.2021 and renewal of quarry lease was filed in the month of February, 2022 with the prayer that, in case, the lease-inquestion was granted to anyone else by the Collector, the same shall be cancelled the possession of vacant and peaceful lease area shall be given to the petitioner. 7. The fact remains that the quarry lease granted in favour of the petitioner had expired on 22.04.2010. After a period of about 12 years from the date of the expiry of the lease, the direction has been issued by the learned single Judge in the judgment and order dated 30.09.2022 to grant the quarry lease in favour of the petitioner by considering his application on the premise that non-grant of environmental clearance certificate in time, cannot be attributed to the fault of the petitioner. The learned single Judge did not advert to the legal position as to whether the case of the petitioner would fall within the meaning of ‘saved casse’ as per the Gujarat Minor Mineral Concession Rules, 2017 and simply assumed that since the order dated 19.06.2014 was passed by the Revisional Authority in favour of the petitioner, the case of the petitioner has to be treated as ‘saved cases’. 8. 8. We may record that with the order passed by the Revisional Authority dated 19.6.2014 simply condoning the delay in filling the application seeking the renewal of lease and relegating the matter to the Collector for processing of the application in accordance with the law, there cannot be and there was no direction to the Collector to grant the renewal of the lease positively. It may also be noted that though the mining plan submitted by the petitioner was approved by the Geologist on 04.03.2017 on certain conditions laid therein, but the petitioner could not fulfill the conditions for grant of the mining lease. A perusal of order dated 04.03.2017 issued from the office of the Geologist indicates that the approval was subject to the condition that it was without prejudice to any other law applicable to the mining lease and that the approval of mining plan was subject to the Forest (Conservation) Act, 1980, the Forest (Conversation) Rules, 1981 and other relevant statutes, orders and guidelines as may be applicable to the lease area from time to time, and without prejudice to any order or direction from any Court of competent jurisdiction. 9. It is evident from the material on record that inspite of getting the mining plan approved, the petitioner did not produce environmental clearance certificate, which was mandatory requirement for grant of the quarry lease. In the meantime, the Gujarat Minor Mineral Concession Rules, 2017 had been notified with effect from 24.05.2017. Sub-rule (1) of Rules 2017 provides that all applications for grant of quarry lease received prior to the date of the commencement of the Rules shall become ineligible. The only exception contained in sub-rule(2) of Rule 29 provides that :- Sub-Rule (2) of Rule 29:- “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)” 10. The exception carved out in sub-rule (2) of Rule, 29 saves only such cases where there is prior written approval for grant of quarry lease or if a Letter of Intent has been issued in writing by the Government to grant quarry lease before commencement of the Rules, 2017. 11. In the instant case, no prior written approval for grant of quarry lease was communicated to the petitioner. The approval of the mining plan vide order dated 4.3.2017 passed by the Geologist was subject to fulfillment of other conditions of grant of quarry lease and would not amount to “prior written approval for grant of quarry lease” within the meaning of sub-rule(2) of Rule 29. Admittedly, no Letter of Intent has been issued in writing by the Government to grant the quarry lease in favour of the petitioner. It may further be clarified that the approval of mining plan by the office of the Geologist vide communication dated 4.3.2017 sent to the petitioner was subject to the conditions which have not been fulfilled by the petitioner. The pending application of the petitioner, therefore, has been rendered ineligible by virtue of Rule 29(1) of the Rules 2017 with the commencement of the said Rule on 24.05.2017. 12. It is also pertinent to note that a tender was issued on 14.03.2020 for auctioning of nine blocks for execution of quarry lease by way of E-auction as per 2017 rules. The land-in-question was also included in the aforesaid tender. The original petitioner did not participate in the E-auction and did not prefer any objection with regard to notifying the land in question for E-auction. A Letter of Intent has been issued vide communication dated 16.01.2021 in favour of one Shri Gaurang Shah. 13. These facts brought on record of the instant appeal by way of affidavit filed by the Joint Secretary of Industries and Mines Department are assailed in the affidavit-in-reply filed by the original petitioner / respondent with the averments that the Collector was very much aware of the case of the original petitioner and, therefore, there was no occasion for the Collector to put the land-in-question for auction. The action of the Collector in putting the land-in-question for auction shows highhandedness on his part. The action of the Collector in putting the land-in-question for auction shows highhandedness on his part. However, the fact remains that in the writ petition filed by the petitioner in the month of February, 2022 to challenge the communication dated 13.10.2021 sent by the Collector to the Joint Secretary, Geology and Mining Department, the factum of auction of the land-in-question for grant of quarry lease has not been disclosed. As noted hereinabove, a prayer was made in the writ petition to cancel lease, if any, granted to anyone else by the Collector over the land-in-question and handover the vacant and peaceful possession of the lease area to the petitioner, but the lesee in whose favour the Letter of Intent was issued on 16.01.2021 much prior to the institution of the writ petition, has not been impleaded. 14. Admittedly, the quarry lease granted to the petitioner has not been renewed after its expiry on 22.04.2010. No Letter of Intent was issued nor any written approval for grant of quarry lease was granted in favour of the petitioner prior to the enforcement of 2017 Rules with effect from 24.05.2017. The third party rights over the land-in-question had been created about one year prior to the institution of the writ petition by the petitioner with the issuance of the Letter of Intent on 16.01.2021 in favour of the bidder in the E-auction held on 14.3.2020.] 15. We therefore, find substance in the argument of Mr. Krutik Parikh, the learned Assistant Government Pleader appearing for the appellants that with the enforcement of the Rules 2017, where there is no provision of renewal of the quarry lease, no indulgence could have been granted in favour of the petitioner. The fact that the conditional Letter of Intent had been issued in favour of the petitioner on 5.4.2023 under the threat of contempt, on the basis of the order impugned, will be of no benefit to the petitioner. 16. We may note the submission of the learned counsel Ms. The fact that the conditional Letter of Intent had been issued in favour of the petitioner on 5.4.2023 under the threat of contempt, on the basis of the order impugned, will be of no benefit to the petitioner. 16. We may note the submission of the learned counsel Ms. Kruti Shah for the original petitioner / respondent herein that the penalty was deposited by the petitioner, the mining plan was submitted and approved prior to the enforcement of the Rules 2017 and for the only fact that the environmental clearance certificate was not granted inspite of E-application moved by the petitioner, the petitioner has a case for consideration for grant of quarry lease, for the fact that the delay of 178 days in moving the application for renewal was condoned by the Revisional Authority. It was urged that with the passing of the order dated 19.06.2014 by the Revisional Authority, there was no option before the Collector but to renew the lease to obey the direction of the superior authority. The fact that the renewal application moved by the petitioner was rejected twice on 15.09.2010 and on 22.07.2013 by the Collector merely for the delay shows the highhandedness on the part of the Collector. There was no lapse on the part of the petitioner and even the penalty, as imposed, had been paid within time. The fact that the petitioner had applied for environmental clearance online but the same was not granted by the competent authority, cannot come in the way of the petitioner. All theses submissions made by the learned counsel for the original petitioner/respondent herein do not impress us for the simple reason that vide communication dated 9.12.2015, the Geologist had intimated the petitioner to pay the penalty of Rs. 5000/- and to submit environmental certificate and the mining plan for further process. These directions issued by the Geologist to complete the mandatory requirements for grant of quarry lease could not be fulfilled by the petitioner. 17. 5000/- and to submit environmental certificate and the mining plan for further process. These directions issued by the Geologist to complete the mandatory requirements for grant of quarry lease could not be fulfilled by the petitioner. 17. In view of the abovenoted facts reflected from the record of the writ petition and the instant Letters Patent Appeal, we find that the learned single Judge has grossly erred in law in treating the case of the petitioner in the category of ‘saved cases’ and holding that inspite of the fact that environmental clearance certificate was not produced in time, the petitioner is entitled for consideration of his application for renewal of quarry lease in view of order dated 19.06.2014 passed by the Revisional Authority. The learned single Judge has completely ignored the impact of sub-rule(1) of Rule 29, whereunder only two conditions are prescribed for the ‘saved cases’, firstly where prior written approval for grant of quarry lease was given by the State Government and secondly, where Letter of Intent has been issued in writing by the Government for grant of a quarry lease. As the original petitioner did not fall in any of these categories, the case of the original petitioner could not be treated as a ‘saved case’. 18. Even otherwise, the facts brought on record of the instant appeal reveal that the quarry lease was granted in favour of the third party much prior to the institution of the writ petition by the petitioner. It is evident that the petitioner has not brought the correct and complete facts on the record of the writ petition as the person in whose favour the third party lease-hold right was created and in whose name the quarry lease was subsisting on the date of institution of the writ petition, has not been impleaded. We find substance in the submissions of the learned counsel appearing for the State appellant that the order passed by the learned single Judge directing the Collector for consideration of the Revision Application of the petitioner cannot be sustained. 19. There is no gainsaying that no person can claim any right much less fundamental right that he should be granted the mining lease as a matter of right. 19. There is no gainsaying that no person can claim any right much less fundamental right that he should be granted the mining lease as a matter of right. The procedure prescribed in the Rules 2017 for grant of the mining lease by way of public auction is in conformity with the public policy for creation of right on the public land. 20. The Apex Court in the case of State of Rajasthan and Others vs. Sharwan Kumar Mumawat (2023 SCC OnLine SC 898), in the matter of grant of quarry lease of minor minerals has held that while it is true that the application for renewal should be dealt with within a reasonable time, but the right to have the application disposed of in a reasonable time does not clothe an application for a lease with a right to have the application disposed of on the basis of the Rules in force at the time of making of the application. No one has a vested right to the grant or renew of lease and no one can claim a vested right to have an application for grant or renewal of lease dealt with in a particular way, by applying particular provision. In absence of any vested right in anyone, an application for lease has necessarily to be dealt with in accordance with the rules in force on the date of disposal of the application despite the fact that there is long delay since the making of the application. It was held that where the decision of the authorities was founded in public interest as per the executive policy or law, the court would be reluctant to interfere with such decision by invoking doctrine of legitimate expectation. The legitimate expectation doctrine cannot be invoked to fetter changes in administrative policy if it is in the public interest to do so. The decision-makers’ freedom to change the policy in public interest, cannot be fettered by applying the principle of substantive legitimate expectation so long as the Government does not act in an arbitrary or in an unreasonable manner, the change in policy does not call for interference by the judicial review on the ground of legitimate expectation of an individual or group of individuals being defeated. 21. 21. We may further note that in a recent decision dated 13.10.2023 in Letters Patent Appeal No. 718 of 2023, the Division Bench of this Court has noted the effect of Rule 29 sub-rule (1)(2), sub-rule(6) and held that as per Rule 2019, the applications of the petitioners therein were ineligible as no prior written approval was granted by any competent authority for grant of lease, nor any Letter of Intent was issued to bring about their entitlement. The fact that the Revisional Authority had remanded the case for positive consideration, the quarry lease cannot be granted by-passing the statutory rules in force, which came into force play with effect from 24.05.2017. It was held that once the rule holding the field which provided a particular method of disposal of quarry lease applications, they have to be applied to all cases. Undecided pending applications cannot be permitted to be decided under the earlier procedure. 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 it was held for grant of quarry lease in respect of the land they requested for. Merely because Revisional Authority remanded the case before coming into force of the Rules, 2017, it would not create any right for the petitioners (therein) for grant of quarry lease. Nor there was substance in the contention that the Collector decided the matter after a long passage of time and 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 petitioner (therein) ineligible under the Rules was only fortuitous and nothing could be make out of it. 22. The principle laid down by the Division Bench in the case noted hereinabove, clearly applies to the facts of the instant case. 23. For the above discussion having gone through the merits of the case of the original petitioner herein, we are afraid to agree with the opinion drawn by the learned single Judge in allowing the writ petition. Consequentially, while setting aside the judgment and order dated 30.09.2022 of the learned single Judge, the Letters Patent Appeal is hereby allowed. The writ petition stands dismissed. The Civil Application for stay also stands disposed of accordingly. No order as to costs. Consequentially, while setting aside the judgment and order dated 30.09.2022 of the learned single Judge, the Letters Patent Appeal is hereby allowed. The writ petition stands dismissed. The Civil Application for stay also stands disposed of accordingly. No order as to costs. FURTHER ORDER The prayer made for stay of the operation of the order at the time of delivering the judgment, is hereby rejected.