Gujarat High Court
Dedharota Gram Panchayat & 5 vs State Of Gujarat & 4....Opponent(S) on 27 June, 2017
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/WPPIL/86/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 86 of 2017
With
CIVIL APPLICATION NO. 7179 of 2017
In
CIVIL APPLICATION NO. 6470 of 2017
With
CIVIL APPLICATION NO. 6470 of 2017
In
WRIT PETITION (PIL) NO. 86 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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DEDHAROTA GRAM PANCHAYAT & 5....Applicant(s)
Versus
STATE OF GUJARAT & 4....Opponent(s)
==========================================================
Appearance:
MR MEHULSHARAD SHAH, ADVOCATE for the Applicant(s) No. 1
- 6
MR DM DEVNANI, AGP for the Opponent(s) No. 1 - 3
MR MIHIR JOSHI, SENIOR ADVOCATE WITH MR MTM HAKIM WITH MR
R.K.MANSURI, ADVOCATE for the Opponent(s) No. 5
VIRAL K SHAH, ADVOCATE for the Opponent(s) No. 4
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HC-NIC Page 1 of 20 Created On Wed Aug 16 02:18:56 IST 2017
C/WPPIL/86/2017 CAV JUDGMENT
CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date :27/06/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. By way of this writ petition, which is filed in the nature of Public Interest Litigation, petitioners seek to challenge the order dated 04.07.2015 passed by the respondent State, by which the respondent State has assigned the possession of lease and extended the lease period in terms of Section 8A of Mines and Minerals (Development and Regulation) (Amendment) Act of 2015 (hereinafter referred to as the 'MMDR (Amendment) Act', for short) in favour of respondent No.5. Petitioners have also prayed that the respondent authorities be directed to restrain the respondent No.5 from constructing any road from the Gauchar land bearing Survey No.335/1 of village Dedhrota for mining purpose.
2. Heard learned advocate Mr. Mehul Sharad Shah for the petitioners, learned Senior Counsel Mr. Mihir Joshi assisted by learned advocate Mr. MTM Hakim with learned advocate Mr. R. K. Mansuri for respondent No.5 and learned Assistant Government Pleader Mr. D. M. Devnani for respondent No.1.
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3. Learned advocate Mr. Shah appearing for the petitioners submitted that Survey No.335/1 of village Dedhrota is Gauchar land situated near the bank of river Sabarmati. Revenue entry No.327 came to be recorded in the revenue record on 14.08.1955 to the effect that the land bearing Survey No.335/1 is declared as Gauchar land by an order passed by the Assistant Collector on 30.05.1955. Thereafter, the State Government allotted the said land to Dedhrota Gram Panchayat as Gauchar land and therefore revenue entry No.388 was mutated in the revenue record on 26.05.1957. It is stated that respondent No.5 applied for the land in question for mining purpose. However, the village people objected at the initial stage. It is stated that without considering the objections raised by the village people and without considering the fact that Gauchar land cannot be allotted for mining purpose, the respondent State granted 20 Hectares of Gauchar land to respondent No.5 by an order dated 10.09.1985 for mining lease for bauxite for a period of 20 years at village Dedhrota. Thereafter lease agreement was executed between respondent No.5 and the State.
4. Learned advocate Mr. Shah thereafter contended that the land in question is situated on the bank of river Sabarmati at the height of Page 3 of 20 HC-NIC Page 3 of 20 Created On Wed Aug 16 02:18:56 IST 2017 C/WPPIL/86/2017 CAV JUDGMENT 15 feet from the riverbed and on the hill of bauxite stone. The said hill of bauxite stone acts as a natural protection wall to protect the Gauchar land, agricultural lands and the residential houses of village Dedhrota and Derol against the heavy flood in river Sabarmati during monsoon season. It is submitted that though the lease was granted in favour of respondent No.5, because of the objections taken by the village people, the possession of the said land was not given to the respondent No.5 and therefore there was no mining operation for last 25 years. It is pointed out by learned advocate that the period of lease came to an end in the year 2006. The respondent No.5 did not submit an application for renewal of lease. Thereafter, the respondent No.5 applied for renewal of lease on 30.06.2008. The said application was not decided by the respondent authorities and therefore respondent No.5 filed a petition before this Court. This Court disposed of the said petition by giving direction to the respondent State to decide the application within stipulated time limit. The respondent State thereafter rejected the renewal application submitted by the respondent No.5 by an order dated 12.06.2009. The respondent No.5 therefore preferred revision application under Rule 54 of the Mineral Concession Rules, 1960 before the Secretary, Department of Mines, Page 4 of 20 HC-NIC Page 4 of 20 Created On Wed Aug 16 02:18:56 IST 2017 C/WPPIL/86/2017 CAV JUDGMENT Government of India. By an order dated 30.08.2010, the Secretary, Department of Mines, Government of India remanded the matter back to the State Government for considering the case of the respondent No.5 on merits as per the provisions of the Mines and Minerals (Development and Regulation) Act of 1957 (hereinafter referred to as the 'MMDR Act' for short)and the Rules framed thereunder.
5. Learned advocate Mr. Shah thereafter contended that the respondent No.5 submitted an application on 25.04.2011 to the Principal Secretary, Industries and Mines Department to comply with the order passed by the Revisional Authority. It is submitted that without taking the opinion of the Gram Panchayat and with an ulterior motive and for extraneous consideration, the Geologist by quoting the amendment in the MMDR Act, submitted his opinion that the lease period is required to be extended for a period of 50 years. The respondent State, therefore, by impugned order dated 04.07.2015, extended the lease period in favour of respondent No.5 in terms of Section 8A introduced in MMDR (Amendment) Act.
6. Learned advocate Mr. Shah for the petitioners would contend that the order dated 04.07.2015 Page 5 of 20 HC-NIC Page 5 of 20 Created On Wed Aug 16 02:18:56 IST 2017 C/WPPIL/86/2017 CAV JUDGMENT passed by the respondent State extending the lease period is in violation of the directions issued by the Hon'ble Supreme Court in the case of Jagpal Singh and other v. State of Punjab and others, reported in (2011) 11 SCC 396. It is further contended that the said order is also in violation of the Government Resolution dated 01.04.2015 issued by the State Government. Before extending the period of lease, the Environmental Clearance Certificate has not been obtained. However, it is pointed out that recently by an order dated 15.03.2017, the Gujarat Pollution Control Board has issued the Environmental Clearance Certificate to the respondent No.5.
7. Learned advocate Mr. Shah submitted that Section 8A of the MMDR (Amendment) Act would not be applicable to the present case as the said amendment does not have retrospective effect and would apply only to the existing lease on the date of amendment. It is submitted that in the present case the lease period is over in the year 2006 and therefore also the provisions of MMDR (Amendment) Act would not be applicable.
8. Learned advocate Mr. Shah thereafter submitted that recently the respondent authorities have started construction of road from the Gauchar land with a view to help the Page 6 of 20 HC-NIC Page 6 of 20 Created On Wed Aug 16 02:18:56 IST 2017 C/WPPIL/86/2017 CAV JUDGMENT respondent No.5 and therefore the said action of the respondent authorities is also in violation of the resolution passed by the State Government. Learned advocate has placed reliance upon the map produced on record and submitted that an alternate road is available for the mining activities of other mines holders who are having mining lease for sand. Therefore, it is not proper for the respondent authorities to construct the road for respondent No.5 from the Gauchar land and therefore the respondent authorities be prevented from constructing the road from the Gauchar land.
9. Learned advocate has placed reliance upon the decision of the Hon'ble Supreme Court in the case of Association for Environment Protection v. State of Kerala and Others, reported in (2013) 7 SCC 226. (para 5)
10. Per contra, learned Assistant Government Pleader Mr. Devnani submitted that the respondent State has not committed any error while extending the lease period in terms of Section 8A of MMDR (Amendment) Act. It is contended that the powers are exercised by the State under Section 10 of MMDR Act and under Section 8A of MMDR (Amendment) Act.
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11. Learned AGP thereafter contended that so far as the construction of road is concerned, on 23.10.2015, Dedhrota Gram Panchayat in its General Meeting passed a resolution by which it was resolved to construct the road passing through Survey No.335/1 and 334. Thereafter, it was communicated to the Collector, Sabarkantha on 03.11.2015. Pursuant to the request made by the said Gram Panchayat, estimated cost for construction of road was determined at Rs.49,97,500/- and Rs.49,89,300/- from 0 to 2 kms and 2 to 3.8 kms respectively. After following necessary procedure, order was passed on 24.06.2016 granting approval by the Commissioner, Geology and Mining Department and thereafter necessary instruction was given for construction of road to the District Development Officer, District Panchayat, Sabarkantha. In the meantime, the Executive Engineer, District Panchayat published tender notice for construction of road. At that time, Dedhrota Gram Panchayat raised objections against the construction of road which was in fact approved by the State Government. Taluka Development Officer, therefore, rejected the objections raised by the Panchayat. Thereafter, one of the groups of Dedhrota Gram Panchayat raised objection against the construction of road and therefore the Collector, Sabarkantha passed an order on 21.03.2017 to form Page 8 of 20 HC-NIC Page 8 of 20 Created On Wed Aug 16 02:18:56 IST 2017 C/WPPIL/86/2017 CAV JUDGMENT a committee of five officers and gave directions to submit a report after necessary site inspection. It is contended that the said Committee, after inspection of the site, submitted its report on 30.03.2017, wherein the Committee has informed that the procedure for construction of the road is duly followed.
12. Learned AGP thereafter submitted that as per the resolution passed by the Panchayat in the year 2013 and looking to the accidents which have taken place on the road which is passing through the village, a decision was taken to construct a new road. Till date the construction of more than 50% of the road is already over and therefore it is not proper on the part of the petitioners to object for construction of the road. Learned AGP, therefore, requested that this petition be dismissed.
13. Learned Senior Counsel Mr. Mihir Joshi appearing for the respondent No.5 at the outset submitted that this petition be dismissed on the ground that the petitioners have made misstatement and suppressed the material fact. The petitioners have no locus to prefer the present Public Interest Litigation and therefore only on this count the petition be dismissed. It is pointed out that almost for the same Page 9 of 20 HC-NIC Page 9 of 20 Created On Wed Aug 16 02:18:56 IST 2017 C/WPPIL/86/2017 CAV JUDGMENT relief, earlier a writ petition being Writ Petition (PIL) No. 192 of 2015 came to be filed by the then Sarpanch of petitioner No.1 Gram Panchayat. The said petition was not entertained and was disposed of on the ground that petitioner No.1 is having alternative remedy for resumption of Gauchar land the said petition was premature since the environmental clearance was not granted. It is contended that now the present petition is preferred by petitioner No.1, who is daughter-in-law of petitioner No.1 of Writ Petition (PIL) No.192 of 2015. Further, the petitioner No.3 was also petitioner No.3 in the earlier petition. Thus, when the earlier petition was not entertained by this Court, this petition be dismissed. At this stage, it is further pointed out that now the environmental clearance certificate is granted by Gujarat Pollution Control Board and the same is challenged before the National Green Tribunal and therefore on one hand the said certificate is under challenge before the National Green Tribunal and on the other hand, present petition is preferred. Therefore, on this ground also the present petition be dismissed.
14. Learned counsel thereafter submitted that the petitioner No.1 - Dedhrota Gram Panchayat by written agreement executed on 29.06.1982 had Page 10 of 20 HC-NIC Page 10 of 20 Created On Wed Aug 16 02:18:56 IST 2017 C/WPPIL/86/2017 CAV JUDGMENT given consent for mining activities by the respondent No.5. Thereafter, resolution was also passed on 03.08.1982 to the aforesaid effect. Thus, the respondent State by an order dated 10.9.1985 granted mining lease in favour of respondent No.5 for a period of 20 years. An agreement was also executed on 24.11.1986 pursuant to the aforesaid order passed by the respondent - State. However, the possession of the leased area could not be handed over in spite of repeated request and the application given by the respondent No.5. Thereafter, on 07.07.2008, the respondent No.5 submitted an application for renewal of the mining lease. However, the said application was not decided and therefore the respondent No.5 filed a petition before this Court, wherein this Court directed the respondent
- State to decide the application within stipulated time limit. Thereafter, the respondent- State by an order dated 12.06.2009 rejected the application of the respondent No.5. Therefore, respondent No.5 preferred a Revision Application before the Ministry of Mines, Government of India. It is submitted that the Revisional Authority allowed the said Revision Application by an order dated 27.08.2010 and thereby quashed and set aside the order dated 12.06.2009 passed by the respondent - State and the matter was remanded back to the State Page 11 of 20 HC-NIC Page 11 of 20 Created On Wed Aug 16 02:18:56 IST 2017 C/WPPIL/86/2017 CAV JUDGMENT Government for considering the case on merits as per the provisions contained in MMDR Act and the Rules framed thereunder.
15. The respondent No.5 thereafter made representations to the State and requested to pass an order pursuant to the order passed by the Revisional Authority. In the meantime amendment by way of MMDR (Amendment) Act of 2015 in the of MMDR Act of 1957 came into force and thereafter the respondent - State Government passed the impugned order after obtaining the opinion from the Assistant Geologist. It is therefore submitted that no illegality is committed by the respondent - State while passing the impugned order. Thus, learned counsel contended that subsisting mining lease of the respondent No.5 as held by the Government of India vide order dated 27.08.2010, was extended by way of impugned order dated 04.07.2015 passed by the respondent State under the provisions of the MMDR (Amendment) Act, no illegality is committed by the respondent State Government while passing the impugned order.
16. Learned counsel Mr. Joshi thereafter submitted that challenge to the construction of road by the petitioners is also not tenable. It is submitted that the petitioner No.1 - Gram Panchayat passed a resolution on 23.10.2015 that Page 12 of 20 HC-NIC Page 12 of 20 Created On Wed Aug 16 02:18:56 IST 2017 C/WPPIL/86/2017 CAV JUDGMENT the road is required to be constructed from the land in question. The said resolution was communicated by the petitioner No.1 - Gram Panchayat to the Collector. It was conveyed that the road be constructed for the use of vehicles of miners from the land in question so that the persons who are carrying out mining activity can use that road. Such road is bypassing the Gamtal of village Dedhrota. It is further submitted that the said road is being constructed for other 9 quarry lease and mine holders who are also required to use the road passing through Gamtal of village Dedhrota which ultimately endangers the life of the villagers as incidents of accident have taken place. Thus, when the respondent authorities, after following the procedure, have started construction of road, no illegality is committed by the respondent authorities. Learned counsel therefore submitted that the present petition being devoid of merit be dismissed.
17. We have considered the submissions advanced on behalf of the learned advocates appearing for the parties. We have also gone through the material produced on record. It transpires from the record that petitioner No.1 - Gram Panchayat had given the consent on 29.06.1982 for mining activities to be carried out by the respondent Page 13 of 20 HC-NIC Page 13 of 20 Created On Wed Aug 16 02:18:56 IST 2017 C/WPPIL/86/2017 CAV JUDGMENT No.5. Resolution was also passed by the Panchayat on 03.08.1982 regarding consent and no objection for grant of mining lease in favour of respondent No.5 for land bearing Survey No.335/1 of village Dedhrota. Thereafter, on the basis of the consent given by the petitioner No.1 - Gram Panchayat, the respondent - State Government passed an order on 10.09.1985, whereby mining lease for bauxite was granted in favour of respondent No.5 for a period of 20 years. Thereafter, the lease agreement was executed on 24.11.1986 in favour of respondent No.5. However, because of certain reasons, the possession of the leased area could not be handed over to the respondent No.5. It is also revealed from the record that after the period of lease was over in the year 2008, the respondent No.5 requested for renewal of the mining lease. When the said application was not decided, petition was preferred by the respondent No.5 before this Court. When the direction was given by this Court to decide the said application, the respondent State Government rejected the application for renewal of lease by an order dated 12.06.2009. The respondent No.5, therefore, preferred the revision application before the Ministry of Mines, Government of India. The Government of India, by an order dated 27.08.2010, set aside the order dated 12.06.2009 passed by the State Government and matter was Page 14 of 20 HC-NIC Page 14 of 20 Created On Wed Aug 16 02:18:56 IST 2017 C/WPPIL/86/2017 CAV JUDGMENT remanded back to the State Government for considering the matter afresh. Thereafter, the respondent No.5 has made representations to the State Government to decide the application as per the directions given by the Revisional Authority. Ultimately, the impugned order came to be passed on 04.07.2015 after MMDR (Amendment) Act of 2015 came into force.
18. From the record, it is further revealed that the petitioners have not challenged the order dated 10.09.1985 passed by the respondent State whereby the mining lease was granted in favour of respondent No.5 for a period of 20 years. It is also relevant to note that the petitioners have also not challenged the order dated 27.08.2010 passed by the Revisional Authority which is produced at page 52 of the compilation.
19. The impugned order dated 04.07.2015 has been passed by the respondent - State after considering the observations made by the Revisional Authority in the order dated 27.08.2010 and after considering the provisions of the MMDR Act as well as the MMDR (Amendment) Act. Thus, we are of the opinion that the impugned order dated 04.07.2015 is consequent to the order dated 27.08.2010 passed by the Revisional Authority and therefore in absence of challenge to the order dated 27.08.2010 passed by Page 15 of 20 HC-NIC Page 15 of 20 Created On Wed Aug 16 02:18:56 IST 2017 C/WPPIL/86/2017 CAV JUDGMENT the Revisional Authority, it would not be open for the petitioners to challenge the order dated 04.07.2015 passed by the respondent State.
20. While passing the order dated 04.07.2015, the respondent State has also considered the provisions contained in Section 8A of MMDR (Amendment) Act. Thus, when the lease granted in favour of the respondent No.5 by an order dated 10.09.1985 is extended, we are of the view that the decision rendered by the Hon'ble Supreme Court in the case of Jagpal Singh and other (supra) relied on by the petitioners would not render any assistance to them. Similarly, the resolution dated 01.04.2015 passed by the State Government has also no application in the facts of the present case.
21. At this stage it is also required to be noted that earlier the then Sarpanch of petitioner No.1
- Gram Panchayat as well as petitioner No.3 along with others had filed a petition being Writ Petition (PIL) No. 192 of 2015 before this Court challenging the order dated 04.07.2015 passed by the respondent State Government granting lease in favour of the present respondent No.5. The Division Bench of this Court vide order dated 21.09.2015 disposed of the said petition with the following observations:
Page 16 of 20HC-NIC Page 16 of 20 Created On Wed Aug 16 02:18:56 IST 2017 C/WPPIL/86/2017 CAV JUDGMENT "4. On the aspect of allotment of gauchar land for mining purpose without resumption from Gram Panchayat, we do not find that PIL jurisdiction would be available to the petitioner since the Gram Panchayat is if holding land, can ventilate the grievance by challenging the action of the Government of allotting gauchar land without resumption from Gram Panchayat, in accordance with law.
5. On the second aspect of adverse effect on the agricultural field and boundaries of riverbed, it appears to us that the petition is premature because in the impugned order dated 04.07.2015. Condition No. 6 reads as under:-
6. Mining Activity will be carried out only after obtaining Environment Clearance.
6. The aforesaid makes clear that until the environment clearance is granted by the concerned department under the Environment (Protection) Act, 1986, mining activity would not be undertaken. Before getting clearance or no objection certificate or permission, one needs to apply and the procedure provides for inviting of objections from the residents of the area etc. and thereafter, the objections are to be considered. Further, on the aspect of adverse effect on the environment, the matter is to be considered by the concerned authority.
Since the said issue is uptil not decided, the apprehension voiced by the petitioner on the ground of adverse effect on the environment and agricultural land and supporting wall of the riverbed could be said to be premature at this stage."
22. From the aforesaid order passed by the Division Bench of this Court, it transpires that the co-ordinate Bench of this Court has not entertained the similar contentions raised by the present petitioners and when the said order has attained finality, it would not be open for the Page 17 of 20 HC-NIC Page 17 of 20 Created On Wed Aug 16 02:18:56 IST 2017 C/WPPIL/86/2017 CAV JUDGMENT petitioners to challenge the order dated 04.07.2015 on the very same grounds. At this stage, it is clarified that when the order dated 21.09.2015 passed by this Court in the aforesaid writ petition, the Environmental Clearance Certificate was not obtained by the respondent No.5. However, now the Environmental Clearance Certificate has been issued by the Gujarat Pollution Control Board by an order dated 15.03.2017 and when the same is under challenge before the National Green Tribunal it is not open for the petitioners to challenge the issue with regard to adverse effect on the environment and agricultural lands and supporting wall of the riverbed if the Gauchar land is given to the respondent No.5 for mining activities, before this Court.
23. From the record, it is further revealed that the petitioner No.1 - Gram Panchayat passed a resolution on 23.10.2015 and requested the respondent authority to construct the road passing through survey Nos. 335/1 and 334 of village Dedhrota. The respondent authorities have, after following the procedure, decided to construct the road. Moreover, since the work of 50% of the road is already completed and the respondent authorities have spent approximately Rs.50 lacs as on today, it would not be appropriate for this Court to accept the request of the petitioners. The petitioners have no doubt Page 18 of 20 HC-NIC Page 18 of 20 Created On Wed Aug 16 02:18:56 IST 2017 C/WPPIL/86/2017 CAV JUDGMENT pointed out in the rejoinder that the resolution dated 23.10.2015 was discussed in the meeting of Gram Sabha dated 26.01.2017 and thereafter it was resolved to reconsider the said decision and ultimately on 17.02.2017 the resolution dated 23.10.2015 was cancelled by the petitioner No.1 Gram Panchayat. However, from the record, it is revealed that because of the change of body of Gram Panchayat after the election is held in 2017, such a decision is taken. However, from the affidavit filed on behalf of respondent No.3 it is clear that the Collector has formed a committee of five officers by an order dated 21.03.2017 and the said committee after visiting the site, submitted the report giving opinion to construct the road from survey No.335/1 and 334 of village Dedhrota. Thus, in the facts of the case, it appears that the respondent No.1 Panchayat is taking different stand from time to time because of their internal dispute. However, when the Collector and respondent authorities have, after following the procedure, decided to construct the road on the basis of resolution of the Panchayat and that 50% of the road is already constructed, we are not inclined to interfere with the decision of the respondent authorities.
24. Thus, in the facts and circumstances of the present case, when the petitioners are having alternative remedy of filing revision application before the Ministry of Mines, Government of India Page 19 of 20 HC-NIC Page 19 of 20 Created On Wed Aug 16 02:18:56 IST 2017 C/WPPIL/86/2017 CAV JUDGMENT and/or to file proceedings before National Green Tribunal, we are not inclined to entertain this petition. It is open for the petitioners to challenge the order dated 04.07.2015 before the appropriate authority or the Tribunal, as the case may be. It is made further clear that as and when such proceedings are filed before the appropriate authority and/or Tribunal, the same be decided on its own merits and without being influenced by any of the observations made by us in this order.
25. With the aforesaid, present petition is dismissed. Consequently, civil applications also stand disposed of.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Jani Page 20 of 20 HC-NIC Page 20 of 20 Created On Wed Aug 16 02:18:56 IST 2017