Gujarat High Court
Manharbhai Morarbhai Vaghela vs State Of Gujarat on 12 October, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9018 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
===================================================
1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair NO
copy of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
===================================================
MANHARBHAI MORARBHAI VAGHELA
Versus
STATE OF GUJARAT
===================================================
Appearance:
MS. KRUTI M SHAH(2428) for the Petitioner(s) No. 1
for the Respondent(s) No. 5,6
GANDHI LAW ASSOCIATES(12275) for the Respondent(s) No. 5,6
MR. NIRAJ SHARMA, AGP for the Respondent(s) No. 1,2,3,7
MR HS MUNSHAW(495) for the Respondent(s) No. 9
MR RITURAJ M MEENA(3224) for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 8
===================================================
Page 1 of 37
Downloaded on : Thu Oct 12 20:51:41 IST 2023
NEUTRAL CITATION
C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023
undefined
CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 12/10/2023
ORAL JUDGMENT
RULE returnable forthwith. Learned advocates waive service of Rule for and on behalf of the respective parties.
1. Brief facts leading to the filing of the present petition reads thus:
1.1. It is the case of the petitioner that the petitioner herein was granted quarry lease of ordinary sand situated opposite to Survey No. 44 at the bank of River Tapi admeasuring 01.81.00 Hector at Village: Kukarmunda, Tal.: Kukarmunda, Dist.:
Tapi by execution of lease deed dated 10.01.2021 after following due procedure of the Act and Rules.
1.2. The petitioner herein has applied for extension of the said lease under the amended provisions of the Gujarat Minor Mineral Concession Rules, 2017. The petitioner is in receipt of online all time royalty account, which is continued till date.Page 2 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023
NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined 1.3. It is the case of the petitioner that the respondent no.5 entered into one contract with Phoenix Project Pvt. Ltd. for repairs and maintenance of civil and technical works for the period of five years under Kukarmunda JPP Scheme (Taluka:
Kukarmunda, Dist.: Tapi) on 08.07.2021 for a period of 18 months starting from 04.06.2021. It is further the case of the petitioner that the contractor has illegally trespassed into the lease area of the petitioner and put the machinery, etc. and started digging the land and as the petitioner and other workers were prevented from carrying out lease operations, the petitioner preferred an application dated 21.10.2021 to the office of the Collector, Vyara stating that, from June, the mining activities were stopped because of monsoon and when the petitioner went for mining activities on 19.10.2021, it came to the knowledge of the petitioner that work is going on from the office of Water Supply Office, Uchchhal was carrying on the activity and when the petitioner contacted the said office, no satisfactory reply came to be given to the petitioner and in view thereof, the petitioner was constrained to approach the office of the Collector Page 3 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined by an application dated 21.10.2021, duly produced at Annexure- C. 1.4. The Sarpanch of Group Gram Fulwadi (Kukarmunda) also addressed a letter to the Executive Engineer to shift the construction work 200 meters from the area of lease, by stating that the lease is granted by the Collector, which gives employment to several labourers and results into royalty income of the State Government, by communication dated 01.11.2021.
Thereafter, petitioner again preferred a representation to the Executive Engineer on 19.11.2021 to stop the work of construction immediately, which was received on 20.11.2021. A detailed representation came to be made by the petitioner to all the concerned authorities on 23.11.2021 stating that the petitioner belongs to Scheduled Caste and is holding valid lease and though has made several requests to stop the construction work and though the Gram Panchayat has also made representation to shift the said work 200 meters from the lease, no concrete steps have been taken and the petitioner is not able to undertake the mining work and is prevented from entering Page 4 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined into the petitioner's own lease area and is deprived of constitutional rights. The said representation is duly produced at Annexure-F. 1.5. The respondent no.5 by communication dated 24.11.2021 addressed a communication to the petitioner and stated that Fulwadi Gram Panchayat has passed a resolution no.5 dated 18.06.2020 in its general meeting for construction of water purification plant, main head works, etc. over government land i.e. Survey No.9 Paiki, situated besides 66 KW electricity sub- station at Village: Kukarmunda and gave the copy of the said resolution and further submitted that it is coming out that the lease granted in favour of the petitioner is not in existence and the petitioner herein is causing hindrance in the government work. The aforesaid communication dated 24.11.2021 is duly attached with the map, the same is produced at Annexure-G. The petitioner replied the said communication by stating that as per the Gram Sabha Resolution relied upon by the respondent no.5, the reference is with regard to Survey No.9, however, the construction work undertaken by the respondent no.5 is in the Page 5 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined quarry lease of the petitioner, which is completely a different place and there is nothing on record to show that the government land bearing the aforesaid survey number is granted or the grant is approved either by the revenue or panchayat department of the State Government and it was also stated that the area in question is a tribal area and PESA Act applied to the tribal area, for which the resolution of Gram Sabha is compulsory and therefore, the resolution passed by Fulwadi Gram Panchayat is illegal and against the provisions of the Act and Rules and the copy of the map supplied to the petitioner does not bear seal and signature either of DILR, Mamlatdar, Deputy Collector, Talati-cum-Mantri or District Collector and false allegations are made that the petitioner is trying to cause hindrance in the government work. The said reply is duly produced at Annexure-H. 1.6. It is the case of the petitioner herein that the respondent nos. 4 to 6 have overreached the process of law with mala-fide intention to frustrate the fundamental, constitutional and legal rights of the petitioner, by entering into and placing on Page 6 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined record one agreement dated 23.06.2023, duly produced at Annexure-A-7, which is subsequent to the filing of the present petition.
1.7. In the aforesaid set of facts, the petitioner herein has prayed for the following reliefs:
"(a) This Hon'ble Court may be pleased to admit and allow this petition;
(b) This Hon'ble Court may be pleased to issue appropriate writ, order or direction to the respondent nos.5 and 6 to produce on record entire file of grant of tender and work order in favor of Phoenix Project Pvt. Ltd., Rajkot for implementation of Kukarmunda Juth Pani Purvatha Yogjna;
(c) This Hon'ble Court may be pleased to issue appropriate writ, order or direction to the respondents not to cause any obstruction or hindrance to the petitioner in carrying out mining activities in the area of lease situated opposite to Survey No.44 at the bank of River Tapi admeasuring 01.81.00 Hector at village:
Kukarmunda, Taluka: Kukarmunda, District Tapi;
(d) This Hon'ble Court may be pleased to issue appropriate writ, order or direction for quashing and setting aside the action of the respondent nos.5 and 6 of carrying out construction for implementation of Kukarmunda Juth Pani Purvatha Yogjna over the lease area of the petitioner and further be pleased to direct the said authority to shift the entire work 200 meters away from the lease area of the petitioner;
(e) Pending admission, final hearing and disposal of this petition, direct the respondent no.5 and 6 not to carry out any further construction work or any other work for the implementation of the Kukarmunda Juth Pani Purvatha Yogjna over the lease area of the petitioner;Page 7 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023
NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined
(f) Pending admission, final hearing and disposal of this petition, direct the respondent no.2 and 3 not to prevent/prohibit the petitioner in any manner whatsoever from carrying out mining activities over the lease area granted to the petitioner;
(dd) This Hon'ble Court may be pleased to issue appropriate writ, order or direction for quashing and setting aside the action of execution of draft agreement dated 23.06.2023 by respondent no.4 to 6.
(ff) Pending admission, final hearing and disposal of this petition,stay the further implementation, operation and execution of the agreement dated 23.06.2023 by respondent no.4 to 6 at Annexure-A-7 of additional affidavit filed by the respondent no.4 to 6.
(fff) Pending admission, final hearing and disposal of this petition, direct the respondent no. to 3 not to take any conceive action in respect of quarry lease of ordinary sand situated at the bank of River Tapi Opposite Survey Nos.53, 57, 58 situated at village: Kondherege, Taluka: Kukarmunda, District: Tapi admeasuring 10-00-00 Hector and further be pleased to restrain the respondents from further acting upon the said agreement.
(g) Grant such other and further relief as thought fit in the interest of justice."
2. Heard Ms. Kruti Shah, learned advocate appearing for the petitioner, Mr. Keyur Gandhi, learned advocate appearing for the respondent nos. 5 and 6, Mr. Niraj Sharma, learned Assistant Government Pleader appearing for the respondent nos. 1, 2, 3, 7
- State, Mr. H.S. Munshaw, learned advocate appearing for the respondent no.9 and Mr. Rituraj M. Meena, learned advocate appearing for the respondent no.4. Though, served, none appears Page 8 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined for and on behalf of the respondent no.8.
3.1. The main submission advanced by Ms. Kruti Shah, learned advocate appearing for the petitioner is that the petitioner is holding valid lease of ordinary sand, situated opposite to Survey No. 44 at the bank of River Tapi admeasuring 01.81.00 Hector at Village: Kukarmunda, Tal.: Kukarmunda, Dist.:
Tapi, by virtue of lease deed dated 10.01.2021. The petitioner herein has applied for extension of lease under the Gujarat Minor Mineral Concession Rules, 2017 (hereinafter referred to as 'the Rules, 2017' for the sake of brevity). The respondent no.5 herein has illegally trespassed the land belonging to the petitioner's lease. It was submitted that when the petitioner started mining activity, it was learn that the respondent no.4 had commenced the work in petitioner's lease. The aforesaid resulted into cause of action for the petitioner to approach the office of the Collector by representation dated 22.10.2021. It was submitted that the petitioner also made representations to the respondent no.4 not to enter into the petitioner's valid lease and not to put up the construction over the petitioner's lease area and further reliance Page 9 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined was placed on the fact that the petitioner belongs to Scheduled Tribe category and the petitioner is governed by PESA Act, wherein, the petitioner is governed by a resolution passed by the Gram Panchayat.
3.2. It was submitted by Ms. Shah, learned advocate that in the facts of the present case, no resolution is on record duly permitting the respondent no.4 to carry-out any activity by the said Gram Panchayat. It was submitted that the reliance placed on the resolution of the Gram Panchayat and village map, has reference the Survey No.9, however, the construction is being undertaken in the petitioner's lease area.
3.3. It was submitted that, in view of the aforesaid, petitioner is unable to carry-on the leasehold activity at the said place. It was submitted that the petitioner is seriously prejudiced because of the fact that for operation of the lease, several permissions are required and lease is not granted in the several cases, and in the facts of the present case, because of construction of public work, the question may crop up for cancellation of lease, because it has to be 200 meters away and Page 10 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined for that the petitioner though had made continuous requests, was not heard by the respondent authorities.
3.4. It was submitted that the respondent nos. 5 and 6 have taken the law in their hands and as acted as per their own will, as far as the demarcation of the land is concerned and hence the said action of construction of work, over the lease area of the petitioner is required to be shifted.
3.5. Reliance was placed on the affidavit in reply filed by the respondent - State that vide its order dated 03.10.2022 permission was granted for withdrawal of water, on fulfillment of conditions mentioned in the said order and the State Government has not granted any permission of allotment of land as well as any permission to construct intact well, approach bridge and it was further stated that there is a specific condition incorporated in the order dated 03.10.2022 in respect of taking all other approvals and it was informed to the respondent no.5 to take necessary permission from the concerned department and it was submitted that till 30.04.2023, no agreement was executed in the office of the respondent - State and Water Supply Board. Page 11 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023
NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined 3.6. Placing reliance on the aforesaid submissions, Ms. Shah, learned advocate submitted that the respondent no.4 is granted a limited permission by the State Government to the extent of drawing water from the well by order dated 03.10.2022 and in absence of any valid permission, the respondent be stopped from encroaching upon the petitioner's lease and carrying-on the construction and it was prayed that the prayers as prayed for be granted and the petition be allowed.
4. Heard Mr. Niraj Sharma, learned Assistant Government Pleader appearing for the respondent- State. 4.1. Mr. Niraj Sharma, learned Assistant Government Pleader relied on the affidavit in reply filed by the respondent no.3 and submitted that the respondent no.5 by communication dated 16.11.2021 informed the office of the present respondent no.3 about the work order issued to Phoenix Project Pvt. Ltd. and consequent installation of filtration plant at Tapi River and requested that the lease of the petitioner not be renewed, as the said lease had come to an end.
Page 12 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023
NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined 4.2. It was further submitted by Mr. Sharma, learned AGP that Section 12(1)(b) of the Gujarat Minor Mineral Concession Rules, 2017 came to be amended vide notifications dated 09.03.2018 and 30.03.2022, extending the period of quarry leases granted or renewed before the date of commencement of these Rules, till March 31, 2022 and March 31, 2025 respectively. 4.3. Mr. Sharma, learned AGP also relied on the further affidavit filed on behalf of the respondent no.3 and substantiated the submissions made in the earlier affidavit that in case where the quarry lease has been granted or renewed, the lease in favour of the petitioner continues as on date and is extended till 31.03.2021.
5. Heard Mr. Rituraj Meena, learned advocate appearing for the respondent No.4.
5.1. Mr. Rituraj Meena, learned advocate submitted that the respondent no.4 was established for rapid development and proper regulation of Water Supply and Sewerage services in the State of Gujarat. The respondent Board with a view to provide Page 13 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined fresh treated water to 51 villages of Kukarmunda Taluka of Tapi District, had initiated the water supply project for an amount of Rs.6262.29 Lakh in the month of August, 2020. It was submitted that the tender was issued for designing, constructing, testing and commissioning vide tender ID No. 431884. Pursuant to the said tender, M/s. Phoenix Projects Pvt. Ltd. was declared as successful bidder and letter of intent dated 04.06.2021 was issued in favour of M/s. Phoenix Projects Pvt. Ltd. The respondent no.4 herein sought permission of the irrigation department on 18.11.2021, which came to be granted by communication dated 15.12.2021 to initiate the project at GPS location no. 21 degree, 31-degree, 31.83 degree, 74 degree 7 degree and 17.78 degree. 5.2. It was submitted that when the officers of the Board as well as workers of the contractor visited at the sight in question, in absence of any board put up by the petitioner with respect to any quarry lease, the officers of the board initiated the process of digging of intake well. The petitioner approached the officers of the Board as well as contractor informing them about the grant of lease by the State, wherein, the petitioner supplied Page 14 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined the copy of the order dated 11.01.2017 issued by the Collector, Tapi (Page-17 of the petition), which indicated that the lease was granted to the petitioner for a period of three years. 5.3. It was submitted by Mr. Meena, learned advocate appearing for the respondent no.4 that there was no evidence that the leases were extended by the Collector indicate that the lease is continuing on the said date.
5.4. It was submitted that the respondent no.4 also sent a communication dated 24.11.2021 to the District Collector requesting him to hear the respondent - Board before extension of lease or granting any fresh lease on the site in question. 5.5. Placing reliance on the aforesaid submissions, Mr. Meena, learned advocate submitted that the petitioner as stated in the petition that the petitioner is in receipt of a valid quarry lease of the riverbank exactly opposite to Survey No. 44 and the said lease expired in the year 2020. It was submitted that the petitioner herein failed to produce any documents to indicate that the lease was extended or fresh lease has been issued at the Page 15 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined location, wherein, the respondent no.4 board is operating i.e. at the location as referred above. Reliance was also placed on the map duly produced alongwith the affidavit in reply. 6.1. Ms. Kruti M. Shah, learned advocate appearing for the petitioner submitted the document dated 15.12.2021 clearly state that the GPS location is of Block No.9 and the construction of water tank is not on Block No.9 but in the lease area of the petitioner and the same was brought to the notice of the respondent authorities by the petitioner by communication / representation dated 21.10.2021 and also requested the Executive Engineer to stop the construction by making representations dated 19.11.2021 and 23.11.2021. Ms. Shah, learned advocate submitted that, in spite of the aforesaid, the respondent nos. 4 to 6 had continued to put up construction over the lease are of the petitioner.
6.2. Ms. Shah, learned advocate reiterated that the execution of an agreement to lease to the petitioner is dated 10.01.2017 i.e. before coming into force of Gujarat Minor Concession Rules, 2017 in force on 24.05.2017 and that as per Page 16 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined the provision of Rule-12(1)(b) of the Rules, 2017, for minor minerals specified in Part-A of Schedule-3, the period of the quarry leases granted or renewed before the date of commencement of this Rules, shall be extended and deemed to have been extended upto a period ending of March 31, 2020 and the same has been extended from time to time by the government notification and the lease of the present petition is extended at present upto March 31, 2025, under the deeming provision of Rule-12 as per the government notifications dated 09.03.2018 and 30.03.2022.
6.3. It was also submitted by Ms. Shah, learned advocate that the respondent - State has also filed a specific report that the petitioner herein is in receipt of valid continuing lease. It was submitted that the petitioner is ready and willing to undertake the measurement by DILR of the area in question because at the time when the lease was granted to the petitioner, the area was surveyed and GPS coordinates were determined and the lease is situated at the same place as per the order and agreement of lease.
Page 17 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023
NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined 6.4. It was also submitted by Ms. Shah, learned advocate that the respondents are not in receipt of approval or consent given by any of the government authorities for construction or carrying out the said project, as prior consent or approvals of the different authorities, such as Mamlatdar, Deputy Collector, Collector, Revenue Authorities, DILR, etc. have not been obtained.
6.5. Placing reliance on the aforesaid submissions, it was submitted that the GPS coordinate of the area for the construction of over head water tank specified in the communications, upon checking by the petiioner is situated in Nasik, thus, there is a mistake commited at the time of putting up the construction of over head water tank in the lease area of the petitioner.
6.6. Placing reliance on the aforesaid submissions, it was submitted that the present petition may kindly be allowed.
7. Heard Mr. Keyur Gandhi, learned advocate appearing for the respondent nos. 5 and 6.
Page 18 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023
NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined 7.1. Mr. Keyur Gandhi, learned advocate has placed on record the Additional Affidavit which is duly produced at Page- 146 and reiterated the contentions raised in the earlier affidavit which is duly produced at 104 and 128. It was submitted that the lease agreement which is duly produced at Annexure-R-3, page-95-96 is produced selectively by the petitioner herein, in order to suppressed the material terms and conditions of the quarry lease agreement executed in favour of the petitioner. It was submitted by Mr. Gandhi, learned advocate that as per the said lease deed, the government's right in respect of construction of roads, waterways, etc. has been reserved and there can be no claim for compensation for any such rights being exercised. In view thereof, it was submitted that the petition be dismissed on account of such suppression.
7.2. It was submitted that due to specific restrictive covenant in the quarry lease agreement, no illegality can be said to have been committed by the respondent Board in constructing the approach bridge. Reliance is placed on the entire quarry lease agreement duly produced at Annexure-A-1 dated 10.01.2017 at Page 19 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined Page-153. It was submitted that the stand taken by the respondent no.3 that the quarry lease in favour of the petitioner is deemed to be extended is also denied, considering that Rule-12 of the Rules, 2017, which is pressed into service by the petitioner to extend extension of lease, it is expressly provided that pursuant to the Rule granting deemed extension, the Government is mandatorily required to issue a written intimation to all the leaseholders regarding the extension of lease period and within 30 days of such limitation, the leaseholder is further mandatorily required to complete all the formalities with respect to extension including payment of stamp duty for the extended period.
7.3. It was submitted that, neither the petitioner nor the respondent no.3 has placed on record any such intimation by the Government as well as payment of stamp duty by the petitioner, and therefore, clearly reliance placed on the deeming provision is without following the mandatory requirements of the same provision and thus, the lease is clearly not extended, and therefore, the very basis of the petitioner fails. Page 20 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023
NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined 7.4. It was reiterated that no such extension order extending quarry lease in favour of the petitioner beyond 09.01.2020 is placed on record. It was submitted that as per the Rules applicable to the quarry lease of the petitioner, no mining operations can be carried out within 50 meters of any public road, bridge, etc. It was submitted that as per the government circular dated 20.01.2014, no mining activity of ordinary sand can be carried-out within 200 meters of any bridge. In this context, it was submitted that, it is relevant to state that within 50 meters of the quarry lease area of the petitioner, there is a bridge. The said fact is also borne out from the report dated 11.05.2016 prepared by the Mamlatdar, Kukarmunda and the Panchkyas carried-out on 11.05.2016 in the present of the petitioner, pursuant to the application of the petitioner for grant of quarry lease.
7.5. It was submitted that, even in Environmental Clearance certificate granted to the petitioner on 26.10.2016 for the purpose of grant of quarry lease, it is expressly stipulated that no mining shall be carried-out by the petitioner within 200 Page 21 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined meters of any bridge. Reliance was placed on the said circular dated 20.01.2014 duly produced at Annexure-A-3, report prepared by the Mamlatdar dated 11.05.2016 alongwith the Panchkyas at Annexure-A-4 and Environment Clearance certificate granted to the petitioner dated 26.10.2016, at Annexure-A-5. 7.6. It was submitted that the Collector passed the grant order of the quarry lease in favour of the petitioner on 24.11.2016. It was submitted that, it is a condition prescribed in the said grant order that the petitioner has to clearly and conspicuously demarcate quarry lease area, using concrete pillars of specified dimension and colour them in yellow as well as providing pillar numbers in black. In the facts of the present case, no such demarcation is carried-out at the site of the quarry lease area of the petitioner. The said grant order which was relied upon dated 24.11.2016, is duly produced at Annexure-A-6. It was submitted that the State Government has also entered into an agreement with the State Government on 23.06.2023 for the purpose of constructing the intake well as well as approach bridge upon the quarry lease area granted to the petitioner, the Page 22 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined same is duly produced at Annexure-A-7. It was further submitted that, in regard to the extension of the quarry lease of the petitioner, the respondent has sought a response from the respondent no.3 regarding the application, if any, preferred by the petiione for extendiding as well as any order passed therein, however, no response has been forthcoming from the respondent no.3-Geologist in the said regard, the said communication dated 17.06.2023 is relied upon by Mr. Gandhi, learned advocate, which is duly produced at Annexure-A-8.
7.7. Placing reliance on the aforesaid contentions, it was reiterated that in absence of any valid lease permission in favour of the petitioner, the lease having expired as back as on 09.01.2020 and considering the conditions laid down in the lease order, no right of the petitioner to carry-out the mining activities is affected by putting up the construction by the respondent Board. It was submitted that, on account of petitioner's lease having expired, the respondent Board has not committed any illegality in undertaking construction activities. In view thereof, there is no cause of action to file the present petition. It was Page 23 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined reiterated that the petition is misconceived and suppressing the material facts and documents, and therefore, the same is required to be dismissed the said ground alone.
ANALYSIS:
8. Heard the learned advocates appearing for the respective parties.
8.1. The petitioner herein was granted quarry lease for ordinary sand situated opposite to Survey No. 44 at the bank of River Tapi admeasuring 01.81.00 Hector at Village: Kukarmunda, Tal.: Kukarmunda, Dist.: Tapi by execution of lease deed dated
10.01.2021, after following due procedure of the prescribed Act and Rules. It is the case of the petitioner as well as respondent no.3 authority that the case of the petitioner is governed by the Gujarat Minor Mineral Concession Rules, 2017. By virtue of the said Rules, i.e. Rule-12(1)(b), which came to be amended vide notifications dated 09.03.2018 and 30.03.2022 extending the period of quarry leases granted or renewed before the date of commencement of these Rules, till March 31, 2022 and March 31, 2025 respectively. The petitioner's lease is deemed to be Page 24 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined extended in view of the aforesaid notifications. The aforesaid contention has been vehemently opposed by Mr. Keyur Gandhi, learned advocate appearing for the respondent Nos. 4 to 6. Reliance was placed on Rule-12(b) and submitted that the petitioner was granted quarry lease for mining of ordinary sand on 10.01.2017 for a period of three years.
8.2. It is the contention of the petitioner herein that the petitioner herein is in possession of a valid quarry lease and as such mining lease granted in favour of the petitioner expired on 09.01.2020, continuous by deemed extension. Placing reliance on Rule-12 of the Rules, 2017, it was submitted that while the petitioner herein has relied on Rule-12 of the Rules, 2017, the same mandatorily requires issuance of the written intimation to all the leaseholders regarding extension of lease period. The said submission is controverted by Mr. Gandhi, learned advocate appearing for the respondent nos. 4 to 6 and submitted that the said submissions are contrary to the provision of Rules, 2017. Placing reliance on the same, it was submitted that taking the case of the petitioner as it is, even if the petitioner is in Page 25 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined possession of deemed lease, no written intimation regarding the same has been placed on record either by the petitioner or by the respondent no.3 authority, wherein, on completion of formalities, stamp duty is also required to be paid by the petitioner and in absence of the aforesaid, the lease is not extended and the present petition is required to be dismissed on the aforesaid ground alone. The respondent - State Government has supported the submissions made by the petitioner herein, wherein, it has been stated that the petitioner is in receipt of valid deemed lease by virtue of Rules, 2017 and that it is reiterated in the affidavit in reply duly produced on record that the respondent no.5 by communication dated 16.11.2021 informing the office of the respondent no.3 about the work order issued to Phoenix Project Pvt. Ltd. and consequent installation of filtration plant at Tapi River and requested that the lease of the petitioner may not be renewed, as the said lease has come to an end.
8.3. Considering the aforesaid, it is apposite to refer Rule- 12 of the Gujarat Minor Mineral Concession Rules, 2017, which Page 26 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined reads thus:
"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, 2025 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, 2020 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.
(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;Page 27 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023
NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined
(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 purpose of the proviso, the term "captive purpose" shall mean the use of more than fifty percent of the entire quantity of mineral extracted from the quarry lease in a manufacturing unit owed by the lessee."
8.4. Considering the aforesaid Rule-12 of the Rules, 2017, it appears that the petitioner was granted quarry lease in the year 2017 for a period of three years. Considering Rule-12(2) of the Rules, 2017 neither the petitioner nor the respondent no.3 Page 28 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined has placed on record a written intimation with regard to extension of the lease period, pursuant to the said Rules, 2017, when no such intimation is placed on record, the question of further compliance as stipulated under Rule-12(2) of the Rules, that the quarry leaseholder shall within a period of 30 days of receipt of such intimation completing all the formalities with respect to such extension including the payment of stamp duty for the extended period of quarry lease does not arise. 8.5. At this stage, it is also apposite to refer Rule-18 (6) and Rule-18 (10) of the Gujarat Minor Mineral Concession Rules, 2017, which reads thus:
"18. Duties and obligations of the lessee.-
The lessee shall, subject to the provisions of rule 19, have the following duties and obligations:
(6) No mining operations in certain areas.- Except with the written permission of the concern authority the lessee shall not carry on, or allow to be carried on, any mining operations at any point within a distance of:
(a) fifty metres from any road (excluding a village road or other district road), notified reservoirs, canal, national highway, state highway, boundary of any railway line, public works, cities, towns, villages and other approved continuous habitations, if no blasting is involved; or
(b) two hundred metres from any road, notified reservoirs, canal, national highway, state highway, boundary of any railway line, Page 29 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined public works, cities, towns, villages and other approved continuous habitations, if blasting is involved, The aforesaid distance shall be measured (a) in the case of a railway line, horizontally from the outer edge of the cutting, (b) in the case of a canal or reservoir, horizontally from the outer toe of the bank or the outer edge of the cutting, as the case may be, and (c) in case of a building or any other structure for human habitation, horizontally from the plinth thereof. The lessee shall not carry on, or allow to be carried on, any mining operations under or beneath any ropeway or ropeway trestle or station, except under and in accordance with the written permission of the authority owning the ropeway. The written permission of the relevant authority may be conditional upon and subject to terms and conditions, in which case the lessee shall comply with all such terms and conditions.
Provided that in case any specific guidelines, directions, circulars, etc., are issued with respect to any mineral, mineral category, area, operation or otherwise for the purpose of sustainable mining or environment or pollution related matters, and the same envisage stricter norms, guidelines, directions, etc., the same will also be applicable with respect to mining operations undertaken within the aforesaid limits.
(10) To maintain and keep boundary marks.- The lessee shall at his own expense, erect, maintain and keep in good repair all boundary marks and pillars and sign boards according to the Act and the rules with respect to the manner of construction and upkeep of boundary pillars including the following:
(a) the lessee shall get the measurement of the lease area by District Inspector of Land Records;
(b) the lessee shall submit the copy of measurement sheet and shall establish the exact limitation marks as per the measurement sheet on the lease area and take care of the limitation marks/ stones;
(c) the lessee should maintain a (sign) board with the schematic map, showing the measurements of the lease area. The expenses of this board preparation, arrangement and its maintenance in good condition shall be the responsibility of the lessee;
(d) the lessee shall maintain the (sign) board at a proper place, in proper manner, easily visible to the visitors, during the whole lease period and should, for facilitating easy visibility of the notice Page 30 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined board, remove the hindrances around it, like bushes, tree branches, shelters etc.;
(e) the lessee must prepare, establish and maintain in good condition, the (sign) board and its facing, to indicate the landmarks of the lease area. The lessee shall arrange the landmark concrete pillars of 3' * 3' * 3' measurement for indicating the exact limitations of the lease area;
(f) the lessee shall see that these concrete pillars are maintained in good condition during the entire quarry lease period. These concrete pillars should be painted with yellow colour for good visibility. The number of the pillar and the marks of latitude and longitude measurements of the pillar should be written in black colour;
(g) except in the case of ordinary sand mineral, in case of all other minerals, the boundary of the lease area should be fenced properly; and
(h) the District Geologist/ the District Assistant Geologist should provide the coordinates of the lease area and these coordinates should be clearly mentioned on the map of the quarry lease and the map of the quarry lease shall be kept by the lessee within the lease area at all times."
8.6. Considering the aforesaid provision of Rules, 2017, within the 50 meters quarry lease of the petitioner, there is a bridge. It appears that no mining operation can be carried-out within 50 meters of any public road, bridge, etc. Further, as per the government circular dated 20.01.2014, no mining activity of ordinary sand can be carried-out within 200 meters of any bridge. The said is reiterated by the respondent nos. 4 to 6 placing reliance on the report dated 11.05.2016 prepared by the Page 31 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined Mamlatdar, Kukarmunda and the Panch-kyas carried-out on 11.05.2016 in presence of the petitioner, pursuant to the application of the petitioner for grant of quarry lease. The respondent nos. 4 to 6 have placed on record the lease granted in favour of the petitioner at page-153. This Court has also considered the said lease, which is granted in favour the petitioner. The said lease is granted on certain conditions. As per the said lease, the government's right in respect to the construction, of roads, water-well, etc. has been reserved and that no compensation can be claimed for such rights. It appears that the respondent nos. 4 to 6 are granted permission for construction of water-tank.
8.7. It is the case of the petitioner that the petitioner is in receipt of a valid lease under the Rules, 2017. The aforesaid contention raised by Ms. Shah, learned advocate appearing for the petitioner has been supported by Mr. Sharma, learned AGP appearing for the respondent- State and it is reiterated by the respondent- State authorities that the petitioner herein is in receipt of a valid lease, pursuant to the Rules, 2017 specified in Part-A-1 of Schedule-3. Considering Rule-12(1) (b) and Rule-18 of Page 32 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined the Rules, 2017, as referred above, the aforesaid stipulates that if there is a valid lease, which is extended upto 31.03.2025 under the deeming provision of Rule-12 of the Rules, 2017 as per the government notifications dated 09.03.2018 and 30.03.2022, the Rule-18 stipulates an order of extension. Neither the petitioner nor the government has placed on record the order extending the lease in question. On the other hand, the respondent nos. 4 and 5 have placed reliance on the draft agreement entered into between the respondent and the State Government on 23.06.2023, pending the present petition and has been subsequently challenged by the petitioner herein. The respondent no.8 has filed an affidavit, pursuant to the order dated 14.03.2023 in the present petition, wherein, the respondent no.8 was directed to place on record whether any final order is passed by the State Government in favour of the respondent nos. 4 to 6. In compliance of the said order, the respondent no.8 has filed the affidavit duly produced at Page-114, wherein, in Para-13 (Pg-
188), it is stated that neither the Narmada Water Resources, Water Supply and Kalpsar Department nor the Executive Engineer, Ukai Division-1, Ukai, has allotted any land to the Page 33 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined respondent no.5 for construction of intake well pump as well as to construct 200 meter long approach bridge to withdraw water through pipeline and to take water to headworks of the respondent no.5. It is further stated by the respondent no.8 that the State Government vide order dated 03.10.2022 granted in principle permission to withdraw the water and reserve water upto 6.95 MLD from the Ukai water resorvior on fulfillment of certain conditions mentioned in the said order, duly produced at Annexure-R-3, Page.125. The respondent no.8 has filed further affidavit placing on record a Draft Agreement (new for approval) entered into between the respondent nos. 4 to 6 and the respondent no.8 for withdrawal of water and withdrawal of 6.96 MLD from Ukai Reservoir for drinking purpose, on fulfillment of certain conditions mentioned in the order dated 03.10.2022 and thereafter entered into an agreement dated 23.06.2023 on terms and conditions mentioned therein in the larger interest of the society, as the said project inspected by the respondent no.5 is for providing drinking water to 51 villages of Kukarmunda Taluka.
9. It appears that while there is a draft agreement Page 34 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined between the parties, the permission appears to have been granted in favour of the respondent nos. 4 and 5 to the extent of drawing of water. The respondent nos.4 to 6 are granted permission vide order dated 03.10.2022 by the State Government with respect to withdraw the water and reserve water upto 6.95 MLD from the Ukai water resorvior on fulfillment of certain conditions mentioned in the said order, thereafter, a draft agreement is entered into between the respondent nos. 4 to 6 and respondent no.8 on certain conditions that are required to be fulfilled by the respondent nos.4 to 6. Considering the fact that, it is the case of the petitioner that the respondent nos. 4 to 6 have undertaken construction, in absence of requisite permission and considering the fact that no permission comes on record with respect to construction of intake well pump to withdraw water through pipeline or to take water to headworks to the respondent no.5, which is also undisputed, considering the affidavit in reply filed by the respondent no.8. On perusal of the said permission duly produced at Page-260, the supply of water from water from intake well of Ukai Reservoir of Tapi River flowing in front of Survey No. 44 near Fulvadi and the petitioner is claiming Page 35 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023 NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined leasehold rights in the land bearing Survey No. 44 at the bank of River-Tapi admeasuring 01.81.00 Hector at Village: Kukarmunda, Tal.: Kukarmanda, Dist.: Tapi, pursuant to the lease deed dated 10.01.2021. Considering the aforesaid, it appears that if the petitioner is undertaking leasehold activity with respect to ordinary sand, the case of the petitioner is required to be considered under Clause-18(10)(g) of the Rules, 2017, wherein, except in case of ordinary sand mineral, in case of all other minerals, the boundary of lease area is required to be fenced properly. In absence of fencing by the petitioner, the encroachment, if any, by the respondent nos. 4 to 6, will have to be determined by the competent authority and appropriate steps will have to be undertaken in accordance with law against the respondent nos. 4 to 6 for the encroachment, if any, in the petitioner's leasehold area.
10. At this stage, it is apposite to refer to the ration as laid down by the Hon'ble Apex Court in the case of Subhas Jain v/s. Rajeshwari Shivam and Others reported in 2021 SCC Online SC 562, relevant Para-24 and 26 reads thus:
Page 36 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023
NEUTRAL CITATION C/SCA/9018/2022 JUDGMENT DATED: 12/10/2023 undefined "24. In our considered view, the High Court has committed a serious error in directing removal of a wall with the assistance of M/s. Shetgiri and Associates, when there were conflicting reports including an earlier report of the Technical Advisory Committee on the basis of the opinions of other Architects, declaring the building to be of the C-1 category.
26. It is well settled that the High Court exercising its extraordinary writ jurisdiction under Article 226 of the Constitution of India, does not adjudicate hotly disputed questions of facts. It is not for the High Court to make a comparative assessment of conflicting technical reports and decide which one is acceptable."
11. Considering the aforesaid ratio as referred above and the facts of the present case, the present petition gives rise to the disputed question of facts with respect to the leasehold rights of the petitioner as well as encroachment, if any, by the respondent nos. 4 to 6 in the petitioner's leasehold area. In view thereof, the petitioner may approach the competent authority and to raise all the grievances as raised in the present petition and the same be considered by the competent authority, preferably within a period of eight weeks from the receipt of order, in accordance with law.
12. For the foregoing reasons, the petition stands disposed of with the aforesaid directions.
Direct service is permitted.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 37 of 37 Downloaded on : Thu Oct 12 20:51:41 IST 2023