Gujarat High Court
Shree Amroli Vibhag Reti Kadhnari ... vs State Of Gujarat on 12 March, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/885/2023 ORDER DATED: 12/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 885 of 2023
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SHREE AMROLI VIBHAG RETI KADHNARI MAZOOR KAMDAR SAHAKARI
MANDALI LIMITED
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MS. KRUTI M SHAH(2428) for the Petitioner(s) No. 1
MR JAYNEEL PARIKH, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 12/03/2024
ORAL ORDER
1. Heard Ms. Kruti Shah, the learned advocate appearing for the writ-applicant and Mr. Jayneel Parikh, the learned AGP appearing for the respondent No.1.
2. Leave to amend is granted. To be carried out forthwith.
3. The writ-applicant herein is a registered co-operative society formed mainly of members belonging to Odd community and the traditional and ancestral business of the said community is sand mining and the only source of Page 1 of 17 Downloaded on : Fri Mar 22 21:16:47 IST 2024 NEUTRAL CITATION C/SCA/885/2023 ORDER DATED: 12/03/2024 undefined livelihood of the members of the said community depend upon sand mining by traditional means. The society is also formed for the purpose of sand mining by taking out sand without using any machinery and by traditional means, i.e. to take out the sand manually.
3.1 The writ-applicant applied seeking for quarry permit on different dates for manually excavating the sand by traditional means. The said applications came to be forwarded by the respondent No.4 to the respondent No.2 by communications dated 12.5.2022, 4.7.2022, 11.5.2022 produced at Annexure-D (Colly.) seeking no objection from the Commissioner of Fisheries in light of the Circular dated 25.6.2020 stating that the area demanded comes within 10 kms. from Matsya Utran Kendra and therefore, NOC from the office of the Commissioner of Fisheries is necessary. The said applications are pending before the Commissioner of Fisheries. The same is undecided.
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NEUTRAL CITATION C/SCA/885/2023 ORDER DATED: 12/03/2024 undefined 3.2 The respondent No.3 has communicated on 6.7.2022 to the Commissioner of Fisheries i.e. respondent No.2 to grant NOC by considering the fact that the permission granted to M.M. Infra Buildcon on 4.2.2022 covers the entire CRZ area starting from Singanpor Weir Causeway to Dumas / Hazira and the area demanded by the writ-applicant society stands covered under the said area and further recommended the case of the writ-applicant stating that the State Government would have the income of royalty and many persons would get employment who are engaged in the said business. 3.3 In light of the aforesaid communication the present writ- application came to be filed seeking direction qua respondents No.3 and 4 to grant quarry permit pursuant to the applications made by the writ-applicant society without insisting for taking NOC from the office of the Commissioner of Fisheries i.e. respondent No.2.
3.4 Pending the present writ-application the respondent No.2 Page 3 of 17 Downloaded on : Fri Mar 22 21:16:47 IST 2024 NEUTRAL CITATION C/SCA/885/2023 ORDER DATED: 12/03/2024 undefined passed further order dated 4.5.2023 which is subject matter of challenge by way of an amendment dated 21.8.2023 which is duly produced at Annexure-R1. By the impugned order the respondent No.2 placing reliance on the Notification issued by the Central Government held that, (true translation) :-
"in connection with aforesaid facts, as aforesaid demand is for quarry permit for ordinary sand excavation under Rule-22 of the Gujarat Minor Mineral Concession Rules, 2017 and the same are not in in consonance with the traditional coastal communities mentioned in the Notification, the same cannot be acceded to. Therefore, for aforesaid reasons, your online Quary Permit Application No.13042, Dt.17/04/2022 seeking ordinary sand excavation permit in the Tapi river bed is hereby dismissed."
By impugned order dated 4.5.2023 the respondent No.2 dismissed the writ-applicant's online application seeking quarry permit dated 17.4.2022.
4. Ms. Kruti Shah, the learned advocate appearing for the writ-applicant submitted that the writ-applicant herein is a cooperative society and falls within the ambit of Rule 22 of Page 4 of 17 Downloaded on : Fri Mar 22 21:16:47 IST 2024 NEUTRAL CITATION C/SCA/885/2023 ORDER DATED: 12/03/2024 undefined the Gujarat Minor Minerals Concession Rules, 2017. Ms. Shah, the learned advocate submitted that the order impugned passed by the respondent No.2 is an order which is passed without following the principles of natural justice and the same is required to be quashed and set aside.
4.1 It was submitted that the respondent No.2 has declined the writ-applicant's application for seeking quarry permit on the ground that the writ-applicant do not fall within ambit of CRZ notification and that the writ-applicant does not fall in Clause (8) or (4) of the traditional coastal community. 4.2 It was submitted that, had the writ-applicant been called upon, the writ-applicant could have placed their case before the respondent No.2 and appropriate orders could have been passed. The writ-applicant was never granted opportunity of hearing while passing the order which is adverse to the writ- applicant. The aforesaid is violative of cardinal principles of natural justice.
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NEUTRAL CITATION C/SCA/885/2023 ORDER DATED: 12/03/2024 undefined 4.3 It was submitted that the Government Circular dated 26.5.2020 empowers the respondent No.2 i.e. Commissioner of Fisheries to grant NOC and only then further steps can be taken. It was submitted that since the quarry permit itself has been declined to the writ-applicant, the application would be rendered infructious in light of the order passed by the respondent No.3 - Collector.
4.4 It was submitted that the Collector by communication dated 6.7.2022 opined that the writ-applicant is entitled to the benefit of the said communication.
4.5 In light of the aforesaid, it was submitted that two contradictory orders are passed by the respondent No.2 i.e. dated 6.7.2022 duly produced at pages-85-86 and dated 4.5.2023 duly produced at pages-99-100 respectively. It was submitted that the impugned order dated 4.5.2023 passed by the respondent No.3 is required to be interfered with and that the respondent No.2 Collector be directed to grant opportunity of hearing to the writ-applicant, impugned communication Page 6 of 17 Downloaded on : Fri Mar 22 21:16:47 IST 2024 NEUTRAL CITATION C/SCA/885/2023 ORDER DATED: 12/03/2024 undefined having been passed unilaterally and in violation of the principles of natural justice.
5. Mr. Jayneel Parikh, the learned AGP appearing for the respondent - State relied on the affidavit-in-reply filed on behalf of the respondent No.3. Placing reliance on the same it was submitted that the application seeking quarry permit came to be declined by the respondent No.3 - Collector mainly on the ground that the application of the writ-applicant society are not in consonance with the draft notification 1.11.2021 as the writ-applicant is not falling within the traditional coastal community and, therefore, online application by the writ- applicant stands rightly rejected.
5.1 It was submitted that the writ-applicant has made total 14 applications for grant of quarry permit at different villages of talukas of Surat district on different dates. In light of the aforesaid, the respondent No.3 on verification found that the area sought by the writ-applicant society falls under coastal Page 7 of 17 Downloaded on : Fri Mar 22 21:16:47 IST 2024 NEUTRAL CITATION C/SCA/885/2023 ORDER DATED: 12/03/2024 undefined regulations zone, of Surat district therefore in view of the circular dated 26.5.2020 issued by the State Government through Agriculture, Farmer Welfare and Co-operation Department resolved that for any excavation, dredging or any ancillary activities relating thereto within the area of 10 km. from the notified fishing centers can only be permitted by the competent authority with NOC granted by the office of the Commissioner of Fisheries for excavation, dredging and all other consequential activities.
5.2 Mr. Parikh, the learned AGP submitted that in view of the aforesaid the respondent No.3 has communicated to the respondent No.2 for issuance of NOC. Reliance was placed on Clause (10.4) for removal of sand bars in CRZ. It was reiterated that since the writ-applicant do not fall within the said category, no interference is called for in the impugned order passed by the respondent authority.
6. Having heard the learned advocates appearing for the respective parties the following emerge :- Page 8 of 17 Downloaded on : Fri Mar 22 21:16:47 IST 2024
NEUTRAL CITATION C/SCA/885/2023 ORDER DATED: 12/03/2024 undefined 6.1 The writ-applicant herein is a registered co-operative society formed mainly by the members belonging to Odd community and the traditional and ancestral business of the said community is sand mining and the only source of livelihood of the members of the said community depend upon sand mining by traditional means. The society is also formed for the purpose of sand mining by taking out sand without using any machinery and by traditional means, i.e. to take out the sand manually.
6.2 The writ-applicant preferred 14 applications at villages of different talukas of District Surat for different plots seeking quarry permit in April, 2022. The respondent No.4 forwarded all the applications to the respondent No.2 for grant of NOC, the same falling within 10 kms. from Matsya Utran Kendra.
The said applications are pending before the respondent No.2. 6.3 The respondent No.3 on 6.7.2022 communicated to the office of the Commissioner of Fisheries to grant NOC by considering the fact that the permission granted to M. M. Infra Page 9 of 17 Downloaded on : Fri Mar 22 21:16:47 IST 2024 NEUTRAL CITATION C/SCA/885/2023 ORDER DATED: 12/03/2024 undefined Buildcom on 4.2.2022 covers the entire CRZ area starting from Singanpor weir causeway to Dummas/Hazira and the area demanded by the writ-applicant society is also covered under the same area and further recommended the case of the writ- applicant stating that the State Government would have the income of royalty and many persons would get the employment who are engaged in the said business. 6.4 It is apposite to refer to the said letter dated 6.7.2022 duly produced at Annexure-F which reads thus :-
"Date : 06/07/2022.
To, Commissioner, Commissionerate of Fisheries, Dr.Jivraj Maheta Bhavan, Block No.110, Third Floor, Gandhinagar, Gujarat - 382010.
Sub: Regarding No-objection Certificate.
Ref: Representation dated 04/07/2022 of various Co-operative Societies of Coastal areas of Dist.Surat.Page 10 of 17 Downloaded on : Fri Mar 22 21:16:47 IST 2024
NEUTRAL CITATION C/SCA/885/2023 ORDER DATED: 12/03/2024 undefined Respected Sir, With reference to the subject noted above, I am to inform that Rundh Coastal Division Labours and Workers' Co- operative Society Ltd., Dummas Coastal Division Labours and Workers' Co-operative Society Ltd., Mittal Pal Coastal sand excavation Co-operative Society Ltd., Magadalla Coastal Division Labours and Workers' Co-operative Society Ltd. and Kwas Coastal Division Labours and Workers' Co-operative Society Ltd. had made application in the prescribed format, seeking Quary permit for ordinary sand excavation from River Tapi, through manual labour. In response thereto, pursuant to present guidelines, as "No Objection Certificate" of Fisheries Department was mandatory, aforesaid application was forwarded to your office with the requisite check-list.
They have requested through representation of reference-(1). In the No Objection Certificate issued to M.M.Infra Buildcon on 04/02/2022, entire CRZ area from Singanpor Weir Causeway to Dummas / Hajira are included. This area includes the area of demand in their applications. Therefore, it is requested to consider the 'No Objection Certificate' concerned for the entire area and to allow their permit applications, because the 'No Objection Certificate' has been issued for entire area.
In response to aforesaid representation, upon examining the records, in connection with the application of M.M. Infra Buildcon, in pursuance of the No Objection Certificate issued Page 11 of 17 Downloaded on : Fri Mar 22 21:16:47 IST 2024 NEUTRAL CITATION C/SCA/885/2023 ORDER DATED: 12/03/2024 undefined by your office, total two permits for 100000 M.Tone have been approved. In response to the applications received earlier from aforesaid demanded areas under permit, the Geologist has made requisite overlapping scrutiny, granted permit for the surplus area. Therefore, the aforesaid representation of the Co-operative Societies appears valid.
Also, upon granting of the permit to the co-operative societies, royalty income may be generated for the Government and simultaneously many people will get employment, especially self esteemed people will be promoted. Therefore, it is recommended to consider the representation of the Co-operative Societies and to do the needful in the matter.
Sd/-
Collector, Surat."
6.5 By way of present writ-application the writ-applicant herein approached this Court seeking direction that the respondents No.3 and 4 be directed to grant quarry permit without insistence of NOC from the Commissioner of Fisheries i.e. the respondent No.2 herein. The respondent No.3 by order dated 4.5.2023 pending the present writ-application suo motu passed the impugned order cancelling the writ-applicant's online application seeking quarry permit dated 17.4.2022 being Page 12 of 17 Downloaded on : Fri Mar 22 21:16:47 IST 2024 NEUTRAL CITATION C/SCA/885/2023 ORDER DATED: 12/03/2024 undefined Application No.222 of 2022 placing reliance on the Clause 8(10.4) of the Notification issued by the Ministry of Environment and Forests, New Delhi Memorandum No.11- 83/2005-IA-III(Vol.III) dated 8.11.2011. It is apposite to reproduce same :-
"Clause 8(10.4 : Removal of sand bars in CRZ areas : The sand bars in the intertidal areas shall be removed by traditional coastal communities only by manual method (i.e. sand collection in non-mechanized dinghies or small boats using baskets/buckets by human beings) in various coastal states. The State Government may permit such removal of sand in specified time period in a particular area along with specific quantity subject to conditions such as registration of local community persons permitted to remove the sand manually and shall be renewed on yearly basis."
6.6 In the facts of the present case, it is apposite to refer to Rule 20(b) of the Gujarat Minor Minerals Concession Rules, 2017, which reads thus :-
"Rule 20 : Grant of quarry permit;
(b) labour co-operative societies registered under the Gujarat Co-Operative Societies Act, 1961 as on the date of Page 13 of 17 Downloaded on : Fri Mar 22 21:16:47 IST 2024 NEUTRAL CITATION C/SCA/885/2023 ORDER DATED: 12/03/2024 undefined commencement of these rules and traditionally undertaking manual mining.
6.7 On perusal of the aforesaid Notification, removal of sand bars from the intertidal areas shall be removed by traditional coastal communities only by manual method. The traditional coastal communities is not defined in the said Notification.
7. Having considered Rule 20 of the Gujarat Minor Minerals Concession Rules, 2017 the present writ-applicant appears to be included in the definition of Rule 20(b). Having considered the same, it is apposite to refer to the position of law in the case of Whirlpool Corporation Versus Registrar Of Trade Marks, Mumbai, reported in (1998) 8 SCC 1, wherein paragraph-15 reads thus :-
"15. Under Art. 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a Writ Petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But Page 14 of 17 Downloaded on : Fri Mar 22 21:16:47 IST 2024 NEUTRAL CITATION C/SCA/885/2023 ORDER DATED: 12/03/2024 undefined the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point put to cut down this circle of forensic Whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."
8. In light of the aforesaid, the order impugned passed by the respondent No.3 adversely affects the rights of the writ- applicant wherein the writ-applicant's application seeking quarry permit stands cancelled dated 17.4.2022 by the impugned order dated 4.5.2023. No opportunity of hearing was granted to the writ-applicant. The term "traditional coastal communities" is also in the Notification issued by the Ministry of Environment and Forests, New Delhi Memorandum No.11-83/2005-IA-III(Vol.III) dated 8.11.2011 not defined. In light of the aforesaid, before passing any adverse order, it was incumbent for the respondent No.3 to call upon the writ- Page 15 of 17 Downloaded on : Fri Mar 22 21:16:47 IST 2024
NEUTRAL CITATION C/SCA/885/2023 ORDER DATED: 12/03/2024 undefined applicant for hearing. The respondent No.3 has also issued an communication/order dated 6.7.2022 which is also after issuance of CRZ Notification dated 24.11.2022 which is duly produced at page-233. When the communication dated 6.7.2022 was issued, the said notification dated 24.11.2022 was in force. In light of the aforesaid, the impugned order dated 4.5.2023 is not sustainable, the same having been passed without following the cardinal principles of natural justice and as to how the writ-applicant does not fall within the ambit of "traditional coastal communities" though the writ-applicant falls within Rule 20(b) of the Gujarat Minor Minerals Concession Rules, 2017. The learned AGP Mr. Jayneel Parikh is not in a position to controvert the aforesaid.
9. In view of aforesaid, this Court is inclined to exercise extraordinary jurisdiction under Article 226 of the Constitution of India and allow the present writ-application quashing and setting aside the impugned order dated 4.5.2023. Liberty is reserved in favour of the respondent authority to issue fresh Page 16 of 17 Downloaded on : Fri Mar 22 21:16:47 IST 2024 NEUTRAL CITATION C/SCA/885/2023 ORDER DATED: 12/03/2024 undefined notice and call upon the writ-applicant for hearing. The respondent authority is directed to decide the applications Annexure-C (Colly) presented by the writ-applicant in accordance with law, preferably within a period eight weeks from receipt of this order.
Direct service is permitted.
(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 17 of 17 Downloaded on : Fri Mar 22 21:16:47 IST 2024