Gujarat High Court
Shivam Minerals And Allied Industries ... vs State Of Gujarat on 17 May, 2019
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/9570/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9570 of 2019
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SHIVAM MINERALS AND ALLIED INDUSTRIES PRIVATE LIMITED
Versus
STATE OF GUJARAT
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Appearance:
MS SHIVANI RAJPUROHIT, ADVOCATE for the Petitioner No. 1
DR VENUGOPAL PATEL, AGP for the Respondent No. 1
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 17/05/2019
ORAL ORDER
1. Rule. Learned Assistant Government Pleader waives service of rule on behalf of the respondent-state.
2. This petition is arising out of the same subject matter seeking direction from the State Government to pass an order for grant of quarry lease, on the ground that the Letter of Intent (LOI) has been issued in favour of the petitioner.
3. Learned Advocate for the petitioner submitted that the petitioner had succeeded in getting permission for conducting mining activities as per the provision of Mines and Minerals (Regulation and Development) Act, 1957 and Gujarat Minor Mineral Concessions Rules, 2017. Pursuant to which, LOI was executed on 07.06.2017. Under the LOI, two conditions viz. environmental clearance and approved mining plan from the competent authorities were necessary. It is submitted that mining of mineral, which the petitioner intended to, was Bentonite in the area of S.No. 141 paiki of Village: Punadi, Taluka-Mandvi, District- Kutch for Page 1 of 7 Downloaded on : Wed Jul 03 00:11:31 IST 2019 C/SCA/9570/2019 ORDER 2.60 Hectares.
4. It is submitted that peculiar situation has arisen on account of the decision of the NGT with regard to the constitution of the Committee, which is responsible for issuing necessary sanction and therefore, as time limit prescribed under the relevant rules for the period of two years is to expire, the present petitions are filed.
5. Learned Advocate for the petitioner draws attention of this Court to relevant Rule No.29, wherein sub-rule(3) provides for the Government to issue an order in writing for grant of quarry lease to the holder of LOI upon following of certain conditions prescribed within a period of two years from the date of commencement of the Rules. It is submitted that the Rules came into effect from 24-05-2017 and therefore, period of two years is to expire on 23-05-2019. However, on account of the condition as mentioned, the matter did not progress beyond the LOI and no order for grant of quarry lease was passed in favour of the petitioner.
6. It is submitted that provisions itself make its clear that within two years of the Rules coming into effect, if necessary formalities like grant of order for quarry lease is not passed, in that eventuality, the grant of quarry lease in favour of the petitioner would automatically forfeit. It is submitted that for no fault of the petitioner, the petitioner would stand to loose grant of quarry lease, which is already decided in favour of the petitioner by the State Government.
7. Learned Advocate for petitioner draws attention of this Court to the decision of this Court in Civil Application No. 1 of 2018 in Special Civil Application No. 417 of 2017, where, in the case of major mineral an identical situation had arisen. The Page 2 of 7 Downloaded on : Wed Jul 03 00:11:31 IST 2019 C/SCA/9570/2019 ORDER Division of Bench of this Court directed the respondent to execute the mining lease without any further delay and upon the petitioner following certain conditions. He also refers to the decision of this Court in Special Civil Application No. 7 of 2017 where, in identical set of circumstances, the Court had proceeded to issue the direction to execute the lease deed on certain conditions prescribed.
8. It is submitted that the petitioner is also ready and willing to abide by the conditions as well as give an undertaking before this Court that till the necessary formalities are not concluded, the petitioner will not enter into any mining activities.
9. As against this, learned AGP, referring to the Affidavit in reply filed on behalf of the respondent No.3, submitted that the LOI was executed after observing all the necessary requirements and that on account of peculiar situation, which arose on account of the time line mentioned in Rule-29(3) of the Rules, 2017, the State has also undertaken necessary steps, more particularly in view of the applicability of Model Code of Conduct of General Election, 2019.
10. Affidavit filed by the respondent No.3 is taken on record today. Having heard learned Advocates for the parties and having perused the documents on record, it is an admitted position that by order dated 07.06.2017, LOI was issued in favour of the petitioner and such LOI was subjected to the condition and required environmental clearance from the Gujarat Pollution Control Board and Mining Plan.
11. Rule-29 of the Rules-2017 reads as under:
"29. Existing applications and right of holder of letter of intent.Page 3 of 7 Downloaded on : Wed Jul 03 00:11:31 IST 2019 C/SCA/9570/2019 ORDER
(1) All applications for grant of a quarry lease received prior to the date of commencement of these rules shall become ineligible.
(2) Without prejudice to sub-rule(1), where the Government has communicated a prior written approval for grant of quarry lease or if a letter of intent has been issued in writing by the Government to grant a quarry lease, before the commencement of these rules, the quarry lease shall be granted in accordance with the provisions of sub-rules (3) to (6) (inclusive).
(3) The Government shall issue an order in writing for grant of a quarry lease to the holder of a letter of intent upon satisfaction of the following conditions within a period of two years from the date of commencement of these rules, failing which the right of such an applicant for grant of quarry lease shall be forfeited automatically and in such cases, the Government would not be required to issue any order for this purpose:
(a) fulfillment of the conditions of the prior approval or the letter of intent;
(b) the holder of letter of intent having obtained all consents, approvals, permits, no-objections and the like as may be required under applicable laws for commencement of mining operations;
(c) the holder of letter of intent having satisfied the conditions specified in CHAPTER VIII with respect to a mining plan (including the mine closure plan);
(d) furnishing financial assurance as specified in rule 64:
Provided that upon receipt of a written application, stating reasons for non-fulfillment of the conditions within a period of two years, the Government may, for reasons recorded in writing extend the period of two years by an additional period of not more than six months:
Provided further that, save for the right to receive a quarry lease pursuant to the prior approval or the letter of intent, these rules shall apply to quarry lease granted pursuant to the prior approval or the letter of intent.Page 4 of 7 Downloaded on : Wed Jul 03 00:11:31 IST 2019 C/SCA/9570/2019 ORDER
12. Notification of 9th March, 2018 reads as under:
"9. In the said rules, in rule 29, for sub-rule (2), the following sub-rule shall be substituted, namely:-
"(2) Without prejudice to sub-rule(1), where before the commencement of these rules, the Government has communicated a prior written approval for grant of quarry lease to an applicant; or if a letter of intent has been issued in writing to an applicant by the Government to grant a quarry lease, the quarry lease shall be granted in accordance with the provisions of sub-rules (3) to (6) (inclusive):
Provided that, if an applicant has applied for and obtained: (a) an environmental clearance; or (b) an approval for change in land use to non-agricultural purposes; or (c) an approval for mining plan, for conducting mining operations over the proposed lease area governed by these rules, prior to the commencement of these rules:
Provided further that, such person shall make a written representation before the Government with relevant documents and if Government deems fit, shall issue letter of intent, which shall entitle such person to obtain a quarry lease, in the same manner as if such letter of intent was issued before the commencement of these rules."
13. The Note for approval produces along with Affidavit of the respondent No.3 mentions as under:
"C.Saved cases by virutue of rules:
According to Rule-29(1) of the Gujarat Minor Mineral Concessions Rules, 2017, all the applications pending for grant of quarry lease on the date of commencement this rule shall become ineligible subject to the provisions laid down under Rule 29 (2) and 29(3).
As per Rules 29(2) of the Rules the government shall issue an order in writing for grant of quarry in all such cases wherein LOI have been issued before date of the commencement of the rules. The LOI holders shall fulfill all the conditions such as submitting EC, Mining Plan etc. and a proposal shall be made to the District Office. The District Office shall forward the said Proposal to the Commissioner, Geology and Mining. The Department on receipt of Page 5 of 7 Downloaded on : Wed Jul 03 00:11:31 IST 2019 C/SCA/9570/2019 ORDER such proposal from the Commissioner, Geology and Mining shall issue grant order. As per Rule-29(3) of the Rules, all the above mentioned procedure has to be completed within two years from the date of commencement of this rules i.e. before 23.05.2019. Cases wherein LOI have been issued pursuant to the Gujarat Minor Mineral Concession (Amendment) Rules, 2018 are also supposed to be decided before 23.05.2019.
As per the information available with the Department, approximately 1300 proposal will be made to the Department. Some of the applications have already been received wherein LOI have been already been issued. All the above-mentioned procedure has to be completed before 23.05.2019 as per Rule-29(3) of the Gujarat Minor Mineral Concessions Rules, 2017.
Note on urgency:
1. The timeline has been mentioned in the rule 29(3) of GMMCR, 2017 that govt. will issue an order in writing for grant of a quarry lease to the holder of LOI within a period of two years from the date of commencement of these rules (means upto 23/05/2019. Failing which the right of such an applicant for grant of a quarry lease shall be forfeited automatically.
2. Such cases are approx. in number of 1300 around. It is time-taking to scrutinise the proposal, issue LoI and detail order afterwards.
3. Any type of delay or failure to address such cases may arise legal issue later on. Due to applicability of Model Code of Conduct on account of General Elections 2019, approval of the State Election Commission is required to keep up the work. So, here is the proposal to Screening committee to consider it and considering the importance, kindly allow to keep the mentioned work (Quarry permit, E-auction and Saved cases by virtue of rules) continue."
14. Considering the aforesaid facts and circumstances and having satisfied that the petitioner has in his favour, LOI to grant of quarry lease and that is also prior to the commencement of Rules, 2017, which are given effect from 24-05-2017 under Sub-rule(3). It is for the Government to Page 6 of 7 Downloaded on : Wed Jul 03 00:11:31 IST 2019 C/SCA/9570/2019 ORDER issue an order in writing for grant of quarry lease to the petitioner. It is only after such order, the petitioner is required to undertake necessary formalities and provide necessary sanction/ clearances from the Authorities within a stipulated period. Upon failure to pass an order for grant of quarry lease, it would not be possible for the petitioner to provide such necessary clearances and that too within a stipulated period, which otherwise lead to forfeiture of their rights under the quarry lease.
15. In view of the aforesaid, it is directed that the Government shall pass an order in writing on or before 22.05.2019 for grant of quarry lease to the petitioner in accordance with the Condition mentioned in the LOI with further condition as under:
(I) The petitioner shall file an undertaking before the District Collector, Kutch latest by 18.05.2019 to the effect that the petitioner shall not commence or carry out any mining activity in the area in question till the environmental clearance and other conditions as mentioned in the letter of Intent are fulfilled, as provided under the Mines and Minerals (Development and Regulation) Amendment Act, 2015 is obtained by the petitioner.
16. The petition is allowed in the aforesaid terms. Rule is made absolute with no order as to costs. Direct service is permitted today.
(BIREN VAISHNAV, J) SHRIJIT PILLAI Page 7 of 7 Downloaded on : Wed Jul 03 00:11:31 IST 2019