Gujarat High Court
Karshan Munjabhai Keshvala vs State Of Gujarat on 26 July, 2022
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/9346/2022 ORDER DATED: 26/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9346 of 2022
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KARSHAN MUNJABHAI KESHVALA
Versus
STATE OF GUJARAT
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Appearance:
MS AYUSHRI M THAKKAR(10775) for the Petitioner(s) No. 1
MR SAHIL B. TRIVEDI, AGP for the Respondent(s) No. 1-3
MR MAULIK G NANAVATI(3318) for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 26/07/2022
ORAL ORDER
1. The issue raised in the present petition is likelihood of right of the petitioner to obtain quarry lease being jeopardized in the event of Government not making a written order for grant of quarry lease despite non-fulfillment by the petitioner of certain conditions mentioned in the Letter of Intent (LoI), particularly one relating to obtainment of Environment Clearance, on or before 24.05.2022 under the provisions the Gujarat Minor Mineral Concession Rules, 2017.
2. The Government of Gujarat, in exercise of the powers conferred by section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 (67 of 1957) and in suppression of all the rules made in this behalf, framed the Gujarat Minor Mineral Concession Rules, 2017. Rule 29 of the said Rules is relevant for adjudication of the issue involved in the present petition, and the same reads thus:
Page 1 of 8 Downloaded on : Sat Dec 24 21:59:19 IST 2022C/SCA/9346/2022 ORDER DATED: 26/07/2022 "29. Existing applications and right of holder of letter of intent.
(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 a 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 a quarry lease shall be forfeited automatically and in such cases, the Government would not be required to issue any order for this purpose:
(a) fulfilment 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 fulfilment 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 2 of 8 Downloaded on : Sat Dec 24 21:59:19 IST 2022
C/SCA/9346/2022 ORDER DATED: 26/07/2022 (4) The order for grant of a quarry lease shall be in writing and shall inter alia also specify that the person in whose favour the order has been issued shall be required to furnish a performance security in accordance with such order in the form of a bank guarantee as per the format specified in Form A or a noninterest bearing security deposit.
(5) A quarry lease deed shall be executed in the format specified in Form B by the Government within thirty days of the date of completion of the conditions specified in sub-rule (4) and shall be subject to the provisions of the Act and the rules made thereunder.
(6) Any letters of intent granted pursuant to an auction process in the State shall continue to be governed by the tender documents relating to such auctions and a quarry lease deed shall be executed in the format specified in Form F by the Government within such period as specified in the grant order. The provisions of sub-rule (2) to (5) shall not apply to such letters of intent:
Provided that save for the right to receive a quarry lease pursuant to the letter of intent, these rules shall apply to quarry lease granted pursuant to the letter of intent.
(7) The date on which a duly executed quarry lease deed is registered shall be the date of commencement of the quarry lease, and the holder of the letter of intent shall ensure that it achieves registration of the quarry lease deed within thirty days from the date of its execution."
Time of two years mentioned in sub-rule (3) for the Government to issue in writing an order granting quarry lease was initially extended to four years and by Notification dated 16.09.2021 extended to five years. A proposal to extend the time is pending consideration with the Government, but till date no final decision has been taken by the Government. Time limit of five years has expired on 24.05.2022. It was before this date of Page 3 of 8 Downloaded on : Sat Dec 24 21:59:19 IST 2022 C/SCA/9346/2022 ORDER DATED: 26/07/2022 24.05.2022 that written order granting lease had to be made by the Government on fulfillment of conditions mentioned in the LoI, failing which the right of the LoI holder to get a quarry lease would stand automatically forfeited.
3. In the facts of the present case, the petitioner has complied with all conditions of LoI, except obtaining Environment Clearance. It is the say of the petitioner that an application has already been made for obtaining the clearance, but for the reasons beyond his control the authority has not yet granted the Environment Clearance. The petitioner, believing that he will not receive the Environment Clearance on or before 24.05.2022 and apprehending that in absence of a formal order granting quarry lease being passed by the Government before the said date he shall lose his right to get the quarry lease, approached this Court by filing the present petition.
4. This Court, after hearing the parties and considering the peculiar facts of the case, passed an interim order on 10.05.2022 issuing certain directions. Paragraph No.4 of the order containing the directions issued by the Court reads thus:
"4. Having heard the learned advocates appearing for the respective parties and having considered the submissions made, it is hereby directed that:
(I) The petitioner shall file an undertaking before the respondent-Collector within a period of two weeks from the Page 4 of 8 Downloaded on : Sat Dec 24 21:59:19 IST 2022 C/SCA/9346/2022 ORDER DATED: 26/07/2022 date of the receipt of the copy of the present order to the effect that the petitioner shall not commence or carry out any mining activity till the Environment Clearance certificate is issued in favour of the petitioner.
(II) The State Government shall issue a formal order granting quarry lease within a period of 02 weeks from today and the District Collector shall thereafter execute the lease deed within a period of 02 weeks on filing of undertaking. The entire exercise of issuance of formal order granting lease and the execution of lease deed is directed to be completed on or before 24.05.2022;
(III) In the meantime, the State Environment Impact Assessment Authority is directed to complete and/or facilitate completion of all formalities leading to grant of Environment Clearance, and issue such instructions as may be necessary to the concerned agencies."
5. Learned Advocate appearing for the petitioner has submitted that the directions issued by this Court on 10.05.2022 have till date not been complied with by the authorities in as much as no order has been passed by the Government granting quarry lease and no lease deed has been executed. Learned Advocate has submitted that the petitioner has filed an undertaking in terms of the order of this Court assuring that he shall not commence mining activity till the Environment Clearance is granted to him by the State Environment Impact Assessment Authority.
6. Learned Assistant Government Pleader has submitted on instructions that the interim directions issued by this Court on 10.05.2022 could not be complied with as a copy of petition filed by the petitioner was not served upon the authority. He has further submitted, on instructions, that the Page 5 of 8 Downloaded on : Sat Dec 24 21:59:19 IST 2022 C/SCA/9346/2022 ORDER DATED: 26/07/2022 petitioner has not deposited the requisite stamp duty and not furnished the performance bank guarantee for execution of lease deed.
7. At this stage, learned Advocate for the petitioner submits that his client shall deposit the requisite stamp duty and furnish the bank guarantee for the amount as may be indicated by the authority within a period of 04 weeks.
8. Heard learned Advocates appearing for the respective parties and perused the record of the case. The Court does not find the explanation offered by the respondent authorities for not complying with the directions of the Court to be acceptable. Non-supply of the petition filed before the Court by the petitioner to the respondent authorities cannot and should not have been the reason for not abiding with the interim directions of this Court, particularly when notice on the petition has been waived by the learned Assistant Government Pleader and the directions have been passed by the Court after hearing the learned Assistant Government Pleader appearing for the respective authorities. The disobedience by the respondent authorities of the directives issued by the Court is deprecated and the authorities are cautioned to ensure strict compliance of orders passed by the Court.
Page 6 of 8 Downloaded on : Sat Dec 24 21:59:19 IST 2022C/SCA/9346/2022 ORDER DATED: 26/07/2022
9. The State Government is granted a further period of 04 weeks to pass a written order granting quarry lease to the petitioner, and to that extent the time period prescribed in the interim order dated 10.05.2022 stands extended. The State Government shall not withhold passing of a formal order granting quarry lease on account of any technicality, including the expiration of period of 05 years prescribed in Rule 29 of the Gujarat Minor Mineral Concession Rules, 2017.
10. After the State Government makes the written order granting lease, the District Collector shall, within a period of 02 weeks thereafter, execute a formal lease deed in favour of the petitioner. If any formality, other than deposit of stamp duty and furnishing of bank guarantee, needs to be completed at the end of the petitioner, the same shall be intimated to the petitioner within a period of 03 days of passing of order of quarry lease by the Government. In any case, the lease deed should get executed in favour of petitioner within a period of 06 weeks from today.
11. A request has been made for issuance of appropriate directions to the State Environment Impact Assessment Authority to consider the application for grant of Environment Clearance. Learned Advocate appearing for the authority has submitted that the petitioner has to place Page 7 of 8 Downloaded on : Sat Dec 24 21:59:19 IST 2022 C/SCA/9346/2022 ORDER DATED: 26/07/2022 documents before the authority showing compliance of the Terms of Reference, which has not yet been done. He has however assured that on submission of all the requisite documents by the petitioner, the application for grant of Environment Clearance shall be considered expeditiously by the authority. Needless to state, the authority shall consider and decide the application of the petitioner for grant of Environment Clearance on submission of all the necessary documents by the petitioner before it without any undue delay.
12. With the aforesaid observations, the petition is disposed of with no order as to costs.
(A. S. SUPEHIA, J) *** Bhavesh-[PPS]* Page 8 of 8 Downloaded on : Sat Dec 24 21:59:19 IST 2022