C/SCA/9003/2022 JUDGMENT DATED: 08/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9003 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
SHIRISHKUMAR CHHAGANBHAI VIRAMGAMA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MS. MANVI DAMLE, ADVOCATE FOR MS AYUSHRI M THAKKAR(10775)
for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MS. SHRUNJAL SHAH, ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
MR MAULIK G NANAVATI(3318) for the Respondent(s) No. 4
==========================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 08/12/2022
ORAL JUDGMENT
1 Rule returnable forthwith. Learned advocates Page 1 of 7 Downloaded on : Sat Dec 24 02:15:29 IST 2022 C/SCA/9003/2022 JUDGMENT DATED: 08/12/2022 appearing for the respective respondents waives service of notice of rule.
2 On 05.05.2022, the Co-ordinate Bench of this Court, passed the following order:
1. Heard Ms. Ayushri M. Thakkar, learned counsel appearing for the writ-applicant, Mr. Ishan Joshi, learned Assistant Government Pleader appearing for the respondent Nos. 1 to 3 - State authorities. Mr. Maulik Nanavati, learned counsel, who usually appears for State Environment Impact Assessment Authority - respondent no.4 is directed to appear on advance copy by the Court. Mr. Nanavati, learned counsel has accordingly appeared on behalf of the respondent no.4.
2. Ms. Ayushri M. Thakkar, learned counsel appearing for the writ-applicant submitted that Letter of Intent has been issued in favour of the writ-applicant, and that the writapplicant has complied with almost all the conditions mentioned in the Letter of Intent. Ms. Thakkar, learned counsel further submitted that the writ-applicant has applied for grant of Environment Clearance by making an appropriate application to the State Environment Impact Assessment Authority. However, the final clearance certificate has not been issued or granted by the Authority. Ms. Thakkar, learned counsel has further invited attention of the Court to order dated 25.11.2021 passed by the District Collector, Jamnagar, suo-motu canceling the Letter of Intent.
Ms. Thakkar, learned counsel has submitted that the District Collector once having issued Letter of Intent, pursuant to the order passed by the Revisional Authority does not have power, either Page 2 of 7 Downloaded on : Sat Dec 24 02:15:29 IST 2022 C/SCA/9003/2022 JUDGMENT DATED: 08/12/2022 under the Act or the Rules or otherwise to review / recall the said order. Therefore, the order dated 25.11.2021 canceling the Letter of Intent is without jurisdiction. Ms. Thakkar, learned counsel has argued that, even otherwise the said order has been passed without issuance of notice of the writ- applicant and grant of any opportunity of hearing, thereby, violative of the principles of natural justice. Ms. Thakkar, learned counsel further contended that in the event, the formal order of quarry lease is not made by the Government and a lease deed is not executed by the District Collector on or before 24.05.2022, the right of lease in favour of the writ- applicant would stand forfeited.
3. Ms. Thakkar, learned counsel relied on the order passed by the coordinate bench of this Court in Special Civil Application No. 7 of 2017 and Special Civil Application No. 6602 of 2021 with allied matters.
4. Having heard the learned counsel appearing for the respective parties, it is hereby directed that:
(I) The writ-applicant shall file an undertaking before the respondent- Collector within a period of 10 days from the date of the receipt of the copy of the present order to the effect that the writ-applicant shall not commence or carry out any mining activity till the Environment Clearance certificate is issued in favour of the writ-applicant.
(II) The order dated 25.11.2021 passed by the respondent - District Collector shall remain stayed, pending the present writ-application.
The State Government shall issue a formal order granting quarry lease within a period of 10 days from today and the District Collector shall thereafter execute the lease deed within a period of 10 days on filing of undertaking. The Page 3 of 7 Downloaded on : Sat Dec 24 02:15:29 IST 2022 C/SCA/9003/2022 JUDGMENT DATED: 08/12/2022 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. The issuance of formal order granting quarry lease and execution of sale deed, shall be subject to the final outcome of the present petition;
(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. Matter to be listed for further hearing on 05.07.2022. Direct service is permitted."
3 Ms. Manvi Damle, learned counsel appearing on behalf of Ms.Ayushri Thakkar, learned counsel for the petitioner, submits that as contained in the order dated 05.05.2022, the petitioner has filed an undertaking with the concerned authority. She further submits that the respondent authorities have not complied with the other directions contained in the said order. She has further invited the Court's attention to the order dated 29.09.2022, wherein it has been recorded as under:
"Mr.Sahil Trivedi, learned Assistant Government Pleader, upon telephonic instructions from Mr.Abhijeet Chobey, Law Officer, Commissioner of Page 4 of 7 Downloaded on : Sat Dec 24 02:15:29 IST 2022 C/SCA/9003/2022 JUDGMENT DATED: 08/12/2022 Geology & Mining, states that the order dated 5.5.2022 passed by Co-ordinate Bench of this Court shall be complied with within a period of two weeks from today in the same manner as other interim orders passed by co-ordinate benches have been complied with.
In view of the above, stand over to 14.10.2022."
4 Even today, it is contended that the interim order dated 05.05.2022 and the assurance as reflected in the order dated 29.09.2022 are not fully complied with by the respondent authorities.
5 Mr.Maulik Nanavati, learned counsel, has invited the attention of the Court to an order passed by a co-ordinate Bench of this Court in Special Civil Application No. 9346 of 2022 dated 26.07.2022, wherein, the respondent authorities despite issuance of interim directions by this Court had chosen not to comply with such directions. He has drawn attention of the Court to relevant paragraphs, which read as under:
"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.Page 5 of 7 Downloaded on : Sat Dec 24 02:15:29 IST 2022
C/SCA/9003/2022 JUDGMENT DATED: 08/12/2022 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 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 Page 6 of 7 Downloaded on : Sat Dec 24 02:15:29 IST 2022 C/SCA/9003/2022 JUDGMENT DATED: 08/12/2022 cautioned to ensure strict compliance of orders passed by the Court."
6 In view of the above, the respondent authorities are directed to pass a formal order granting quarry lease if not already passed, and thereafter, execute a lease deed in favour of the petitioner within a period of eight weeks from the date of receipt of copy of this order.
It is reported that the Environmental Clearance Certificate has not yet been granted to the petitioner, and therefore, the petitioner shall continue to abide by the undertaking given by the petitioner to the effect that the petitioner shall not undertake any mining activity till the time the Environmental Clearance Certificate is obtained by the petitioner and all the conditions of the Letter of Intent are fulfilled.
With the aforesaid observations, the petition is allowed. Rule is made absolute to the above extent.
(BIREN VAISHNAV, J) BIMAL Page 7 of 7 Downloaded on : Sat Dec 24 02:15:29 IST 2022