M/S. Jai Gajanan Shri Gajanan ... vs State Of Maha., In The Ministry Of ...
2022 Latest Caselaw 463 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR

                                 Writ Petition No.5480/2021


       M/s Jai Gajanan Shri Gajanan Building Material Suppliers,
       through its Proprietor,
       Shri Dilip s/o Sahadeorao More,
       Aged 53 years, Occ.-Business,
       R/o.-Lohari-Bz. Post Jalgaon Nahate,
       Tehsil Akot, District Akola.                           ..... Petitioner.


                                                      - Versus -

       1.    State of Maharashtra,
             In the Ministry of Revenue and Forest
             Mantralaya, Mumbai-32, through its Secretary,

      2. The District Collector, Akola.                      .....Respondents.
     **********************************************************************
                   Mr. V.S. Kukday, Advocate for petitioner.
        Ms N.P. Mehta, Assistant Government Pleader for respondents.
     ***********************************************************************************************************

      CORAM          : A.S. CHANDURKAR &
                       PUSHPA V. GANEDIWALA, JJ.

      DATE           : 13-01-2022.


      Oral Judgment (Per : A.S. Chandurkar, J.)



                         Rule.    Rule made returnable forthwith and heard learned

      Counsel for the parties.

2. The petitioner is in the business of excavation and

transportation of sand. Under the revised excavation policy document

dated 03-09-2019 such excavation is permissible through e-auction.

The respondent no.2 on 18-11-2021 and thereafter on 09-12-2021 has

issued e-auction notices and invited bids for excavation of sand from

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various Sand-Ghats in the district of Akola. The petitioner being

desirous of participating in that auction process found that

environmental clearance was yet to be obtained by the respondents on

the date of the e-auction. It is the case of the petitioner that as per

the policy decision dated 03-09-2019 it was necessary for the

respondents to have obtained environmental clearance prior to issuing

the e-tender notice as excavation without such environmental

clearance was not permissible. Since according to the petitioner, the

e-auction was being held in the absence of the appropriate

environmental clearance, he has approached to this Court raising a

challenge to the e-auction notices.

3. Mr. V.S. Kukday, learned Counsel for the petitioner

submitted that pursuant to the judgment of the Hon'ble Supreme

Court in the case of Deepak Kumar etc vs State of Haryana and

others, reported in 2012 AIR(SC) 1386, it was mandatory for the

respondents to have permitted excavation activities only after

obtaining the environmental clearance from the competent authority.

Referring to the Government Resolution dated 03-09-2019 and

specially Clause (VII) thereof he submitted that in the absence of such

environmental clearance, excavation was not permissible. Despite this

mandatory requirement, the respondent no.2 proceeded to issue

e-auction notices in the absence of environmental clearance. Inviting

attention to the judgment of this Court in Writ Petition No.6305/2013

(Khemchand Nemichand Kosare vs State of Maharashtra and

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others) decided on 02-07-2014 it was submitted that this very

question of issuing e-tender notices prior to obtaining environmental

clearance was considered. At that relevant time, the policy dated

12-03-2013 was in operation and as per Clause 4(D) therein excavation

was not permissible unless environmental clearance was obtained. It

was after considering the aforesaid policy that this Court had quashed

the e-auction notices as they were issued before receipt of

environmental clearance. Inviting attention to the impugned auction

notices as well as the revised policy dated 03-09-2019 it was pointed

out that while submitting the bids, 25% of the bid amount was required

to be deposited within a period of 48 hours from the auction and the

balance amount was to be deposited within a period of one month

from the date of the auction. Conducting e-auction prior to obtaining

environmental clearance resulted in uncertainty since the petitioner

was not in a position to gather as to which Sand-Ghat would receive

environmental clearance as per the prevailing policy. On the contrary,

if the auctions were held after obtaining environmental clearance the

position would become clear which would facilitate participation in the

e-auction. There was no justifiable reason to disregard the mandatory

requirement as prescribed by the Hon'ble Supreme Court and

thereafter incorporated in the revised policy dated 03-09-2019. On this

count, it was submitted that the impugned notices proposing to

conduct e-auction in the absence of environmental clearance were

liable to be set aside.

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4. Ms. N.P. Mehta, learned Assistant Government Pleader for

the respondents opposed the aforesaid submissions and relied upon

the affidavit in reply filed by the respondent no.2. It was submitted that

pursuant to various directions issued in Public Interest Litigation

No.110/2018 and Public Interest Litigation No.65/2018, the State

Government has formulated a revised policy dated 03-09-2019. By

following the law laid down by the Hon'ble Supreme Court in the case

of Deepak Kumar (supra), it was mandatory to obtain the

environmental clearance prior to conducting the work of excavation. In

the absence of such environmental clearance since excavation was not

permissible, conduct of e-auction would not cause any prejudice to any

party as actual excavation would be permitted only after receiving the

environmental clearance. It was further submitted that the decision

relied upon by the learned Counsel for the petitioner in Khemchand

Kosare (supra) was delivered when the earlier policy of 2013 was in

operation. Since a revised policy has now been framed on 03-09-2019

and it was mandatory to obtain environmental clearance prior to actual

excavation there was no breach of any order passed by the Hon'ble

Supreme Court. Attention was also invited to the impugned auction

notices to submit that it was clearly mentioned therein that excavation

work would be permissible only after receiving such environmental

clearance and that on failure to receive such clearance the contract

would be treated as cancelled. The bidders therefore had noticed that

unless such environmental clearance was received no excavation

would be possible. It was open for the petitioner to participate in the

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e-auction and undertake excavation activities only after receiving the

necessary clearance if his bid is successful. Since the revised policy

dated 03-09-2019 was framed pursuant to the decision in the Public

Interest Litigation there was no reason to interfere in the e-auction

notices. Moreover, the earnest amount deposited pursuant to a bid

as submitted was returned in case the environmental clearance was

not received and hence no prejudice was caused to any bidder if such

clearance was not received. As a matter of fact, it was submitted that

the environmental clearance has now been received on 29-12-2021

and excavation activities pursuant to the auction notice could be

undertaken. It was therefore submitted that there was no case made

out to grant any relief to the petitioner.

5. We have heard the learned Counsel for the parties at

length and we have perused the documents placed on record. We

have given due consideration to the respective contentions.

6. At the outset, it may be stated that in view of the judgment

in Deepak Kumar (supra), it is mandatory for the concerned authority

to permit excavation activities of minor minerals only after obtaining

environmental clearance from the competent authority. This position

was reflected in the earlier Government Resolution dated 12-03-2013

issued by the State Government. Clause 4(D) thereof specifically

states that excavation activities would not be permissible until the

environmental clearance was duly received. It is further seen that in

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Public Interest Litigation No.110/2018 and Public Interest Litigation

No.65/2018 the State had assured the Court that a fresh mining policy

would be framed by the State Government pursuant to the

observations made in the order dated 07-12-2018. In the light thereof,

the revised policy was brought into force on 03-09-2019. Clause (VII)

of this policy also stipulates that unless environmental clearance is

received it would not be permissible to excavate any minor mineral.

From the aforesaid it is clear that unless environmental

clearance is duly granted by the competent authority it would not be

permissible to excavate any minor mineral in the State.

7. In Khemchand Kosare (supra) e-auction notices that were

issued after long after commencement of the lease period were

challenged. This Court after considering the judgment in Deepak

Kumar (supra) had held that issuance of e-tender notices after

commencement of the lease period were not sustainable in law

especially when they were issued without seeking environmental

clearance from the Ministry of Environment and Forest. The following

observations in the said judgment are relevant and are reproduced

herein :-

"..........Actions which ought to have been performed before issuance of etender notices are thought of being performed after the auction is concluded. Securing an environmental clearance would be a precondition for grant of lease for extraction of minor minerals. It would be worthwhile to refer to the judgment reported in AIR 2012 SC 1386 (Deepak Kumar, etc. Versus State of Haryana & Ors.), in this regard. If the respondents were aware that it was

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necessary to secure the environmental clearance before the grant of lease for extraction of minor minerals, it was expected in the least, of the Officers to have secured the environmental clearance before the issuance of the e-auction notices. The object of issuance of eauction notices for granting lease of sandghats for extraction would be frustrated in the absence of environmental clearance. At the cost of repetition, we hold that it is necessary for the respondents to secure the environmental clearance for the particular sandghats in respect of which the eauction notices are sought to be issued, before they are issued. We do not expect the respondents to ask the bidders to complete the exercise of participation in pursuance of the eauction notices merely to inform them later that the entire process conducted by the respondents for auctioning the sandghats has frustrated in view of the refusal from the Ministry of Environment and Forest to grant environmental clearance for the extraction of the minerals from the concerned sandghats. The submission made on behalf of the respondents that the bidders have nothing to worry about if environmental clearance is not secured and the 1/4th amount deposited by them would be refunded immediately without any hassles is nothing but mockery. While holding that there was impropriety in issuance of impugned eauction notices, we expect the respondents to ensure that the environmental clearance is secured before issuance of eauction notices for auction of the sandghats in future and also ensure that the e-auction notices are issued at such point of time before the commencement of the lease period that the successful bidders-lessees would be entitled to execute the contract for extraction of minor minerals for the entire lease period.

For the reasons aforesaid, the writ petition is partly allowed. Since the lease period in the impugned eauction notices is to expire on 30th of September, 2014, we hope and trust that the respondents would conduct the auction of sandghats in future, after securing the environmental clearance from the Ministry of Environment and Forest and after issuing the eauction notices at such point of time before the commencement of the lease period that the eauction is held before the commencement of the lease period and the successful bidderlessee is entitled to execute the contract for the entire lease period."

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From the aforesaid observations it becomes clear that after

considering the judgment of Hon'ble Supreme Court referred to herein

above it was held that issuance of e-auction notices prior to obtaining

environmental clearance was impermissible. This Court had expected

that in future such e-auction notices would be issued after securing

necessary environmental clearance.

8. The stand of the respondent no.2 is that even if e-auction

notice is issued prior to receipt of environmental clearance, the actual

work of excavation of any minor mineral would be permissible only

after receiving such environmental clearance. This was also mentioned

in the e-auction notices that were impugned in the Writ Petition.

Another justification sought to be putforth is that the judgment of this

Court in case of Khemchand Kosare (supra) was delivered on

02-07-2014 when the earlier policy dated 10-03-2013 was in vogue.

Since that policy has now been replaced by the revised policy dated

03-09-2019, the observations made in that judgment could not be

made applicable in the context of the revised policy dated 03-09-2019.

We are unable to accept these contentions made on behalf of the

respondents. This Court in its earlier judgment dated 02-07-2014 has

considered this very aspect including the action of the respondents of

issuing e-auction notices prior to grant of environmental clearance.

The aspect of deposit of 1/4th bid amount while submitting the bid and

the return of that amount on cancellation of the auction for want of

environmental clearance has also been considered by this Court. We

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find that since it is mandatory to obtain environmental clearance prior

to permitting excavation of the concerned minor mineral, the rationale

behind directing the authorities to first obtain such environmental

clearance and then issue e-auction notices would continue to apply

even in the context of the revised policy dated 03-09-2019. No useful

purpose would be served by first issuing an e-auction notice and

subsequently proceeding to cancel the work in question for want of

environmental clearance. It is rightly submitted on behalf of the

petitioner that on acceptance of a bid, 25% of the bid amount has to be

deposited within 48 hours and the remaining 3/4th amount has to be

deposited within a period of one month from that date. Thus, if

environmental clearance is not received after a period of one month

from the date of the e-auction a bidder would be required to deposit the

entire bid amount only to be subsequently told that for want of

environmental clearance excavation would not be permissible pursuant

to his successful bid. This would result in undue hardship and would

also restrict a prospective bidder from participating in other e-auctions

at other mining sites as his funds would unnecessarily remain locked.

On the contrary, e-auction notices issued after receiving environmental

clearance would present a clear picture before a prospective bidder

and it would also indicate the specific period for which the mining lease

would be granted. We do not find any merit or justification whatsoever

in the contentions putforth by the respondents for issuing e-auction

notices even prior to receipt of the mandatory environmental

clearance. We find that the observations made by this Court and the

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reasons that weighed it in Khemchand Kosare (supra) are relevant

even with regard to the revised policy dated 03-09-2019

notwithstanding the fact that the earlier policy dated 10-03-2013 has

now ceased to operate.

9. Hence for aforesaid reasons, the challenge as raised to the

e-auction notices dated 18-11-2021 and 09-12-2021 on the ground that

the same were issued before receipt of environmental clearance

deserves to be upheld. Accordingly, the e-auction notices dated

18-11-2021 and 09-12-2021 are set aside. It is open for the respondent

no.2 to issue fresh e-auction notice of Sand-Ghats for which

environmental clearance from the State Level Committee has been

issued.

10. Rule is made absolute in aforesaid terms with no order as to

costs.

(Pushpa V. Ganediwala, J.) (A.S. Chandurkar, J.)

Deshmukh