M/S Shivkrupa Stone Quarry ... vs State Of Gujarat
2021 Latest Caselaw 3699 Guj

         C/SCA/12593/2019                                        JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 12593 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

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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 ?

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        M/S SHIVKRUPA STONE QUARRY THROUGH PROPRIETOR
                HARISHBHAI MANGALBHAI CHAUDHARI
                              Versus
                        STATE OF GUJARAT
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Appearance:
MR SATYAM Y CHHAYA(3242) for the Petitioner(s) No. 1
MR RONAK RAVAL, AGP(1) for the Respondent(s) No. 1,2,3,4
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    CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                               Date : 03/03/2021

                               ORAL JUDGMENT

1. Rule. Learned Assistant Government Pleader Mr.Ronak Raval waives service of notice of rule for respondents.

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2. This petition is filed under Article 226 of the Constitution of India in which the petitioner has prayed for the following reliefs:

"A.xxxx

B. YOUR LORDSHIPS may be pleased to issue appropriate writ, order or direction and thereby quash and set aside the impugned order dated 02.05.2016 [ANNEXURE-F] passed by the Respondent No.3;

C. YOUR LORDSHIPS may be pleased to issue appropriate writ, order or direction and thereby direct respondent authorities more particularly respondent no.2 to forward positive proposal/opinion to Respondent No.3 District Collector Surat to the effect that in the facts and circumstances of the present case, the case of the petitioner is covered within the saving clause more particularly in view of the Notification dated 09.03.2018 [ANNEXURE-G] and thereby direct District Collector to decide application of the petitioner for grant of quarry lease in consonance with the prevailing rules;

D. Pending admission and final disposal of this petition, YOUR LORDSHIPS may be pleased to direct respondent no.2 to consider the case of the petitioner in accordance with prevailing rules after giving proper opportunity of being heard to the petitioner;

E.xxxxx"

3. Heard learned advocate Mr.Chhaya appearing for the petitioner and learned AGP Mr.Raval for the respondents.

       C/SCA/12593/2019                                                  JUDGMENT



4.          Learned             advocate             for     the         petitioner

referred to the averments made in the memo of the petition and thereafter submitted that the petitioner filed application for grant of quarry lease with respect to the mineral in the land in question i.e. land bearing block no.56 of village Karvav, Taluka Mangrol, District Surat admeasuring 04.034.04 sq.mtr.-hectare which is of the ownership and in occupation of the petitioner. It is submitted that the land in question is non-agricultural land. It is submitted that the said land was converted into non-agricultural use for industrial purpose for the purpose of stone quarry pursuant to the order dated 28.6.2013 passed by the District Panchayat.

4.1 It is further submitted that the application was filed by the petitioner for obtaining the quarry lease on 13.9.2013 as per the provisions contained in Mines and Minerals (Development and Regulations) Act, 1957 read with Gujarat Mines and Mineral Concession Rules, 2010. It is the case of the petitioner that all the requisite documents were submitted as per the prevailing policy along with the application. Thereafter, the competent authority issued Environment Clearance Certificate in favour of the petitioner on 25.3.2015. Learned advocate for the petitioner Mr.Chhaya has referred the said

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certificate which is on record at page 25. At this stage, it is submitted that resolution of Gram Sabha was also produced before the concerned authority. The said resolution was passed on 28.9.2012.

4.2 Learned advocate thereafter, submitted that no reply was received by the petitioner pursuant to the application filed by him and therefore the petitioner submitted a representation to the respondent authority and inquired about the status of his application. The said representation was made on 9.8.2018, copy of which is placed on record at page 41. After referring to the said document, it is submitted that in the said communication, the petitioner has referred about the fact that land in question is non-agricultural land, the Environment Clearance Certificate has been obtained by him as well as there is a reference of resolution passed by Gram Sabha and No Objection Certificate issued by the Forest Department.

4.3 At this stage, it is submitted that thereafter the petitioner came to know that the impugned order dated 2.5.2016 has been passed by the respondent Collector whereby his application has been rejected on the ground that the petitioner has not produced the resolution of

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Gram Sabha as well as Environment Clearance Certificate though notice was issued to the petitioner on 11.12.2015. The petitioner, has therefore filed this petition.

4.4 Learned advocate for the petitioner has mainly contended that the impugned order has been passed by the respondent no.3 without giving opportunity of hearing to the petitioner and therefore the petitioner has directly filed the petition before this Court. It is further submitted that the petitioner has already supplied Environment Clearance Certificate as well as resolution of the Gram Sabha to the respondent no.3. In fact, Environment Clearance Certificate which was issued on 25.3.2015 was served to the petitioner through the Geologist/Assistant Geologist, Geology & Mining Division, Collector Office, Surat i.e. officer of the respondent no.3. Thus, respondent no.3 was aware about the issuance of the Environment Clearance Certificate in favour of the petitioner. It is submitted that respondent no.3 has not provided opportunity of hearing and therefore the petitioner could not point out the aforesaid aspect to the respondent no.3. It is, therefore, urged that the impugned order be set aside and the matter be remanded back to the respondent no.3 for deciding the issue afresh. At

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this stage, it is also submitted that now the new Rules of 2017 are enacted and as per the said Rules, the pending applications are to be decided on or before 17.5.2021 and therefore this Court may give appropriate direction to decide the application of the petitioner at the earliest.

5. On the other hand, learned AGP has opposed this petition and referred to the averments made in the affidavit-in-reply filed by the concerned respondent. It is submitted that there is no provision for giving opportunity of hearing to the petitioner/applicant at the time of deciding the application. It is also submitted that notice was issued to the petitioner on 11.12.2015, copy of which is placed on record at page 58. It is submitted that as per the said notice, petitioner was asked to supply resolution of Gram Sabha as well as Environment Clearance Certificate. Though the said notice was served to the petitioner, he has failed to produce the said documents before the respondent no.3 and therefore his application was rejected. Thus, no error is committed by respondent no.3 while rejecting the request of the petitioner. Learned AGP thereafter contended that against the impugned order passed by the Collector, the petitioner can file revision application before the competent authority and therefore this Court

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may not entertain this petition. It is also contended by learned AGP that the petitioner is not eligible for grant of quarry lease as per Rules of 2017.

6. Having heard learned advocates for the parties and having gone through the material placed on record, it has emerged that the petitioner has applied for grant of quarry lease on 13.9.2013. Prior to that, the petitioner converted the land from agricultural to non- agricultural purpose. Such permission was granted by the concerned competent authority, copy of which is placed on record at page 18 of the compilation. It is also revealed from the record that after the application was filed by the petitioner, competent authority issued Environment Clearance Certificate dated 25.3.2015 in favour of the petitioner, copy of the said certificate is placed on record at page 25. If the said certificate is carefully examined, it is clear that the same was served through the concerned officer of the respondent no.3 to the petitioner, copy of the same was also sent to various authorities. From the record, it is further clear that the impugned order was not served to the petitioner and therefore the petitioner filed application/representation dated 9.8.2018 to the Geologist, Surat and pointed out

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that the land in question is converted into non- agricultural land on 28.6.2013, Environment Clearance Certificate was issued in favour of the petitioner on 25.3.2015, mining plan is approved by the competent authority and as per the new Rules of 2017, he is eligible for grant of quarry lease. There is reference of resolution passed by the Gram Sabha and copy of the same was also supplied to the respondent. It was therefore requested by the petitioner that quarry lease be granted in his favour. Thereafter, the petitioner came to know about the impugned order dated 2.5.2016 passed by respondent no.3.

7. If the impugned order is carefully seen, it is further revealed that the application of the petitioner was rejected mainly on two grounds, firstly that the petitioner has not supplied the resolution of Gram Sabha and secondly, the petitioner has not supplied Environment Clearance Certificate, though notice was served to him on 11.12.2015. It is the specific case of the petitioner that before passing the said order, opportunity of hearing was not provided to the petitioner. At this stage, if notice dated 11.12.2015 issued by the respondent no.3 is carefully seen, it is further revealed that by way of said notice, the petitioner was asked to supply the resolution of

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Gram Sabha and Environment Clearance Certificate. It is the specific case of the petitioner that both the aforesaid documents were already with the concerned respondents and it is submitted that the impugned order was also not served to the petitioner. The petitioner has also produced, along with affidavit-in-rejoinder, copy of the resolution passed by Gram Sabha, copy of which is placed at page 70.

8. Thus, from the aforesaid facts, it is clear that the respondent no.3 has not provided opportunity of hearing to the petitioner and therefore the petitioner could not point out the aforesaid aspect before the respondent no.3 Collector.

9. In the facts and circumstances of the present case, this petition is partly allowed. The impugned order dated 2.5.2016 is set aside and matter is remanded back to the respondent no.3-Collector to decide the application of the petitioner afresh. It is open for the petitioner to produce the Environment Clearance Certificate, copy of resolution of Gram Sabha and copy of non- agricultural permission granted by the competent authority. After giving opportunity of hearing to the petitioner, the respondent no.3 shall pass a fresh order in accordance with law and keeping in

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view Rules of 2017. The respondent no.3 shall decide the application of the petitioner within a period of four weeks from the date of receipt of this order. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(VIPUL M. PANCHOLI, J) SRILATHA