Shri Swami Stone Quarry Through ... vs State Of Gujarat
2021 Latest Caselaw 4767 Guj

         C/SCA/16186/2020                                        JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 16186 of 2020


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
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1   Whether Reporters of Local Papers may be allowed to No
    see the judgment ?

2     To be referred to the Reporter or not ?                              No

3     Whether their Lordships wish to see the fair copy of the             No
      judgment ?

4     Whether this case involves a substantial question of law             No
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

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     SHRI SWAMI STONE QUARRY THROUGH ONE OF THE PARTNERS
                     DIPAK DINESH AGRAWAL
                              Versus
                   STATE OF GUJARAT & 2 other(s)
==========================================================
Appearance:
MS. KRUTI M SHAH(2428) for the Petitioner
MR RONAK RAVAL, AGP for the Respondents
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 CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
                         Date : 26/03/2021
                        ORAL JUDGMENT

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

"(a) admit and allow this petition;

(b) issue appropriate writ, order or direction for quashing and setting aside the communication dated 21.05.2020 issued by Geologist to the

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extend of not permitting the petitioner to do any new further mining activities over the lease of black trap situated at Survey No.171, Block No.148/2 admeasuring H­02.00.000 at village: Chorwad, Taluka: Songadh, District: Tapi;

      (c) Pending    admission,    final    hearing   and
      disposal    of    this     petition,    stay    the
      communication    dated    21.05.2020    issued   by

Geologist to the extend of not permitting the petitioner to do any new further mining activities and further be pleased to direct respondent No.3 to permit the petitioner to do mining activities over the lease situated at Survey No.171, Block No.148/2 admeasuring H­ 02.00.000 at village: Chorwad, Taluka: Songadh, District: Tapi;

(d) Grant such other and further reliefs as thought fit in the interest of justice;"

2. Looking to the issue involved in the present petition, learned advocates appearing for the parties jointly requested that this petition be disposed of at admission stage. Hence, Rule. Learned Assistant Government Pleader waives service of notice of Rule for the respondents.

3. Heard learned advocate Ms.Kruti M. Shah for the petitioner and learned Assistant Government Pleader Mr.Ronak Raval for the respondents.

4. Learned advocate Ms.Kruti M. Shah appearing for the petitioner submitted that the petitioner was granted lease of black trap situated at Survey No.171, Block No.148/2 admeasuring H­02.00.00 at Village Chorwad, Taluka Songadh, District Tapi, for a period of 20 years from 01.03.2010. The Agreement was

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accordingly executed between the parties. It is submitted that the FIR being C.R. No.1184004200169 of 2020 was registered at Songadh Police Station, District Tapi on 06.04.2020 for the alleged offences punishable under Sections 279 and 304A of the Indian Penal Code and under Sections 177 and 184 of the Motor Vehicles Act. The said FIR was lodged by one Govindbhai Jamabhai Gamit against one Nileshbhai Jamabhai Gamit. It is mainly stated that the driver of truck bearing registration No.GJ­05­AT­2003 i.e. Nilesh Jamabhai Gamit had loaded sand in the truck and at the time of reaching at quarry, he has driven the vehicle in negligent manner and, therefore, control of the truck was lost by the driver and in the said accident, brother of the complainant who was present at the place of incident received injuries and, thereafter, died.

4.1 It is submitted that respondent has alleged that during the lockdown period, the mining activity was continued by the petitioner at the quarry lease of the petitioner and one person died in the aforesaid incident dated 06.04.2020 and on the basis of the said incident, a notice dated 16.04.2020 came to be issued by respondent No.3 to the petitioner calling upon him to show cause as to why his lease shall not be cancelled. It is submitted that the petitioner submitted reply on 21.04.2020 and pointed out the correct facts. Thereafter, the written representation was made on 19.05.2020 before the respondent authority, in which, it was pointed out that the

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petitioner is ready to pay the compensation, if any order is passed by the competent Tribunal. It is further submitted that respondent No.3 issued the impugned communication dated 21.05.2020 whereby the petitioner is asked to stop the mining activity. It is also pointed out that the petitioner submitted an on­line application on 26.04.2020 to start his lease. However, no response was given by the respondent authority. The petitioner was orally asked to deposit Rs.10 lakhs by way of compensation. However, it was pointed out by the petitioner that there is no provision under the Mines and Minerals Act and the Rules framed thereunder to pay such compensation. The petitioner has, therefore, filed the present petition.

4.2 Learned advocate for the petitioner has referred the Agreement entered into between the petitioner and the legal heirs of the deceased, which was executed on 18.03.2021, a copy of which is placed on record during the course of hearing. It is submitted that the petitioner has paid Rs.4 lakhs by way of lumpsum compensation to the legal heirs of the deceased, though no proceedings are filed by the legal heirs of the deceased in any Court/Tribunal. Learned advocate for the petitioner thereafter pointed out that as per Clause­18 of the Agreement entered into with respondents authorities, the petitioner is ready and willing to compensate the respondent State, if any claim is made by the legal heirs of the deceased against the present respondents. It is, therefore,

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urged that the relief prayed for in the present petition be granted.

5. On the other hand, learned Assistant Government Pleader Mr.Ronak Raval appearing for the respondents opposed this petition and referred Clause­18 of the Agreement and, thereafter contended that the petitioner is liable to compensate the respondent State, in case any claim is made by the legal heirs of the deceased against the present respondents. It is further submitted that no error is committed by respondent No.3 Geologist while issuing the impugned communication dated 21.05.2020 and, therefore, this petition may not be entertained.

6. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it has emerged that because of the incident, which had taken place on 06.04.2020 at the quarry lease of the petitioner in question, respondent No.3 issued the impugned communication dated 21.05.2020 whereby the petitioner is asked to stop the mining activity as per Clause­17 of the Lease Agreement. At this stage, it is required to be noted that, it is wrongly typed as Clause­17 of the Agreement. Relevant clause is Clause­18. At this stage, this Court would like to refer Clause­18 of the Lease Agreement, a copy of which is placed on record at Page­27 of the compilation. It provides that because of the loss caused to the third party, if the Government is required to pay compensation to

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the third party, the petitioner has to compensate the Government. In the present case, it is required to be noted that till date, no proceedings are filed by the legal heirs of the deceased against the Government or the petitioner. In spite of that, the petitioner has paid an amount of Rs.4 lakhs to the legal heirs of the deceased and Agreement is executed between the parties on 18.03.2021. Thus, till today, the respondents have not paid any amount of compensation to the third party including the legal heirs of the deceased, who died in an unfortunate accident, which has taken place on 06.04.2020 at the place in question. It is a specific case of the petitioner that the petitioner is ready and willing to compensate the respondents, if any claim is made by the legal heirs of the deceased against the respondents in any Court/Tribunal in future. Thus, the fact remains that till today, no proceedings are initiated by the legal heirs of the deceased against the respondents and, therefore, respondent No.3 Geologist is not right in directing the present petitioner to stop the mining activity.

7. In view of the aforesaid, the impugned communication dated 21.05.2020 is set aside to the aforesaid extent. Respondent No.3 is directed to permit the petitioner to start its mining activity at the quarry lease in question. The petitioner shall file an Undertaking before respondent No.3 Geologist that it is ready and willing to compensate the Government as per Clause­18 of the Agreement, if any

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claim is made by the legal heirs of the deceased against the respondents in future.

8. The petition is allowed to the aforesaid extent. Rule is made absolute accordingly.

Direct Service is permitted.

(VIPUL M. PANCHOLI, J) piyush