Gujarat High Court
Dcc Infra Projects Ltd. Through ... vs State Of Gujarat on 22 December, 2022
Bench: Biren Vaishnav
C/SCA/21125/2022 JUDGMENT DATED: 22/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21125 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 ?
==========================================================
DCC INFRA PROJECTS LTD. THROUGH JAI PRAKASH S/O RAM NATH
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MS. KRUTI M SHAH(2428) for the Petitioner(s) No. 1
MS. DHWANI R. TRIPATHI, ASSISTANT GOVERNMENT PLEADER/PP for
the Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 22/12/2022
ORAL JUDGMENT
1 Rule returnable forthwith. Ms. Dhwani Tripathi,
learned AGP, waives service of notice of rule on behalf of
C/SCA/21125/2022 JUDGMENT DATED: 22/12/2022
the respondent - State. With consent of the learned
advocates, the matter is taken up for final hearing.
2 Challenge in this petition under Article 226 of the
Constitution of India is to the order dated 05.09.2022
passed by the Geologist, Geology & Mining Department,
Bharuch.
3 Facts in brief would indicate that one M/s.Sadbhav
Kim Express Pvt. Ltd had entered into an M.O.U with
M/s. Gawar Construction Ltd., for carrying out
engineering procurement and construction contract for
the Vadodara-Kim Expressway. In turn, M/s. Gawar
Construction Ltd., had issued a Letter of Intent to the
petitioner for the work of construction of the highway.
The petitioner had appointed one Nakora Constitution Pvt
Ltd., who had approached the village inhabitants so as to
be able to use the sand from private lands for
construction of the national highway.
C/SCA/21125/2022 JUDGMENT DATED: 22/12/2022
3.1 It is the case of the petitioners that the sand was
never used. Based on a complaint received from one
Akbarsha Gulabsha Fakir, the department issued a notice
on 15.07.2022 alleging that the petitioner had carried out
illegal mining from private lands. The petitioner
responded to the notice of 03.08.2022.
4 Ms. Kruti Shah, learned counsel for the petitioner,
would submit that despite a reply being filed to the
notice, which was issued on 15.07.2022, on 03.08.2022,
the impugned order of penalty, when read indicates that
it has been based on a finding that the petitioner had not
filed any reply to the notice. She would rely on an order
passed by this Court in Special Civil Application No. 5597
of 2021.
5 Considering the submissions made by the learned
counsels for the respective parties, apparently, the order
of penalty is based on an erroneous finding of fact to the
show cause notice. A reply was filed on 03.08.2022 which
C/SCA/21125/2022 JUDGMENT DATED: 22/12/2022
was received by the authorities as pointed out by the
learned counsel for the petitioner through the inward
stamp of the department.
6 In light of this, the order dated 05.09.2022 is
quashed and set aside. The authorities are directed to
consider the reply filed by the petitioner on 03.08.2022
and any further representation that may be made by the
petitioner within a period of two weeks from today. On
such response being made by the petitioner, it will be
open for the respondents to pass a fresh order in
accordance with law. The petition is partly allowed
accordingly. Rule is made absolute to the aforesaid
extent.
(BIREN VAISHNAV, J)
BIMAL
