Gujarat High Court

Jaysukhbhai Muljibhai Gorani vs State Of Gujarat on 7 December, 2022

Bench: Biren Vaishnav

     C/SCA/9405/2022                             JUDGMENT DATED: 07/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 9405 of 2022

                                  With
               R/SPECIAL CIVIL APPLICATION NO. 9596 of 2022

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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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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                       JAYSUKHBHAI MULJIBHAI GORANI
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR R.K.MANSURI(3205) for the Petitioner(s) No. 1
MS. DHWANI R. TRIPATHI, ASSISTANT GOVERNMENT PLEADER/PP for
the Respondent(s) No. 1
MR MAULIK G NANAVATI(3318) for the Respondent(s) No. 4
NOTICE SERVED for the Respondent(s) No. 2,3
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 07/12/2022
                             ORAL JUDGMENT

1 Rule returnable forthwith. Ms.Dhwani Tripathi,

learned Assistant Government Pleader, waives service of

C/SCA/9405/2022 JUDGMENT DATED: 07/12/2022

notice of rule on behalf of the respondent-State.

2 In both these petitions, the prayer of the petitioner

is to grant an order of Quarry Lease for Minerals in the

respective areas.

3 Order for grant of the quarry lease could not be

passed by the State as a result of non fulfillment of the

conditions in the Letter of Intent.

4 Learned counsel for the parties, relies on an order

dated 26.07.2022 passed by this Court in Special Civil

Application No.8911 of 2022. The order read thus:

"1. The issue raised in the present petition is likelihood of right of the petitioner to obtain quarry lease being jeopardized in the event of Government not making a written order for grant of quarry lease despite non-fulfillment by the petitioner of certain conditions mentioned in the Letter of Intent (LoI), particularly one relating to obtainment of Environment Clearance, on or before 24.05.2022 under the provisions the Gujarat Minor Mineral Concession Rules, 2017.

2. The Government of Gujarat, in exercise of the powers conferred by section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 (67 of 1957) and in suppression of all the rules made in this behalf, framed the Gujarat Minor Mineral Concession Rules, 2017. Rule 29 of the said Rules is

C/SCA/9405/2022 JUDGMENT DATED: 07/12/2022

relevant for adjudication of the issue involved in the present petition, and the same reads thus:

"29. Existing applications and right of holder of letter of intent.

(1) All applications for grant of a quarry lease received prior to the date of commencement of these rules shall become ineligible.

(2) Without prejudice to sub-rule (1), where the Government has communicated a prior written approval for grant of a quarry lease or if a letter of intent has been issued in writing by the Government to grant a quarry lease, before the commencement of these rules, the quarry lease shall be granted in accordance with the provisions of sub-rules (3) to (6) (inclusive):

(3) The Government shall issue an order in writing for grant of a quarry lease to the holder of a letter of intent upon satisfaction of the following conditions within a period of two years from the date of commencement of these rules, failing which the right of such an applicant for grant of a quarry lease shall be forfeited automatically and in such cases, the Government would not be required to issue any order for this purpose:

(a) fulfilment of the conditions of the prior approval or the letter of intent;

(b) the holder of letter of intent having obtained all consents, approvals, permits, no-objections and the like as may be required under applicable laws for commencement of mining operations;

(c) the holder of letter of intent having satisfied the conditions specified in Chapter VIII with respect to a mining plan (including the mine closure plan);

(d) furnishing financial assurance as specified in rule

64: Provided that upon receipt of a written application, stating reasons for non fulfilment of the

C/SCA/9405/2022 JUDGMENT DATED: 07/12/2022

conditions within a period of two years, the Government may, for reasons recorded in writing, extend the period of two years by an additional period of not more than six months: Provided further that, save for the right to receive a quarry lease pursuant to the prior approval or the letter of intent, these rules shall apply to quarry lease granted pursuant to the prior approval or the letter of intent.

(4) The order for grant of a quarry lease shall be in writing and shall inter alia also specify that the person in whose favour the order has been issued shall be required to furnish a performance security in accordance with such order in the form of a bank guarantee as per the format specified in Form A or a noninterest bearing security deposit.

(5) A quarry lease deed shall be executed in the format specified in Form B by the Government within thirty days of the date of completion of the conditions specified in sub-rule (4) and shall be subject to the provisions of the Act and the rules made thereunder.

(6) Any letters of intent granted pursuant to an auction process in the State shall continue to be governed by the tender documents relating to such auctions and a quarry lease deed shall be executed in the format specified in Form F by the Government within such period as specified in the grant order. The provisions of sub-rule (2) to (5) shall not apply to such letters of intent: Provided that save for the right to receive a quarry lease pursuant to the letter of intent, these rules shall apply to quarry lease granted pursuant to the letter of intent.

(7) The date on which a duly executed quarry lease deed is registered shall be the date of commencement of the quarry lease, and the holder of the letter of intent shall ensure that it achieves registration of the quarry lease deed within thirty

C/SCA/9405/2022 JUDGMENT DATED: 07/12/2022

days from the date of its execution."

Time of two years mentioned in sub-rule (3) for the Government to issue in writing an order granting quarry lease was initially extended to four years and by Notification dated 16.09.2021 extended to five years. A proposal to extend the time is pending consideration with the Government, but till date no final decision has been taken by the Government. Time limit of five years has expired on 24.05.2022. It was before this date of 24.05.2022 that written order granting lease had to be made by the Government on fulfillment of conditions mentioned in the LoI, failing which the right of the LoI holder to get a quarry lease would stand automatically forfeited.

3. In the facts of the present case, the petitioner has complied with all conditions of LoI, except obtaining Environment Clearance. It is the say of the petitioner that an application has already been made for obtaining the clearance, but for the reasons beyond his control the authority has not yet granted the Environment Clearance. The petitioner, believing that he will not receive the Environment Clearance on or before 24.05.2022 and apprehending that in absence of a formal order granting quarry lease being passed by the Government before the said date he shall lose his right to get the quarry lease, approached this Court by filing the present petition.

4. This Court, after hearing the parties and considering the peculiar facts of the case, passed an interim order on 06.05.2022 issuing certain directions. Paragraph No.4 of the order containing the directions issued by the Court reads thus:

"4. Having heard the learned counsel appearing for the respective parties, it is hereby directed that:

C/SCA/9405/2022 JUDGMENT DATED: 07/12/2022

(I) The writ-applicant shall file an undertaking before the respondent- Collector within a period of two weeks 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 State Government shall issue a formal order granting quarry lease within a period of 02 weeks from today and the District Collector shall thereafter execute the lease deed within a period of 02 weeks on filing of undertaking. The entire exercise of issuance of formal order granting lease and the execution of lease deed is directed to be completed on or before 23.05.2022;

(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. Learned advocate appearing for the petitioner 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 placed a communication dated 05.07.2022 received from the Geologist, Kachchh for perusal of the Court, which is ordered to be taken on record of the petition. The said communication mentions that formal order has been passed granting quarry lease. As regards execution of lease deed, the

C/SCA/9405/2022 JUDGMENT DATED: 07/12/2022

communication states that the petitioner has not deposited the requisite stamp duty and Performance Bank Guarantee.

7. At this stage, the learned Advocate for the petitioner submits that the petitioner shall deposit the requisite stamp duty, as may be indicated by the authority within a period of 04 (four) weeks.

8. Having heard the learned advocates appearing for the respective parties and perused the record of the case. It appears that the primary grievance of the petitioner that his right to get a quarry lease shall stand forfeited if an order granting such quarry lease is not made by the Government on or before 24.05.2022 stood redressed by the interim directions issued by this Court on 06.05.2022. This Court specifically directed the Government to make a written order granting quarry lease on or before 24.05.2022. In terms of the said order, a written order granting quarry lease has been made in favour of the petitioner by the Government. To this extent, the interim order has become final. Now only a consequential administrative act of executing a formal lease deed for handing over the leased Government land to the petitioner remains pending. Certain formalities need to be completed at the end of the petitioner, which as recorded hereinabove the petitioner has assured to complete within a period of 04 weeks. Thereupon, the District Collector shall execute a formal lease deed in favour of the petitioner within a period of 04 (four) weeks.

9. A request has been made for issuance of appropriate directions to the State Environment Impact Assessment Authority to consider the application for grant of Environment Clearance. Learned advocate appearing for the authority has submitted that the petitioner has to place documents before the authority showing compliance of the Terms of Reference, which has not yet been

C/SCA/9405/2022 JUDGMENT DATED: 07/12/2022

done. He has however assured that on submission of all the requisite documents by the petitioner the application for grant of Environment Clearance shall be considered expeditiously by the authority. Needless to state, the authority shall consider and decide the application of the petitioner for grant of the Environment Clearance on submission of all the necessary documents by the petitioner before it without any undue delay.

10. No other issue survives for adjudication in the petition.

11. With the aforesaid observations, the petition is disposed of with no order as to costs."

5 Pending the petition, the petitioners in both the

petitions has been granted Environmental Clearance

Certificate. Furthermore, pending the petitions, the State

Government has come out with a notification amending

the 2017 rules, more particularly Rule 29. The cut off

date which was expiring on 23.05.2022 now stands

extended by virtue of such amendment. Learned advocate

for the petitioners has fairly submitted that the grievance

of his clients would be redressed if a direction is given to

the respondent authorities to pass a formal order