Gujarat High Court

Iqbal Mungarbhai Noyda vs State Of Gujarat on 8 December, 2022

Bench: Biren Vaishnav

     C/SCA/9340/2022                                  JUDGMENT DATED: 08/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 9340 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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                            IQBAL MUNGARBHAI NOYDA
                                     Versus
                           STATE OF GUJARAT & 2 other(s)
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Appearance:
MS. MANVI DAMLE, ADVOCATE FOR MS AYUSHRI M THAKKAR(10775)
for the Petitioner(s) No. 1
MS. ROSHNI PATEL, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3
MR MAULIK G NANAVATI(3318) for the Respondent(s) No. 4
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                 Date : 08/12/2022

                                 ORAL JUDGMENT

1 Rule returnable forthwith. Learned advocates

appearing for the respective respondents waives service

C/SCA/9340/2022 JUDGMENT DATED: 08/12/2022

of notice of rule.

2 On 05.05.2022, the Co-ordinate Bench of this Court,

passed the following order:

1. Heard Ms. Ayushri M. Thakkar, learned counsel appearing for the writ-applicant, Mr. Ishan Joshi, learned Assistant Government Pleader appearing for the respondent Nos. 1 to 3 - State authorities. Mr. Maulik Nanavati, learned counsel, who usually appears for State Environment Impact Assessment Authority - respondent no.4 is directed to appear on advance copy by the Court. Mr. Nanavati, learned counsel has accordingly appeared on behalf of the respondent no.4.

2. Ms. Ayushri M. Thakkar, learned counsel appearing for the writ-applicant submitted that Letter of Intent has been issued in favour of the writ-applicant, and that the writapplicant has complied with almost all the conditions mentioned in the Letter of Intent. Ms. Thakkar, learned counsel further submitted that the writ-applicant has applied for grant of Environment Clearance by making an appropriate application to the State Environment Impact Assessment Authority. However, the final clearance certificate has not been issued or granted by the Authority. Ms. Thakkar, learned counsel has further invited attention of the Court to order dated 25.11.2021 passed by the District Collector, Jamnagar, suo-motu canceling the Letter of Intent.

Ms. Thakkar, learned counsel has submitted that the District Collector once having issued Letter of Intent, pursuant to the order passed by the Revisional Authority does not have power, either under the Act or the Rules or otherwise to review / recall the said order. Therefore, the order dated

C/SCA/9340/2022 JUDGMENT DATED: 08/12/2022

25.11.2021 canceling the Letter of Intent is without jurisdiction. Ms. Thakkar, learned counsel has argued that, even otherwise the said order has been passed without issuance of notice of the writ- applicant and grant of any opportunity of hearing, thereby, violative of the principles of natural justice. Ms. Thakkar, learned counsel further contended that in the event, the formal order of quarry lease is not made by the Government and a lease deed is not executed by the District Collector on or before 24.05.2022, the right of lease in favour of the writ- applicant would stand forfeited.

3. Ms. Thakkar, learned counsel relied on the order passed by the coordinate bench of this Court in Special Civil Application No. 7 of 2017 and Special Civil Application No. 6602 of 2021 with allied matters.

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

(I) The writ-applicant shall file an undertaking before the respondent- Collector within a period of 10 days 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 order dated 25.11.2021 passed by the respondent - District Collector shall remain stayed, pending the present writ-application.

The State Government shall issue a formal order granting quarry lease within a period of 10 days from today and the District Collector shall thereafter execute the lease deed within a period of 10 days on filing of undertaking. The entire exercise of issuance of formal order granting lease and the execution of lease deed

C/SCA/9340/2022 JUDGMENT DATED: 08/12/2022

is directed to be completed on or before 24.05.2022. The issuance of formal order granting quarry lease and execution of sale deed, shall be subject to the final outcome of the present petition;

(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. Matter to be listed for further hearing on 05.07.2022. Direct service is permitted."

3 Ms. Manvi Damle, learned counsel appearing on

behalf of Ms.Ayushri Thakkar, learned counsel for the

petitioner, submits that as contained in the order dated

05.05.2022, the petitioner has filed an undertaking with

the concerned authority. She further submits that the

respondent authorities have not complied with the other

directions contained in the said order. She has further

invited the Court's attention to the order dated

29.09.2022, wherein it has been recorded as under:

"Mr.Sahil Trivedi, learned Assistant Government Pleader, upon telephonic instructions from Mr.Abhijeet Chobey, Law Officer, Commissioner of Geology & Mining, states that the order dated 5.5.2022 passed by Co-ordinate Bench of this Court

C/SCA/9340/2022 JUDGMENT DATED: 08/12/2022

shall be complied with within a period of two weeks from today in the same manner as other interim orders passed by co-ordinate benches have been complied with.

In view of the above, stand over to 14.10.2022."

4 Even today, it is contended that the interim order

dated 05.05.2022 and the assurance as reflected in the

order dated 29.09.2022 are not fully complied with by the

respondent authorities.

5 Mr.Maulik Nanavati, learned counsel, has invited the

attention of the Court to an order passed by a co-ordinate

Bench of this Court in Special Civil Application No. 9346

of 2022 dated 26.07.2022, wherein, the respondent

authorities despite issuance of interim directions by this

Court had chosen not to comply with such directions. He

has drawn attention of the Court to relevant paragraphs,

which read as under:

"5. Learned Advocate appearing for the petitioner has submitted that the directions issued by this Court on 10.05.2022 have till date not been complied with by the authorities in as much as no order has been passed by the Government granting quarry lease and no lease deed has been executed.

Learned Advocate has submitted that the petitioner has filed an undertaking in terms of the order of this

C/SCA/9340/2022 JUDGMENT DATED: 08/12/2022

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 submitted on instructions that the interim directions issued by this Court on 10.05.2022 could not be complied with as a copy of petition filed by the petitioner was not served upon the authority. He has further submitted, on instructions, that the petitioner has not deposited the requisite stamp duty and not furnished the performance bank guarantee for execution of lease deed.

7. At this stage, learned Advocate for the petitioner submits that his client shall deposit the requisite stamp duty and furnish the bank guarantee for the amount as may be indicated by the authority within a period of 04 weeks.

8. Heard learned Advocates appearing for the respective parties and perused the record of the case. The Court does not find the explanation offered by the respondent authorities for not complying with the directions of the Court to be acceptable. Non-supply of the petition filed before the Court by the petitioner to the respondent authorities cannot and should not have been the reason for not abiding with the interim directions of this Court, particularly when notice on the petition has been waived by the learned Assistant Government Pleader and the directions have been passed by the Court after hearing the learned Assistant Government Pleader appearing for the respective authorities. The disobedience by the respondent authorities of the directives issued by the Court is deprecated and the authorities are cautioned to ensure strict compliance of orders passed by the Court."

C/SCA/9340/2022 JUDGMENT DATED: 08/12/2022

6 In view of the above, the respondent authorities are

directed to pass a formal order granting quarry lease if

not already passed, and thereafter, execute a lease deed

in favour of the petitioner within a period of eight weeks

from the date of receipt of copy of this order.

It is reported that the Environmental Clearance

Certificate has not yet been granted to the petitioner, and

therefore, the petitioner shall continue to abide by the

undertaking given by the petitioner to the effect that the

petitioner shall not undertake any mining activity till the

time the Environmental Clearance Certificate is obtained