Gujarat High Court
Jigishaben Sanjaybhai Dalwadi vs State Of Gujarat on 3 October, 2022
Bench: Nirzar S. Desai
C/SCA/16418/2022 ORDER DATED: 03/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16418 of 2022
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JIGISHABEN SANJAYBHAI DALWADI
Versus
STATE OF GUJARAT
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Appearance:
MR PATHIK M ACHARYA(3520) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 03/10/2022
ORAL ORDER
1. Learned advocate for the petitioner seeks permission
to amend the prayer clause. Permission is granted.
2.1 By way of this petition under Article 226 of the
Constitution of India, the petitioner has prayed for
quashing and setting aside the order dated 01.07.2019
passed by the Collector, Tapi rejecting the allotment of
quarry lease to the petitioner.
2.2 The petitioner has further challenged the order
dated 30.03.2021 passed by the Appellate Authority in
Revision Application No.R/867 / Tapi so also the order
dated 31.05.2022 passed by the Member Secretary
C/SCA/16418/2022 ORDER DATED: 03/10/2022
(Review Committee) and Deputy Secretary, Industries
and Mines Department, State of Gujarat confirming the
order dated 30.03.2022 passed in Appeal.
3.1 It is the case of the petitioner that the petitioner
applied grant of quarry lease for black trap from land
bearing Survey No.160 / 2 paiki, admeasuring 10-00-00
Hec.Are.Sq mtr situated at Village Amli, TalSongadh,
Dist.Tapi. The said application was made on
23.10.2008.
3.2 Vide order dated 31.03.2011, the Collector, Tapi
rejected the aforesaid application of the petitioner for
grant of quarry lease and hence the petitioner
preferred Revision Application before the Deputy
Secretary (Appeals), Industries and Mines Department,
which was allowed vide order dated 19.11.2016 by the
Revisional Authority and the same was remanded back
to the Collector with a direction to decide the
application of the petitioner within 45 days.
3.2 Though no order was passed within period of 45
days, the petitioner preferred Special Civil Application
C/SCA/16418/2022 ORDER DATED: 03/10/2022
No.6763 of 2017 seeking direction to the Collector,
Tapi to comply with the order passed on 19.11.2016
by the Revisional Authority. The said writ petition is
disposed of vide order dated 03.05.2017 with a
direction to Collector to decide the case of the
petitioner as expeditiously as possible but not later
than 31.07.2017.
3.3 Since despite the direction issued by this Court,
the application of the petitioner remained undecided,
the petitioner preferred second petition being Special
Civil Application No.18402 of 2018 and the said
petition was also disposed of vide order dated
25.02.2019 with a direction to decide the application
of the petitioner within a period of four weeks.
3.4 Ultimately, the Collector, Tapi decided the
application of the petitioner vide order dated
01.07.2019 by taking into consideration the fact that
the land for which the petitioner applied for quarry
lease was Gauchar land and, therefore, the same
cannot be granted to the present petitioner for the
purpose of quarry lease.
C/SCA/16418/2022 ORDER DATED: 03/10/2022
3.5 The petitioner challenged the aforesaid order
dated 01.07.2019 by way of an appeal before the
Appellate Authority, however, the Appellate Authority
and Deputy Secretary (Industries) vide order dated
30.03.2021 confirmed the said order which was once
again challenged before the Review Committee by the
petitioner and even Review Committee also rejected the
review application of the petitioner vide order dated
31.05.2022 and confirmed the order dated 30.03.2021
passed by the Appellate Authority.
4.1 Learned advocate Mr.Pathik Acharya for the
petitioner vehemently submitted that the application of
the petitioner made in the year 2008 has remained
undecided till date as in the year 2016 when the
Revisional Authority remanded the matter back to the
Collector and directed him to decide the application of
the petitioner within a period of 45 days, the Collector
did not decide the matter within 45 days. The matter
remained pending before the Collector and in the
meantime the Rules governing the allotment of quarry
lease were changed. Earlier Mines and Mineral
C/SCA/16418/2022 ORDER DATED: 03/10/2022
(Concession) Rules 2010 ('2010, Rules', for short) were
in force whereas from 24.05.2017 new rules i.e. Mines
and Mineral (Concession) Rules 2017 ('2017, Rules', for
short) came into force.
4.2 However, it is the case of Mr.Acharya that the
application of the petitioner was required to be
considered as per '2010, Rules' and not as per '2017,
Rules' considering the fact that application was made
by the petitioner in the year 2008.
4.3 It is the case of learned advocate Mr.Acharya
before this Court that at the time when the petitioner
applied for allotment of quarry lease in respect of
adjacent land, which is also Gauchar land, some other
person was granted quarry lease despite the land being
Gauchar land and therefore also respondents were not
justified in rejecting the application of the present
petitioner which was rejected by Collector, Tapi and
confirmed by the Appellate and Revisional Authorities.
4.4 Except these submissions, no other submissions
were made by learned advocate Mr.Pathik Acharya,
C/SCA/16418/2022 ORDER DATED: 03/10/2022
nor any reliance was placed upon any of order /
decision / judgment of this Court or of the Hon'ble
Supreme Court.
5.1 Learned Assistant Government Pleader Mr.Hardik
Mehta vehemently opposed the petition and submitted
that even after the year 2016, when the petitioner
preferred petition in the year 2017 and 2018, in the
year 2018, the Rules had already changed and even
the date on which the Court issued direction to decide
the application of the petitioner i.e. 25.02.2019 while
deciding the Special Civil Application No.18402 of
2018, there are no specific directions to consider the
case of the petitioner in light of '2010 Rules'.
5.2 Learned Assistant Government Pleader submitted
that, in absence of there being any direction to
consider the case of the petitioner in light of '2010,
Rules', the petitioner's case was considered by
Collector, Tapi in view of '2017, Rules' and ultimately
it was found by the Collector, Tapi that the land for
which the petitioner applied was 'Gauchar' land and,
therefore, in view of decision of Honourable Supreme
C/SCA/16418/2022 ORDER DATED: 03/10/2022
Court passed in Civil Appeal No.5135 of 2021 [arising
out of SLP (Civil) No.14222 of 2019] dated 06.09.2021,
when the Hon'ble Supreme Court categorically
observed that Gauchar land can be used only for the
purpose for which it is permitted to be used and
considering the fact that Gauchar land is grazing land.
5.3 While pointing out aforesaid submissions, learned
Assistant Government Pleader also submitted that even
if the application of the petitioner was of the year
2008, considering the fact that the land for which the
application was made by the petitioner was Gauchar
land, even if case of the petitioner is considered as per
old Rules, in that case also, on Gauchar land
permission for grant of quarry lease cannot be given
and, therefore, considering the aforesaid fact present
petition is required to be dismissed.
6.1 I have considered the submissions made by
learned advocate Mr.Pathik Acharya and learned
Assistant Government Pleader Mr.Mehta. I have also
perused the record and considered the decision of
Hon'ble the Supreme Court in the case of Civil Appeal
C/SCA/16418/2022 ORDER DATED: 03/10/2022
No.5135 of 2021 in the case of Rameshbhai Virabhai
Chaudhari vs. The State of Gujarat and others.
6.2 I have considered the fact that the application of
the petitioner was allowed by the Revisional Authority
and the matter was remanded back to the Collector for
taking a decision afresh within 45 days. I have also
considered the fact that the Collector could not decide
the application of the petitioner within 45 days and
ultimately that application remained undecided till
01.07.2019 during which the petitioner had to move
this Court twice by way of filing Special Civil
Application No.6763 of 2017 and Special Civil
Application No.18402 of 2018 and had to seek
directions to the Collector to decide the application of
the petitioner within some time bound schedule. I have
considered the fact that while giving direction to the
Collector, Tapi, this Court, vide order dated
25.02.2019, directed the Collector to decide the
application of the petitioner within a period of 45 days
from the receipt of the copy of the order. However,
the Court did not say that case of the petitioner is
C/SCA/16418/2022 ORDER DATED: 03/10/2022
required to be considered as 'saved cases' and it is
required to be decided as per '2010, Rules'.
6.3 The Collector proceeded to decide the application
of the petitioner and decided it against the petitioner
by rejecting the same on the ground that the land for
which an application was made is Gauchar land and
the same was not decided and was not rejected by the
Collector, Tapi on the ground that in view of new
Rules i.e. 'Rules, 2017' the application of the
petitioner cannot be considered.
6.4 The aforesaid fact would indicate that the land
for which an application was made by the petitioner
was Gauchar land even in the year 2008 and the same
remained Gauchar land even after the year 2017.
Therefore, even if the case of the petitioner was
considered as per '2010 Rules' by treating the case of
the petitioner as 'saved cases', then also land for
which application was made by the petitioner for
quarry lease was a 'Gauchar' land and, therefore, the
said land could not be given to petitioner in any case.
C/SCA/16418/2022 ORDER DATED: 03/10/2022
6.5 Considering the aforesaid as also considering the
application of the petitioner has been rejected by
Collector, Tapi on the ground that aforesaid land is
'Gauchar' land and aforesaid order has been confirmed
by Appellate Authority vide order dated 30.03.2021,
which is confirmed by the Review Committee vide
order dated 31.05.2022, I do not see any illegality
committed by the authorities and, therefore, present
petition is required to be dismissed and the same is
dismissed. Notice is discharged. No order as to costs.
Direct service is permitted.
(NIRZAR S. DESAI,J)
MISHRA AMIT V.
