Rastullakhan Phirkhan Pathan vs State Of Gujarat
2023 Latest Caselaw 611 Guj

     C/SCA/19157/2022                              ORDER DATED: 20/01/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 19157 of 2022

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                        RASTULLAKHAN PHIRKHAN PATHAN

                                    Versus

                         STATE OF GUJARAT & 3 other(s)
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Appearance:
MS SHIVANI RAJPUROHIT(5377) for the Petitioner(s) No. 1

MR NIRAJ SHARMA, AGP for the Respondent - State
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 CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI

                               Date : 20/01/2023

                                 ORAL ORDER

1. Draft amendment to correct the date in prayer clause is granted. The same shall be carried out forthwith.

2. The present petition is filed under Article 226 of the Constitution of India for seeking following reliefs:-

(A) Quash and set aside the impugned order dated 22.09.2011, passed by the Collector, Palanpur - Banaskantha rejecting the application seeking issuance of Letter of Intent, the subsequent order dated 06.05.2019, passed by the Appellate Authority under the guise of Rule 4(1) of the Gujarat Minor Mineral Concessions Rules, 2017 having come into force from 24.05.2017.

(B) Direct the respondents to treat the case of the petitioner as 'saved cases' and reconsider the application preferred by the petitioner afresh in

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accordance with the present rules and regulation of Gujarat Minor Minerals Concession Rules, 2017, within a reasonable time limit as may be found appropriate by this Honourable Court;

(C) This Hon'ble Court may be pleased to grant such other and further reliefs as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted.

3. The case of the petitioner is that the petitioner applied for seeking a lease of building stone at Moje: Jasvantgadh, Taluka Danta, District Banaskantha on a land bearing Survey No. 140/1 paiki 3-00-00 for a period of 10 years and for that an application was made on 29.12.2010. The authority has rejected the said request vide order dated 22.09.2011. Since, the clarification which was sought for by the authority had not been provided by the petitioner.

4. Feeling aggrieved by the said decision, the petitioner approached the Appellate Authority before Department of Industries and Mines (Appeals) by way of Appeal No. Revision/102011/3442/R.48/Appeal/Banaskantha, wherein the appellate authority was pleased to allow the appeal by setting aside the order of the Collector and remanded the matter back for fresh consideration within a period of 45 days. Substantially, since the hearing was not provided the authority had remanded back the matter to the competent authority.

5. It is the case of the petitioner that after passing of such order on 28.10.2015, the petitioner was called on the spot for verification on 20.11.2015 vide communication dated

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09.11.2015 and dispite such spot verification which had been already undertaken with a view of apply dilatery tactics an opinion of Forest Department was also called for which according to the petitioner was not required. The Forest Department has also opined in favour of the petitioner vide communication dated 02.08.2016 but somehow dispite every material having been available before the authority the proceedings were kept pending and not decide within a period of 45 days. On account of such pendency for a pretty long period, by the passage of time the Rules have been amended in the year 2017 which are applicable and then relying upon the said circumstances finally a decision came to be taken on 06.05.2019 rejecting the lease application of the petitioner. The grievance of the petitioner is that on account of inaction on the part of the respondent authority in taking decision for a pretty long period the amendment has come into effect and thereby the application came to be rejected and as such the petitioner has approached this Court by way of present petition under Article 226 of the Constitution of India.

6. The learned advocate Ms. Shivani Rajpurohit appearing on behalf of the petitioner has vehemently contended that had the opportunity been given and had the prompt decision taken by the authority, within a period of 45 days, such eventuality of amendment of Rules in between would not have taken place and this delay has prejudiciously affected the rights of the petitioner and as such the decision delivered by the authority deserves to be quashed on this ground alone.

6.1 It has been further submitted that in an identical situation

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the co-ordinate bench has already considered at length such kind of eventuality in Special Civil Application No. 16109 of 2019 and by judgment and order dated 20.04.2022 the authorities were suitably directed to take decision keeping in view the original application and the prevailing policy and as such the authority ought not have discarded the claim of the petitioner. It has been canvased by the learned counsel that in such a situation when pending decision the amendment has taken then the Department has sought a clarification from the Industries and Mines Department and relying upon the clarification which has been issued vide circular dated 18.12.2018, the learned advocate has submitted that the case of the petitioner could have been treated as 'saved case' and on the basis of prevailing policy prior to amendment decision ought to have been taken, that having not been done the order deserves to be quashed on that count alone.

6.2 The learned advocate Ms. Shivani Rajpurohit has further submitted that in an identical situation in respect of aforesaid petition i.e. Special Civil Application No. 16109 of 2019, it has come to the knowledge of the petitioner that some favourable order has been passed in respect of such petitioner and as such the authority may re-consider the entire circumstance in view of this situation which has already been dealt with by the co-ordinate bench of this Court and as such has requested that appropriate direction be given to the authority to take suitable decision by re-considering the request of the petitioner and thereby requested to set aside the impugned order dated 06.05.2019. No other submissions have been made.

C/SCA/19157/2022 ORDER DATED: 20/01/2023

7. As against this the learned Assistant Government Pleader Mr. Niraj Sharma appearing on behalf of the authority has submitted that it may be that there might have some delay but when the decision is taken the same is taken on the basis of the amendment of Rules of 2017, the authority was under an obligation to give effect to such amendment and as such has supported the decision taken by the authority. It is further submitted by the learned AGP that the case of the petitioner cannot be considered as a 'saved case' in view of the fact that for a pretty long period even the petitioner had not processed the application any further. However, the request of re- consideration made by the petitioner has not been stoutly resisted and as such has left it to the discretion of the Court for passing suitable order in the interest of justice.

7.1 It has further been emphatically submitted by the learned AGP that the Letter of Intent (LOI) in this case has not been issued at all and as such even in view of the clarificatory circular as mentioned above, the case cannot be considered as a 'saved case' but since the request for re-consideration has been made, the learned AGP has left it to the discretion of this Court to pass suitable order in the interest of justice.

8. Having heard learned advocates appearing for the parties and having gone through the relevant records placed before this Court, it appears that the query lease application was already submitted on 29.12.2010 and the same came to be rejected on 22.09.2011 and subsequently the appellate authority undisputedly remanded back the matter to Collector for taking fresh decision within a period of 45 days by order

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dated 28.10.2015. It is also not in dispute that a fresh decision had not been taken not only within a period of 45 days but beyond the period of 4 years and final decision is taken only on 06.05.2019, by that time the Rules of 2017 had already come into effect and as such it appears that there is some laxity on the part of the authority in taking decision which has resulted into such a situation.

9. The Court has taken note of such kind of situation which has been dealt with by co-ordinate bench of this Court in a decision dated 20.04.2022 passed in Special Civil Application No. 16109 of 2019 in which also almost in similar circumstance the authority has been directed to re-consider the case and as such it appears to this Court that the request of re- consideration and to take a fresh decision deserves to be directed.

10. Since the co-ordinate bench has dealt with this issue the relevant observations contained in Paragraph Nos.: 6 and 7 are reproduced hereinunder:-

"6. It appears that the Appellate Authority by the order dated 22.02.2017 while allowing the revision application preferred by the petitioner, quashed and set aside the order passed by the Collector dated 30.11.2010 and specifically directed the Collector to decide the said application preferred by the petitioner within a period of 45 days in lieu of Government Resolution cited in the order itself. It appears that the Collector failed to decide the said application within a stipulated time frame of 45 days in accordance with the order passed by the Appellate Authority and finally on 30.11.2018, the

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Collector has rejected the application filed by the petitioner relying on Rule 4 of the Gujarat Minor Mineral Concession Rules, 2017, by which the lease applications were to be granted only by auction. The Appellate Authority by the order dated 04.06.2019 confirmed the order passed by the Collector dated 30.11.2018, which came to be passed after a period of 45 days. The Appellate Authority remanded matter back to the Collector by the order dated 22.02.2017 with a direction to decide the same within a period of 45 days relying on Government Resolution as mentioned in the said order. The Collector however decided the said application on 30.11.2018 beyond the said time period. The new regulations i.e. Gujarat Minor Minerals Concession Rules, 2017, came into force on 24.05.2017 and relying on the same, the Collector rejected the application preferred by the petitioner on 30.11.2010. The Appellate Authority allowed the application filed by the petitioner on 22.02.2017, which was prior to 24.05.2017 the Gujarat Minor Minerals Concession Rules, 2017, came into force.

7. The case of the petitioner can be said to be saved case, more particularly, in view of the circular issued by the Industries and Mines Department dated 18.12.2018. Consequently, the impugned order dated 30.11.2018 passed by the Collector and order passed by the Appellate Authority on 04.06.2019 are quashed and set aside. The matter is remitted back to the Collector to decide the application preferred by the petitioner afresh in accordance with present rules and regulation of Gujarat Minor Minerals Concession Rules, 2017, within a period of six weeks from the date of receipt of this order as a saved case."

11. In the light of aforesaid observation since the direction is sought to re-consider and to take a fresh decision, this Court has not expressed any opinion on the issue whether what

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would be effect of non-issuance of Letter of Intent (LOI) in the context of clarificatory circular dated 18.12.2018 and has also not been called upon to examine as to whether the case of the petitioner would be covered under 'saved case' or not and as such the effect of such circular dated 18.12.2018 and the effect of the observations made by the co-ordinate bench of this Court are to be taken into consideration by the authority in the perspective of present facts and situation of the case on hand. Hence, without expressing any opinion on such issues the Court is inclined to remand the matter back to the authority for fresh consideration and to examine the effect of circular dated 18.12.2018 as well as the observation made by the co-ordinate bench of this Court as referred to above.

12. Hence, following order would meet the ends of justice in the considered opinion of this Court.

12.1 The present Special Civil Application is allowed.

12.2 The impugned order dated 06.05.2019 is hereby quashed and set aside with a consequential direction that the respondent No. 3 to examine the case of the petitioner in the light of aforesaid observation and while taking a fresh decision due opportunity to the petitioner be extended.

12.3 Since this Court has not expressed any opinion on the merits of the matter it would be independently open for the Collector to examine the effect of circular dated 18.12.2018 as well as keeping in mind the observation made by the co- ordinate bench in the decision dated 20.04.2022 passed in

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Special Civil Application No. 16109 of 2019 and shall pass a fresh order after assigning proper reasons.

12.4 Since the original application is of the year 2010 and the proceedings have went on for a pretty long period, it would be apt and appropriate to direct the respondent authority i.e. Respondent No. 3 to take a fresh decision as early as possible not later than 8 weeks from the date of receipt of writ of this order.

13. With the above observations and directions, the present Special Civil Application stand allowed.

(ASHUTOSH SHASTRI, J) SHRIJIT PILLAI