Gujarat High Court

Velaji Rudaji Thakor vs State Of Gujarat on 30 January, 2023

Bench: Biren Vaishnav

     C/SCA/7020/2017                             JUDGMENT DATED: 30/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 7020 of 2017
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 7021 of 2017

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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                          VELAJI RUDAJI THAKOR
                                  Versus
                       STATE OF GUJARAT & 3 other(s)
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Appearance:
MR SATYAM Y CHHAYA(3242) for the Petitioner(s) No. 1
MR.DHARITRI PANCHOLI, AGP for the Respondent(s) No. 1,2,3,4
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 30/01/2023

                        COMMON ORAL JUDGMENT

1. RULE returnable forthwith. Ms.Dharitri Pancholi

learned AGP waives service of notice of Rule on

behalf of the respondent State.

C/SCA/7020/2017 JUDGMENT DATED: 30/01/2023

2. With the consent of learned advocates for the

respective parties, the petition is taken up for

final hearing.

3. For the purposes of this judgement, facts of

Special Civil Application No.7020 of 2017 are to

be considered.

3.1 It is the case of the petitioner that the

petitioner was owner of leasehold rights of the

land in question under the Gujarat Minor Mineral

Concession Rules, 2010. The tenure of quarry

lease initially was for a period from the year

2008 till the year 2011. As the lease was

expiring on 23.04.2011, the petitioner made an

application for renewal on 13.05.2003. Since the

application for renewal was rejected by a

communication dated 06.06.2016, the petitioner

approached this Court by filing Special Civil

C/SCA/7020/2017 JUDGMENT DATED: 30/01/2023

Application No.10055 of 2016 with a prayer to

set aside the impugned order. On remand of the

case, the authority once again by the impugned

order dated 09.03.2017, rejected the application

for renewal on the ground that since the first

renewal application was made on 13.05.2010 for

the period of lease which was to expire on

24.04.2011, in light of the proviso to Rule 17 of

the Rules of 2010, the period of extension can be

considered valid only till 23.04.2014. The

authority held that since the petitioner had made

the application for renewal thereafter on

06.06.2014 post expiring of the lease, the

operation of Rule 17(4) was not applicable.

4. Mr.Chhaya in support of his submission, would

rely on a decision of the coordinate bench of this

Court in case of Laxmanbhai Bhagirathbhai

Kahar v. Collector of Chhota Udaipur and 1

C/SCA/7020/2017 JUDGMENT DATED: 30/01/2023

rendered in Special Civil Application No.6768

of 2015.

5. Ms.Dharitri Pancholi learned AGP would support

the order of the authority. Her submission

essentially was that the petition is misconceived

on the ground of availability of alternative

remedy. The other submission was that, as is

evident from reading of the order, an application

for renewal has to be filed within 180 days prior

to the extinguishment of the lease and since once

by virtue of operation of sub-rule (4) of Rule 17,

the lease was extended till 2014, the subsequent

extension could not be availed of by the benefit

of the rule in question. In addition thereto, she

would also rely on a decision dated 31.07.2017

passed in Special Civil Application No.16723 of

2012, wherein, the Court considering the

amended rules, opined that once the new Rules

C/SCA/7020/2017 JUDGMENT DATED: 30/01/2023

of 2017 has superseded the old Rules, the

petitioner would not have any right to claim any

relief in the petition.

6. Considering the submissions made by learned

counsel for the respective parties, what is

evident is that the first lease was for a period of

three years i.e. from 24.04.2008 to 23.01.2011.

An application for renewal was made on

13.05.2012 undisputedly in accordance with Rule

17(4) of the Rules. That application was not

decided till passing of the first impugned order

on 06.06.2016, thus, giving the benefit to the

petitioner of extension of lease till 23.04.2014.

Reading of the order passed by this Court on a

challenge to the order of 06.06.2016 would

indicate that the order of 06.06.2016 was

C/SCA/7020/2017 JUDGMENT DATED: 30/01/2023

quashed and set aside for the authorities to

decide the issue afresh. The order of this Court

(Coram:Hon'ble Mr.Justice S.H.Vora) dated

28.06.2016 reads as under:

"[1] Notice for final disposal be issued to respondents. Mr.N.J.Shah, learned Assistant Government Pleader waives service of notice on behalf of respondent-State of Gujarat.

[2] By way of present petitions, the petitioner has made following relief in paras-15(B) and 15(C), which read as under:-

15(B) Your Lordships may be pleased to issue an appropriate writ order or direction and thereby quashed and set aside the impugned order dated 06.06.2016 passed by the respondent No.3 at Annexure-A.

(C) Pending hearing, admission and final disposal of present petition, Your Lordships may be pleased to stay, execution, implementation and operation of the impugned order dated 06.06.2016 passed by the respondent No.3 at Annexure A.

[3] Having heard the submissions made at bar, it appears that the impugned orders dated 06.06.2016 passed by the respondent No.3-Collector, Banaskantha are passed against the petitioner without hearing the

C/SCA/7020/2017 JUDGMENT DATED: 30/01/2023

petitioner and also without deciding application dated 13.05.2010 in view of Rule 17(4) of the Gujarat Mines and Mineral Concession Rules, 2010. Only on this ground, the impugned orders requires to be quashed and set aside as the said orders are passed by respondent No.3-authority without observing principles of natural justice.

[4] Under the circumstances, the impugned orders are hereby quashed and set aside and respondent No.3 is hereby directed to hear the matter afresh and pass appropriate order after hearing the petitioner in accordance with rules governing the applications in question.

[5] With this observation and direction, present petitions stand disposed of. Direct Service is permitted."

7. What therefore is evident is that, once the order

of authority of 06.06.2016 was set aside, the

benefit of Rule 17(4) of the 2010 rules enured in

favour of the petitioner till a decision was

rendered on the application for lease.

8. For the purposes of this order, it will be in the

benefit to reproduce Rule 17(4) of the Rules. The

C/SCA/7020/2017 JUDGMENT DATED: 30/01/2023

same reads as under:

"17(4) An application in Form F, for the renewal of a quarry lease shall be presented, in triplicate, at least 180 days before the expiry of the lease to the Competent Authority and shall be accompanied by a treasury Challan of such amount and in such manner as specified in rule 6:

Provided that any such application may be admitted after the expiry of the stipulated period, if the Competent Authority is satisfied that the applicant had just and sufficient cause for not presenting the application within such period. Provided further that in no case, the application made after the expiry of the lease shall be entertained.

Provided also that in case the application for the renewal of a quarry lease is not disposed of by the Competent Authority before the date of expiry of the lease, the period of lease shall be deemed to have been extended for a further period till the Competent Authority passed the order thereon."

9. Evidently till the impugned order was passed on

09.03.2017, no decision was taken on the

application for renewal of quarry lease. The

question therefore as decided by this Court in

C/SCA/7020/2017 JUDGMENT DATED: 30/01/2023

the case of Laxmanbhai Bhagirathbhai Kahar

(supra) would squarely apply. The said order

reads as under:

"Rule. Learned Assistant Government Pleader Mr. Udit Mehta waives service of notice of Rule on behalf of the respondents.

1.1 In the facts and circumstances of the case, and with consent and request of both the learned advocates for the parties, the petition is taken up for final consideration.

2. The petitioner has prayed for setting th aside order dated 10 February, 2015 passed by respondent No. 1 Collector, Chhota Udaipur, and for directing him to renew quarry lease of the petitioner.

3. The facts as well as sequence of events and proceedings in the background leading to the present petition may be stated with relevance. The application of the petitioner for quarry lease for mineral sand in the area of 4-90-00 Hectors land adjoining the bed of river Orsang, Taluka Sankheda, District Vadodara, came to be granted for three years period and the lease deed for the rd same was executed on 3 March, 2007.

Before expiry of the lease period, the petitioner applied for renewal of the lease th on 19 January, 2010. The said renewal application came to be rejected by the

C/SCA/7020/2017 JUDGMENT DATED: 30/01/2023

th Collector by order dated 8 November, 2010, on the ground that the petitioner had made application late by 139 days.

3.1 Against the said order of the Collector, the petitioner filed revision application, which was dismissed. Special Civil Application No. 3025 of 2014 was filed, and this Court remanded the matter. On remand, the revisional authority decided the Revision again. It accepted the explanation for delay of 139 days that the petitioner was ill for which medical certificates were produced. It also held that no opportunity was afforded to the petitioner. Resultantly, the revisional authority set aside order th dated 8 November, 2010 of the Collector and remitted the case back to the Collector for decision afresh.

3.2 Acting thereupon, the Collector respondent No. 1 herein passed order dated th 10 February, 2015 whereby he rejected the application for renewal of lease on the ground that the first renewal application by th the petitioner was of 19 January, 2010, and considering that three years period got nd over on 2 March, 2013, and that during the said three years period the lease-holder had not made another application. The Collector referred to Rule 17(4) of Gujarat Minor Mineral Concession Rules, 2010 and passed order rejecting renewal application. The said order is challenged by filing the present petition.

C/SCA/7020/2017 JUDGMENT DATED: 30/01/2023

4. Learned advocate for the petitioner Mr. R.D. Kinariwala submitted that respondent No. 1 Collector did not take any decision on th the revision application dated 19 January, 2010, and until the decision thereon was taken, the petitioner was not required to apply again. It was submitted that period of 180 days under Rule 17 is required to be counted from the date of order of grant or from the date of lease deed executed.

5. The submission of learned advocate could be countenanced. Furthermore, the th Revisional Authority in its order dated 20 September, 2014, had in terms held that the reason for delay of 139 days was accepted, thus condoning the delay, the matter was remitted to the Collector. The Collector was to decide in light of the observations made by the Revisional Authority, as was clearly stipulated in express terms by the Revisional Authority. Instead of that, the Collector invented altogether a different ground and reason to reject the renewal application namely that original period of nd lease was over on 2 March, 2013 and the petitioner did not apply for renewal during the said 3 years. This ground was not only manifestly erroneous, but in resting on it, the Collector disregarded the mandate of the Revisional Authority.

5.1 The error committed by the Collector was in the nature of grave irregularity and error, because for the Collector, it was not

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permissible to travel outside the order of the Revisional Authority and not to obey the reasoning of the Revisional Authority. The approach adopted and ground endeared by the Collector for rejecting the renewal application is irrational, irrelevant and capricious. It partook the jurisdictional error and irregularity so as not to accept the contention of learned Assistant Government Pleader that an alternative remedy of revision was available against the impugned order. It would be too cumbersome to be justified and futile as well, to ask the petitioner to file revision application against the impugned order once again. The error on part of the Collector in passing the impugned order is so manifest that the discretion to exercise writ power of this Court could be properly exercised.

6. As a result of above discussion, the order th dated 10 February, 2015, passed by Collector, Chhota Udaipur, rejecting the application of the petitioner for renewal of quarry lease, in question, is hereby quashed and set aside. This petition is allowed in terms of prayer in Paragraph 13(B).

7. Rule is absolute. Direct service is permitted.

10. To the arguments of the learned AGP with regard

to extinguishment of the right in light of the

decision in the case of Special Civil Application

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No.16723 of 2012 and to the question of

applicability of Rule 29 which deals with the

extinguishment of the rights of an application

existing to have become ineligible, it will be in

the fitness of things to consider Rule 12 of the

amended Rules of 2017. Rule 12(A) thereof

would indicate that the period of quarry lease