Karsanbhai Kanabhai Vaja vs State Of Gujarat
2024 Latest Caselaw 7739 Guj

Gujarat High Court

Karsanbhai Kanabhai Vaja vs State Of Gujarat on 1 August, 2024

Author: Sangeeta K. Vishen

Bench: Sangeeta K. Vishen

                                                                               NEUTRAL CITATION




     C/SCA/11246/2024                           ORDER DATED: 01/08/2024

                                                                                undefined




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 11246 of 2024

==========================================================
                        KARSANBHAI KANABHAI VAJA
                                 Versus
                           STATE OF GUJARAT
==========================================================
Appearance:
MALHAR J PARMAR(10124) for the Petitioner(s) No. 1
MR MAHER P VAKHARIA(10744) for the Petitioner(s) No. 1
MR MEET THAKKAR, AGP for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                  Date : 01/08/2024
                   ORAL ORDER

By this petition, the petitioner has prayed for quashing and setting aside the order dated 10.06.2024 passed by the Member Secretary (Review Committee) & Joint Secretary (Administration), Industries and Mining Department (hereinafter referred to as "the authorities"), whereby, the application of the petitioner, seeking review, has been rejected.

2. Mr Malhar J. Parmar with Mr Maher P. Vakharia, learned advocates for the petitioner submitted that earlier, the Collector has passed the order 31.07.2017, whereby, the application of the petitioner was disposed of in view of the Gujarat Minor Mineral Concession Rules, 2017 (hereinafter referred to as 'Rules of 2017') coming into force and more particularly, Rule 29 (1) of the Rules of 2017. The Revision application against the said order, came to be dismissed on twofold grounds, namely; (i) that the application has been filed with the delay of 416 days, and (ii) that by virtue of Rule 4 (1) of Rule 29 (1) of the Rules of 2017, the application, has been rendered ineligible. It is submitted that sufficient explanation was

NEUTRAL CITATION

C/SCA/11246/2024 ORDER DATED: 01/08/2024

undefined

offered, substantiating the delay; however, not accepting the explanation, the revision application came to be dismissed Petitioner had filed a review application which, also met the same fate. It is submitted that the order has been passed without properly considering the explanation and there ought to have been some reasons assigned for not accepting the explanation. It is urged that the impugned order, therefore, be quashed and set aside.

3. Mr Meet Thakker, learned Assistant Government Pleader has submitted that there is no error committed in passing of the order dated 10.06.2024 inasmuch as, the explanation offered, has properly been considered, which was about the ill health and advice of the doctor. Except this, there was no further explanation offered. It is submitted that not only on the delay, but even on merits, the application has been considered. It is submitted that as per sub-rule (1) of Rule 29 of the Rules of 2017, all applications pending, would be rendered ineligible, except the saved cases as provided in sub- rule (2) of Rule 29 of the Rules of 2017. It submitted that it is nobody's case that the petitioner falls within the saved cases and hence, no interference is necessitated.

4. Heard learned advocates appearing for the respective parties.

5. The petitioner is aggrieved by the order dated 10.06.2024 passed by the authorities, whereby, the revision application, filed by the petitioner, has not been entertained. The Authority was of the opinion that the application is filed after more than 416 days. Explanation offered, was that the petitioner was hospitalised and was facing financial crunch and therefore, could not file the revision application within the limitation. Since the explanation offered as provided by the party was not sufficient, the delay was not condoned. With this, the revision application was rejected.

                                                                                         NEUTRAL CITATION




     C/SCA/11246/2024                                    ORDER DATED: 01/08/2024

                                                                                         undefined

6. Pertinently, the revision under sub-rule (2) of Rule 50 of the Rules of 2017 was sought for against the order dated 04.04.2022, which was passed by the Appellate Authority & Deputy Secretary (Mines) who, has rejected the revision application on the ground of delay, so also on the merits. What weighed with the authority was coming into force of the Rules of 2017 and more particularly, sub- rule (1) of Rule 4 read with sub-rule (1) of Rule 29, of the Rules of 2017. The order of the Collector, disposing of the application, was confirmed. Clearly, it is not that the order has been passed solely on the ground of delay, but also considering the merits of the matter.

7. Notably, the Rules of 2017, has come into force with effect from 24.05.2017. Sub-rules (1) and (2) of Rule 29 of the Rules of 2017, is extracted herein below:-

"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 before the commencement of these rules, the Government has communicated a prior written approval for grant of a quarry lease to an applicant; or if a letter of intent has been issued in writing to an applicant by the Government to grant a quarry lease, the quarry lease shall be granted in accordance with the provisions of sub-rules (3) to (6) (inclusive):

Provided that, if an applicant has applied for and obtained:

(a) an environmental clearance; or (b) an approval for change in land use to non-agricultural purposes; or (c) an approval for mining plan, for conducting mining operations over the proposed lease area governed by these rules, prior to the commencement of these rules:

Provided further that, such person shall make a written representation before the Government with relevant documents and if Government deems fit, shall issue letter of Intent, which shall entitle such person to obtain a quarry lease, in the same manner as if such letter of intent was issued before the commencement of these rules.]"

NEUTRAL CITATION

C/SCA/11246/2024 ORDER DATED: 01/08/2024

undefined

Sub-rule (1) of Rule 29 of the Rules of 2017 provides that all the applications filed and pending before the commencement of the Rules of 2017, shall be rendered ineligible. Sub-rule (2) of Rule 29 of the Rules of 2017, carves out an exception, creating categories, namely; (i) issuance of the LoI and (ii) prior approval of the State Government etc.

8. The issue stands covered by the judgment of the Division Bench in the case of State of Gujarat vs. Giganbhai Nathubhai Karotara passed in Letters Patent Appeal no.718 of 2023 and allied matters. While considering the provisions of Rule 29, it has been held and observed that once the Rule holds the field, which provides for a particular method of disposal of the quarry lease applications, the same have to be applied to all the cases. Undecided pending applications, could not be permitted to be governed by the earlier procedure. In paragraph 6, it is observed thus:

"6. The inescapable conclusion emerges is that the Gujarat Minor Mineral Rules, 2017, as they came into force, the applications pending for grant of quarry lease were not liable to be considered as per the position obtained before the Rules. The new statutory Rules are to be necessarily applied for all cases of grant of quarry lease. The petitioners' applications were rendered ineligible and redundant.

6.1 As rightly observed by the Collector, the petitioners could participate in auction procedure, which may be undertaken as per the in-force statutory rules.

6.2 The decision of the Collector treating the applications of the petitioners to be ineligible was eminently proper and legal.

6.3 A manifest error was committed by learned Single Judge in recording the findings and passing the order setting aside the decision of the Collector and relying on the clarification dated 18.12.2018 to remand the case.

6.4 For the foregoing reasons and discussion, the impugned order in both the cases along with findings and directions of learned Single Judge do not sustain in the eye of law. Resultantly, impugned judgment and order dated 02.05.2022 passed in both the Special Civil Applications are set aside."

NEUTRAL CITATION

C/SCA/11246/2024 ORDER DATED: 01/08/2024

undefined

9. In the present case, the application of the petitioner was filed somewhere in the month of September, 2016; however, there was neither any LoI issued nor any prior approval granted by any authorities and therefore, applying the provisions of sub-rule (1) of Rule 29 of the Rules of 2017, the application has been disposed of by the Collector. No error, can be said to have been committed either by the Collector or by the Appellate Authority - Deputy Secretary (Mine), Industries & Mines Department in rejecting the application, so also the rejection of revision by the Member Secretary (Review Committee) & Joint Secretary (Administration), Industry and Mines Department.

10. In view of the above, the present writ petition, does not warrant interference and is dismissed. No order as to costs.

(SANGEETA K. VISHEN,J) BINOY B PILLAI