Allowed

Larsen and Toubro Limited v. State of Gujarat

Gujarat HC19 Aug 2019SCA/10640/2016

Case brief

AI extract

What is this about?

The High Court of Gujarat in special civil application No. 10640/2016 allowed the petition to quash orders imposing liability for illegal quarrying. The court held that orders were passed without assigning reasons and relied on primitive measurement methods and delayed inspections without scientific proof.

What did the court decide?

Orders dated 26.02.2015, 13.07.2015, and 02.01.2016 passed by respondents 3, 4, and 1 respectively were quashed and set aside.

Larsen and Toubro Limited Vs State of Gujarat — Writ and Judicial Review | Gujarat HC (2019)

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C/SCA/10640/2016 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 10640 of 2016

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE A.Y. KOGJE

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Sd/-

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====================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?	========== Yes
2 To be referred to the Reporter or not ?	Yes
3 Whether their Lordships wish to see the fair copy of the judgment ?	No
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	No

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LARSEN AND TOUBRO LIMITED

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Versus

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STATE OF GUJARAT & 3 other(s)

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Appearance:

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MR MIHIR JOSHI, SENIOR ADVOCATE assisted by M/S.SHAMIK BHATT, PARINI SHAH and PINAK PARIKH for SINGHI AND CO(2725) for the Petitioner

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MR AJ JADEJA, AGP for the Respondents

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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE

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Date : 19/08/2019

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ORAL JUDGMENT

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1. RULE . Learned AGP Mr.A.J.Jadeja waives service

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of Rule on behalf of the respondents.

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2. This petition is filed seeking quashing of

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C/SCA/10640/2016 JUDGMENT

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order dated 26.02.2015 passed by respondent No.3-
Geologist, order dated 13.07.2015 passed by respondent
No.4-Additional Director (Appeals) and order dated
02.01.2016passed byrespondentNo.1-Secretary,
Industries and Mines Department. The issue is under the
Mines and Minerals (Development and Regulations) Act
1957. The petitioner who is engaged in construction of
road on national highway No.8A and was under quarry
permit to excavate ordinary clay for a temporary period
and after said period was over, on the basis of
inspection carried out by the Mining Department, the
petitioner was allegedly found to have excavated more
than permitted quantity and had excavated beyond the
permitted area and for that reason, proceedings
initiated.

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3.Learned Senior Advocate for the petitioner
submitted that the petitioner is inter alia engaged in
construction of 4/6 laning of the section of road from
Gandhidham (Kandla) to Mundra Port forming part of
national highway No.8A (0.00 km to 71.40 km). For the
said Kandla-Mundra road project, the petitioner required
ordinary clay in large quantity. Therefore, the
petitioner made application dated 27.08.2012 to
respondent No.3 under Rule 61(1) of the Gujarat Minor
Minerals Concession Rules, 2010 for quarry permit in

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C/SCA/10640/2016 JUDGMENT

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respect of land bearing survey No.276/5, mouje Meghpar
Borichi, Tal. Anjar, admeasuring 2.00 ha. By order dated
29.10.2012, the competent authority granted quarry permit
to the petitioner for excavation of ordinary clay in the
said land up to the quantity of 75,000 MT for a period of
90 days, on the conditions mentioned in the said order
dated 29.10.2012.

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3.1It is submitted that the petitioner received
notice dated 26.08.2014 issued by respondent No.3
pursuant to the site inspection on 02.07.2014. While it
was not mentioned as to under which provision of law the
said notice was issued, respondent No.3 had stated that
the same had been issued pursuant to the inspection
carried out by its officers purportedly under Rules 19(a)
to 19(e) of the Rules. In the said notice, respondent
No.3 had alleged that pursuant to the measurement done
during the site inspection on 02.07.2014, it was found
that the petitioner had excavated a total of 1,64,620.24
MT of ordinary clay from the said land and that it had
excavated another 1,60,164.85 MT from area outside the
permitted area i.e. adjacent to the said land. It was
further alleged that the petitioner had committed offence
in view of the alleged breach of Rules 5 and 6 of the
Rules and that the said offence allegedly committed by
the petitioner could be compounded in view of the

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C/SCA/10640/2016 JUDGMENT

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provisions of Rules 13(2) and 14 of the Rules.
Respondent No.3 computed that the petitioner was liable
to make payment of Rs.1,69,72,284/- and inquired if the
petitioner was agreeable to make payment of the said
amount.

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3.2It is submitted that the petitioner addressed
reply on 17.09.2014 to respondent No.3. The petitioner
inter alia submitted that it had only excavated 64,902 MT
or ordinary clay and that the alleged illegal excavation
must have been carried out by some other unauthorized
person after the petitioner had excavated the site. The
petitioner brought to the attention of respondent No.3
that the petitioner had last excavated from the said land
on 25.01.2013 and had vacated the said land immediately
thereafter.

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3.3It is submitted that respondent No.3 failed to
consider submissions made by the petitioner in its reply
dated 17.09.2014 and passed the impugned order dated
26.02.2015 without assigning any reasons whatsoever. It
it submitted that the petitioner filed appeal before
respondent No.4 being Appeal No.13 of 2015 on 16.03.2015.

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3.4It is submitted that the petitioner noticed
that its applications in respect of other borrow areas
pending before the office of respondent No.3 were not

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C/SCA/10640/2016 JUDGMENT

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getting processed. On making inquiry, the petitioner was
informed that the said applications in respect of other
borrow areas were not getting processed as the petitioner
had not made payment towards the demanded amount of
Rs.1,69,72,284/-. The petitioner addressed letters dated
16.03.2015 and 23.03.2015 to respondent Nos.4 and 2
respectively, thereby requesting to direct respondent
No.3 to process its applications in respect of other
borrow areas.

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3.5It is submitted that respondent No.4 heard the
appeal filed by the petitioner and passed the impugned
order dated 13.07.2015, whereby it upheld the impugned
order dated 26.02.2015 passed by respondent No.3.

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3.6It is submitted that the site inspection was
carried out on 02.07.2014 after a considerable delay of
17 months from the date of last excavation undertaken by
the petitioner on the said land. It is submitted that
such site inspection was carried out by the office of
respondent No.3 after a period of 17 months from the date
of last excavation, during which period the petitioner
was not in possession of the said land. It is submitted
that there have been instances wherein unauthorized
persons have been found to illegally excavate ordinary
clay from borrow areas, including the said land after the
same was vacated by the petitioner.

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C/SCA/10640/2016 JUDGMENT

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3.7It is submitted that respondent No.3 undertook
such inspection only after a period of 17 months after
the petitioner had vacated the said land and which fact
was also informed to respondent No.3 by way of letter
dated 08.03.2013. Respondent No.3, with a view to
overcome the aforesaid delay in site inspection, has
falsely claimed that the site inspection has been carried
out under the provisions of Rules 19(a) to Rule 19(e) of
the Rules. The falsity of the said claim is evident from
the “rojkam” prepared by the officers of respondent No.3
after the site visit on 02.07.2014, wherein it is clearly
mentioned that the site inspection was carried out in
view of the completion of the excavation activity which
was intimated in March 2013.

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3.8It is submitted that the impugned orders have

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been passed in complete violation of the principles of
natural justice inasmuch as the petitioner has never been
provided with either the copy of the “rojkam” dated
02.07.2014 or the alleged map and/or alleged computerized
measurement sheets, which are the very basis of
allegations made in the notice dated 26.08.2014.

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3.9It is submitted that respondent No.3 imposed
penalty upon the petitioner without assigning any reason
and in absence of any evidence to show that the

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C/SCA/10640/2016 JUDGMENT

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petitioner had excavated ordinary clay in breach of the
quarry permit granted to it. It is submitted that while
respondent No.3 has not even relied upon any evidence,
respondent No.4 has upheld the order of respondent No.3
only in view of the fact that the petitioner had not
informed the appropriate authority about the completion
of the excavation immediately thereafter.

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3.10It is submitted that the impugned order dated
02.01.2016 has been passed in violation of the principles
of natural justice inasmuch as, the alleged data received
from the National Remote Sensing Centre and relied upon
by respondent No.2 has also not been provided to the
petitioner. In the circumstances, the petitioner was not
permitted to defend itself efficaciously.

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4.As against this, learned AGP submitted that the
petitioner company by letter dated 08.03.2013 addressed
to the office of respondent No.3 forwarded statements of
royalty passes and information showing details of the
royalty pass numbers, quantity of mineral, vehicle number
and driver name. It is submitted that the contention of
the petitioner that it has submitted all royalty passes
to the office of respondent NO.3 is not correct as the
petitioner has only submitted the statement whereas it is
required to submit all royalty passes along with
weighment slip of weighbridge for verifying whether the

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C/SCA/10640/2016 JUDGMENT

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permit holder or lease holder has dispatched the same
quantity of mineral as shown in the royalty passes from
the permit area or lease area. The petitioner company
purposely after more than two months from the date of
completion of the permit, submitted royalty pass
information statement to the office of respondent No.3.
The petitioner company also failed to inform about the
completion of the work immediately to the office of
respondent No.3. It is further submitted that the
petitioner company failed to explain in its petition the
reasons for delay of more than two months in informing
and providing royalty pass information statement to the
office of respondent No.3. Respondent No.3 resumed
charge as Geologist, Kutch-Bhuj in August 2013 and when

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it came to the knowledge required exercise of carrying
out inspection is pending, respondent No.3 immediately
directed the subordinate to carry out the inspection and
measurement of the area where permit was issued to the
petitioner company.

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4.1It is submitted that the petitioner company
failed to comply with condition No.10 of the permit grant
order dated 29.10.2012 till date. Condition No.10 of the
grant order clearly provides that the permit holder has
to keep the weighment slip of every truck or carrier.

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The petitioner company till date has not submitted the

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C/SCA/10640/2016 JUDGMENT

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weighment slip along with royalty passes statement for
verification of the royalty passes despite several oral
instructions.

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4.2It is submitted that the team of the office of

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respondent No.3 inspected the site where permit was
granted in presence of the representative of the
petitioner company on 02.07.2014. It is further
submitted that the measurement of the area was carried
out by the inspection team and it was found after
preparation of measurement sheet that the petitioner
company had carried out excavation of 1,60,164.85 MT of
mineral ordinary clay outside the permit area. The
petitioner company has also carried out excavation of
total 1,64,620.24 MT of mineral inside the permit area
whereas it was shown by the petitioner company as per the
royalty pass information statements submitted on
08.03.2013 that it has excavated only 64,902 MT of
mineral which establishes that the petitioner has
excavated excess quantity of 99,718.24 MT of mineral and
dispatched the same without royalty passes illegal.
Therefore, total quantity of mineral excavated by the
petitioner company illegally amounts to 2,59,883.09 MT of
mineral ordinary clay.

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4.3Referring to the orders passed, it is submitted
that the revisional authority also the high resolution

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C/SCA/10640/2016 JUDGMENT

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data dated 12.03.2013 of National Remote Sensing Centre,
Government of India. The excavation found in high
resolution data provided by the National Remote Sensing
Centre is in conformity with the measurement sheet

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prepared by the inspection team. The revisional
authority in its order observed that the petitioner
company submitted the royalty pass information statement
on 08.03.2013 and therefore, it is not in question that
they are in possession of the permit area till 08.03.2013
and the high resolution data is of 12.03.2013 and
therefore, it does not seem possible that some unknown
person excavated huge quantity of 2,59,883.09 MT in only
five days.

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5.Having heard learned Advocates for the parties
and having perused documents on record, the petitioner
applied for grant of quarry permit in respect of land
bearing survey No.276/5, mouje Meghpar Borichi, Tal.
Anjar, Dist. Bhuj-Kutch, admeasuring 2.00.00 hectare by
way of application dated 27.08.2012. The office of
respondent No.3 vide letter dated 26.09.2012 forwarded
the said application of the petitioner with all necessary
opinions and documents to the office of the Commissioner,
Geology and Mining for further consideration. The
Industries and Mines Department, Government of Gujarat
vide order dated 29.10.2012 granted quarry permit to the

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C/SCA/10640/2016 JUDGMENT

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petitioner for excavation of mineral ordinary clay for
quantity of 75,000 MT for a period of 90 days.

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6.The conditions, specifically condition No.1
under the permission provides for inspection by the
District Officer when 90% of the permitted excavation is
carried out. It was also obligatory upon such officer to
vigilantly carry out inspection and take care that
excavation beyond the permitted quantity does not take
place. As mentioned in the permission itself, ordinary
clay of 75,000/- MT was permitted to be excavated within
a period of 90 days. The period of 90 days was over on
29.01.2013. The mining activity concluded on 25.01.2013.
However, on 08.03.2013, intimation was given to the
Geologist about completion of mining activity as per the
permit. The conditions of permit does not specify
requirement of intimation of completion of mining. Even
if it be so, when the intimation was given on 08.03.2013,
the respondent-Department carried out inspection on
02.07.2014. The map produced by the respondents along
with their affidavit as well as narration of show cause
notice clearly indicate that the inspection was carried
out on 02.07.2014. The affidavit filed by the
respondents does not give any explanation as to why
inspection was carried out after almost 17 months. The
show cause notice does not specify the manner in which

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the respondents assessed excavation of 1,64,620.24 MT of
ordinary clay from the area covered under the permit and
1,60,164.85 MT from the area beyond the permitted area.

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For coming to such conclusion, obviously, delayed
intimation given on 08.03.2013 about completion of mining
as on 25.01.2013 cannot be treated as a reason to believe
illegal excavation. Moreover, on perusal of the order
impugned, the reasoning adopted is that excavation has
taken place between the date of closing of mining
activity and the date of intimation and within this
period, such huge quantity of excavation is not possible
by small time illegal miners. Such reasoning

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explanation, without any evidentiary foundation, cannot
be considered to be valid. Even the method adopted by
the Department to arrive at quantity of ordinary clay
excavation also appears to be primitive. Merely by
measuring depth of pit, assessment of quantity of
excavation cannot be treated as conclusive evidence.
Especially in presence of latest modern equipments, it
was the duty of the respondent-Department to adopt more
better and accurate method for making such assessment.

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7.In para-5 of order of the Commissioner dated

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02.01.2016 in Revision Application No.3 of 2015, it is
held as under:-

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“(5)As the data of the National Remote Sensing

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Centre was available for dated 12/03/2013, it
was obtained and according to that, the
excavation was done inside and outside the
permitted areas of its plans. It is consistent
with the details mentioned in the measurement
of the Surveyor of the district office, which
makes clear that the measurement done by the
district office is proper. Moreover, the
license was expired on 26/01/2013 and the
applicant, with intention to get the royalty of
20% additional stock refund which was paid at
the time of obtaining license, has submitted
the accounts of the license on 08/03/2013,
which proves that the possession of the
licensed area was with him until 08/03/2013.
The data of the scientifically excavated area
received from the National Remote Sensing
Centre is of 12/03/2013, therefore, it doesn’t
seem possible that other persons took away
259883.09 Metric Ton within duration of 05 days
and therefore, there is reason to believe that
the said excavation was done by the applicant.
The appellant has not contended for the
measurement besides the accounts produced on
08/03/2013 and earlier also, the appellant was
penalized for the illegal mining.”

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8.However, in the show cause notice and

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subsequent adjudication, there is no mention of the data
and map available on the basis of National Remote Sensing
Centre and if it be so, the same ought to have been
supplied to the petitioner along with the show cause
notice.

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C/SCA/10640/2016 JUDGMENT

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9.When the petitioner has produced on record

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photographs of the mining activity being carried out in
the very area even after issuance of show cause notice,
the Court can safely presume that local persons other

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than the petitioner are also indulging in the mining
activity in the same area. This fact was also brought to
the notice of the respondent-Department and hence, the
respondent-Department ought to have taken into
consideration such relevant aspects. It appears to the
Court that the Department did not take any vigilant

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action to carry out the inspection even while the mining
activity was going on during the permitted period or even
thereafter immediately. Thereafter, it is not open for

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the Department to put entire burden of all the excavation
of ordinary clay in the area on the shoulders of the
petitioner and that too without any substantial evidence
of illegal mining by the petitioner.

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10.In view of the aforesaid, it would be

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appropriate to set aside order dated 26.02.2015 passed by
respondent No.3-Geologist, order dated 13.07.2015 passed
by respondent No.4-Additional Director (Appeals) and
order dated 02.01.2016 passed by respondent No.1-
Secretary, Industries and Mines Department. The same are
accordingly quashed and set aside.

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11.As the fact of excavation of ordinary clay in
the area is very much there, such activity cannot be
disregarded and therefore, it is still left open for the
respondent-Department to initiate any action based on

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sound, scientific evidence against the persons
responsible for such illegal excavation of ordinary clay.
The action can also be initiated by the Department on the
basis of any other and further evidence beyond the
evidence on the basis of which decision is taken so far,
even against the petitioner.

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12.The petition stands allowed to the aforesaid

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extent. Rule is made absolute. No order as to costs.

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Sd/(A.Y. KOGJE, J)

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SHITOLE

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Larsen and Toubro Limited v. State of Gujarat

Case brief

What is this about?

What did the court decide?

Larsen and Toubro Limited v. State of Gujarat

Case brief

What is this about?

What did the court decide?

What the court decided

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