Dismissed

Hariom Marble, Partnership Firm v. State of Gujarat

Gujarat HC26 Aug 2019SCA/11080/2016

Case brief

AI extract

What is this about?

This oral order dismisses a writ petition seeking a mining lease. The High Court held that the petition is infructuous as the rejection is based on a pending administrative appeal and a shift in policy requiring auctions under new Rules of 2017, rendering individual applications ineligible.

What did the court decide?

The petition for a mining lease was dismissed as infructuous and not entitled to the relief sought.

Hariom Marble, Partnership Firm Vs State of… — Mining and Natural Resources | Gujarat HC (2019)

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C/SCA/11080/2016 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 11080 of 2016

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HARIOM MARBLE, PARTNERSHIP FIRM

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Versus

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STATE OF GUJARAT & 4 other(s)

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Appearance:

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MR P P MAJMUDAR(5284) for the Petitioner(s) No. 1 SHASHVATA U SHUKLA(8069) for the Petitioner(s) No. 1 MR ROHAN N SHAH, AGP (1) for the Respondent(s) No. 1,2,3,4 MR DHAVAL D VYAS(3225) for the Respondent(s) No. 5

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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE

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Date : 26/08/2019

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ORAL ORDER

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This petition under Article 226 of the Constitution of India is filed against the order of rejection of the application by the petitioner for the purpose of getting mining lease for mining of marble.

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Learned advocate for the petitioner submitted that the application was apparently rejected only on the ground that there was a change in the measurement of the village survey numbers as a result of which, the land in question was treated to be land in the revenue survey of village Koteshwar.

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Learned advocate for the petitioner submits that the

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C/SCA/11080/2016 ORDER

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prayer before the court is two fold. The first being that the procedure adopted by the state authorities in changing the boundaries of the village so as to see that the land in question i.e. survey No.62, which was according to the petitioner, forming part of village Zarivav. Thereafter, was shown to be part of village Koteshwar and was covered under the area of forest. Learned advocate submitted that in so far as the rejection of the application on the ground of the survey number falling in forest area, the petitioner had already preferred an appeal under the Concession Rules and the same is pending.

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Learned advocate therefore, submitted that the present petition is restricted with regards to the procedure which is not followed in changing the boundary.

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Learned AGP opposes the ground of the petitioner primarily on the ground that there is already on record an opinion of the Forest Department submitting to the extent that Survey No.62 of village Koteshwar, ad-measuring 350 hectors which was part of the application for which mining lease permission was sought, falls within the Wild Life Sanctuary as declared under Section 4 of the Forest Act. Learned AGP also

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C/SCA/11080/2016 ORDER

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draws attention of this Court to the averments made in the affidavit to the extent that the petitioner has already availed the remedy available under the law and therefore, the petition should not be entertained. Learned advocate for the respondent No.5 submitted that the respondent No.5 was already granted the mining lease and has been carrying out the mining lease even before the petitioner has made any application.

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5.1 It is also the contention of the State that the present petition become infructuous cause of the very fact that the state authorities had already decided the application dated 24.08.2015 by virtue of the order dated 23.08.2016 giving all the reasons and thereby, ultimately the Application dated 24.08.2015 has been rejected by very said Order.

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5.2 It is further submitted that in view of the aforesaid development as the very main prayer of the petitioner herein is with regard to the direction upon the respondent state authorities for deciding the application grant of Quarry Lease has now been decided by the State Authorities and therefore, practically the present petition become infructuous and therefore, this Hon'ble Court may be pleased to dismiss of the same.

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C/SCA/11080/2016 ORDER

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5.3 It is further submitted that it is very much pertinent to note here that against the Order dated 23.08.2016, the petitioner herein has approached before the Appellate Authority under Rule 65 of the Gujarat Minor Mineral Concession Rules, 2010 (hereinafter referred to as Rules of 2010) and the same is pending the adjudication before the appropriate authority and as the Revision Application under Rule 65 of the Gujarat Minor Mineral Concession Rules, 2010 is already pending the adjudication before the appropriate authority, this Hon'ble Court may not adjudicate on merits and even otherwise, the present petition may be dismissed only cause of the fact that the appropriate authority is already in adjudicating the grievance voiced by the petitioner herein.

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5.4 It is further submitted that only on the aforesaid two grounds wherein, the order has already been passed rejecting the Application dated 24.08.2015 preferred by the petitioner herein as well as the petitioner herein has also preferred the Revision Application before the appropriate authority and therefore, on these two grounds, the present petition may not be entertained by this Hon'ble Court and the same may be dismissed.

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5.5 It is further submitted that at the earlier point of time,

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C/SCA/11080/2016 ORDER

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it has come to the knowledge of the concerned authorities that demanded area for grant of lease is getting over lapped against already granted area of lease, which has been granted to the Respondent No.5 herein and that was also one of the reason, whereby, the application of the petitioner herein has been rejected by the Competent authority.

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5.6 It is further submitted that by virtue of the Communication dated 04.08.2016, issued by the Office of the District Inspector of Land Records, Palanpur, whereby, ReSurvey data of Jarivav, Khokharbilli and Koteshwar along with the surveyed map have been forwarded to the Office of the Collector, Palanpur and relaying upon the same and from thereon, the Map of demanded land has been prepared by the concerned State Authorities.

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Having considered the rival contentions of the parties and having perused the documents on record, the application of the applicant for mining lease which is produced on record specifies survey No.62 of village Koteshwar for the purpose of mining lease. From the communication addressed by the Forest Department dated 01.08.2016 wherein it is indicated that survey No.62, ad-measuring 350 hectors of village

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C/SCA/11080/2016 ORDER

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Koteshwar forms a part of Balaram, Ambaji Wild Life Sanctuary declared as such under Section 4 of the Forest Act and therefore, there was no communicative opinion for grant of any mining lease activity. The submission of learned advocate for the petitioner with regards to the change in the boundaries of the two villages does not appear to be in order on record to suggest that there exists any order by which the land in question i.e. survey No.62 has been changed except for the communication. Settlement Commissioner's communication dated 16.05.2016 records that it would be on the basis of the survey carried out by the DILR after referring to all the necessary documents and the opinion given thereafter. It appears that even after the so called exercise of the DILR, the order was passed on 23.08.2016 wherein by referring to the fact that the land survey No.62, ad-measuring 350 hectors fall within the Wild Life Sanctuary and the application came to be rejected.

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6.1 From the pleadings it appears that by virtue of the Communication dated 05.08.2016, it has been intimated by the Office of the Deputy Conservator of Forest that demanded land by the petitioner is falling within Balaram- Ambaji Wildlife Sanctuary and therefore, the negative opinion has been given

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C/SCA/11080/2016 ORDER

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by the Deputy Conservator of Forest.

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In view of the aforesaid facts and more particularly, when there is no record with regard to the order of the State Government with regard to change of any boundary, the court is not inclined to undertake the exercise which involves factual exercise to decide that the declaration of boundary at all has taken place, moreover, when the said matter is with regard to allotment of mining lease and the shift in policy of the State Government allotting the mining lease only on the basis of public auction, the court is not inclined to entertain such petition.

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7.1 Moreover, under Rule-29 of the Gujarat Minor Mineral Concession Rules, 2017 (hereinafter referred to as Rules of 2017), it has been specifically mentioned that all the application for grant of quarry lease received prior to the date of the Commencement of the said Rules of 2017, shall become ineligible.

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7.2 Even otherwise under the rules of 2017 under Chapter II, Rule-4, which deals with the grant of quarry lease, whereby, it has been specifically mentioned that the grant of quarry lease shall be made by the Auction Process and therefore also,

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C/SCA/11080/2016 ORDER

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even otherwise as of now also, the grant of quarry lease is required to be made through auction.

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In view of the aforesaid, the petition stands dismissed.

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(A.Y. KOGJE, J)

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MAYA

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Hariom Marble, Partnership Firm v. State of Gujarat

Case brief

What is this about?

What did the court decide?

Hariom Marble, Partnership Firm v. State of Gujarat

Case brief

What is this about?

What did the court decide?

What the court decided

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