Partly allowed

Nathubhai Sangabhai Karotara v. State of Gujarat

Gujarat HC2 May 2022SCA/20271/2021

Case brief

AI extract

What is this about?

The Gujarat High Court quashed a communication declaring the petitioner's quarry lease application ineligible due to new 2017 Rules, holding it fell under a saved category per a government clarification. The matter was remitted to the Collector for fresh consideration within three weeks.

What did the court decide?

The communication dated 24.06.2021 declared the application ineligible is quashed and set aside. The matter is remitted to the Collector to decide the application fresh within three weeks.

Nathubhai Sangabhai Karotara Vs State of Gujarat — Company and Corporate | Gujarat HC (2022)

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C/SCA/20271/2021 ORDER DATED: 02/05/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 20271 of 2021

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NATHUBHAI SANGABHAI KAROTARA

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Versus STATE OF GUJARAT

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Appearance:

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MR MAULIK NANAVATI with MS.NAMRATA J SHAH(6534) for the Petitioner(s) No. 1

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DS AFF.NOT FILED (N) for the Respondent(s) No. 2,3,4 MS DHARITRI PANCHOLI, AGP for the Respondent(s) No. 1 NOTICE SERVED for the Respondent(s) No. 2,3,4

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CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

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Date : 02/05/2022

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ORAL ORDER

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The present petition has been filed under Article 226 of

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the Constitution of India seeking the following reliefs:-

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“ (A)YOUR LORDSHIPS be pleased to issue appropriate writ, order or direction, upon concerned respondent authority to issue the LOI in compliance of the order dtd. 20.6.2016 passed by respondent No 1 in Revision Application No. GMMCR / 102015 /948/ R-374 / RajkotAppeal r/w clarification dtd. 18.12.2018 issued by respondent no 1 authority, by quashing and setting aside the communication dated 24.06.2021 passed by respondent no.4, with respect to the same,

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(B) YOUR LORDSHIPS be pleased to direct the respondent no. 3 and 4 to pass an appropriate order to issue LOI, in compliance of the order dtd.

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Page 1 of 14

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C/SCA/20271/2021 ORDER DATED: 02/05/2022

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20.6.2016 passed by respondentNo 1 in Revision Application No. GMMCR / 102015 /948/ R-374 / RajkotAppeal r/w clarification dtd.18.12.2018 issued by respondent no 1 authority, by quashing and setting aside the communication dated 24.06.2021 passed by respondent no. 4 , with respect to the same, pending admission, hearing and final disposal of the Present petition;

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The brief facts, which giving rise to the present petition are stated thus:-

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2.1 The petitioner herein preferred an application for grant of quarry lease for the mineral sand stone for a period of 10 years under Rule 7 of the Gujarat Mineral Concession Rules, 1966, before the respondent Collector at Survey No.650 paiki, Village : Dhank, Taluka : Upleta, District Rajkot, admeasuring 2.00.00 Hectors.

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2.2 The respondent Collector by order dated 18.5.2015

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Page 2 of 14

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C/SCA/20271/2021 ORDER DATED: 02/05/2022

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rejected the said application for grant of quarry lease. The petitioner preferred an appeal before the Revisional Authority on 29.6.2015. The same came to be allowed by the Revisional Authority by an order dated 20.6.2016. The Revisional Authority remanded the matter back to the District Collector for fresh consideration of the application for grant of quarry lease preferred by the petitioner in light of the observations made in the order within a period of 45 days. The District Collector, despite specific direction to the Revisional Authority to consider the case of the petitioner within a time period of 45 days, did not take up the application of the petitioner for consideration and consequently did not pass any order thereon within 45 days from dated 20.6.2016. The Collector took up the case of the petitioner for consideration in the year 2018 and passed an order on 29.5.2018 declaring the application as having become ineligible in view of coming into operation of Rules, 2017, which declared that all applications for grant of quarry lease prior to the date of commencement of the Rules (24.5.2017) shall become ineligible. The petitioner therefore filed a writ-application being Special Civil Application No.5793

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Page 3 of 14

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C/SCA/20271/2021 ORDER DATED: 02/05/2022

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of 2021, praying for issuance of appropriate direction for consideration of the application for grant of quarry lease and passing of appropriate order by the respondent authority. This Court on 19.5.2021 pass the following order.

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“1. Heard learned advocate Ms.Namrata J. Shah

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for the petitioner and learned Assistant Government Pleader Mr.Dhawan Jayswal for the respondents.

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Learned Assistant Government Pleader Mr.Dhawan Jayswal, on instruction submits that the grievance of the petitioner will be considered and the authority will take appropriate decision within a period of two days from today considering the fact that time to execute the lease deed in case if the petitioner succeeds in getting the Letter of Intent expiring on 23.05.2021.

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In view of the aforesaid statement, learned advocate Ms.Namrata Shah seeks permission to withdraw this petition at this stage. However, she apprehends that in case if the authority fails to take a decision within the time limit, in that case, she will be rendered remedyless. Considering the submission, in case if the respondent fails to take a decision

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C/SCA/20271/2021 ORDER DATED: 02/05/2022

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in respect of the prayer made in this petition preferred by the petitioner, petitioner will be at liberty to make a mention or by filing the note for revival of this petition.

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At this stage, Mr.Dhawan Jayswal further submits that once the petitioner's limited grievance raised in this petition in respect of the grant of Letter of Intent is redressed, for any further relief, the petitioner may not pray for revival of this petition and may avail appropriate remedy by filing a fresh petition.

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With the aforesaid observation, the petition stands disposed of as withdrawn.”

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2.3 Again the respondent authority, more particularly the District Collector did not pass any order on or before 23.5.2021. However, on 24.6.2021 the Geologist, Rajkot, addressed a communication to the petitioner stating that no order has been passed by the Government for grant of quarry lease on or before 24.5.2017 and, therefore, in view of Rule 29(1)(2) of the Rules the application of the petitioner has become ineligible for consideration.

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C/SCA/20271/2021 ORDER DATED: 02/05/2022

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2.4 Aggrieved by the aforesaid communication dated 24.6.2021 which only informed the petitioner that his application has become ineligible for consideration and did not convey any order on the application, the petitioner filed an application seeking restoration of the Special Civil Application No.5793 of 2021. A Coordinate Bench of this Court vide order datd 22.10.2021 permitted the petitioner to withdraw the application for restoration of the main matter and allowed the petitioner to prefer a substantive petition for ventilating his grievance. It is in this backdrop that the petitioner has preferred the present writ-application.

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Heard the learned advocate Mr. Maulik Nanavati, appearing for Ms. Namrata J. Shah, learned advocate appearing on behalf of the petitioner and the learned AGP Ms.Dhartiri Pancholi appearing on behalf of the respondent State.

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Mr. Maulik Nanavati, the learned advocate appearing

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Page 6 of 14

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C/SCA/20271/2021 ORDER DATED: 02/05/2022

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for the petitioner submitted that the District Collector is required to consider the application of the petitioner for grant of quarry lease in light of the detailed and specific observations regarding eligibility and permissibility for obtaining the quarry lease made by the Revisional Authority in its order dated 20.6.2016.

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4.1 Mr. Nanavati, the learned advocate submitted that the

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District Collector committed an error in declaring the application of the petitioner as having become ineligible in light of Rule 29 of the Rules, 2017. He submitted that the District Collector was required to consider the case of the petitioner within 45 days, which time period would have lapsed prior to coming into operation of the Rules, 2017 and, therefore, Rules of 2017 would have no application to the case of the petitioner. Without prejudice to this argument, the learned counsel invited attention of the Court to communication dated 18.12.2018 addressed by the Industries and Mines Department, Government of Gujarat, clarifying that in all cases where the Revisional Authority has passed an order

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C/SCA/20271/2021 ORDER DATED: 02/05/2022

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on or before 24.5.2017, including an order of remand to the District Collector for fresh consideration of the application for grant of quarry lease which was previsiouly rejected by the District Collector, shall be treated as saved case and will have to be considered independent of Rule 29 of the Rules, 2017. The learned counsel therefore submitted that the order dated 29.5.2018 as well as the communication dated 24.6.2021 of the District Collector are bad in law.

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4.2 Mr. Nanavati, the learned advocate invited the attention of the Court to the orders passed by the Revisional Aurthority in 2016 in case of other parties containing directions identical to the one passed in case of the petitioner and drawn attention of the Court to Letters of Intent issued by the same District Collector in compliance to the orders and directions passed by the Revisional Authority. Referring to these documents, the learned counsel would submit that the action of the District Collector in treating the application of the petitioner as being ineligible by relying on Rule 29 of the Rules, 2017 is discriminatory and smacks of malafide. The petitioner,

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Page 8 of 14

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C/SCA/20271/2021 ORDER DATED: 02/05/2022

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according to the learned counsel appears to have been singled out for a disadvantageous treatment for no good reason when other persons similarly placed have been extended the benefit of the directions given by the Revisional Authority and granted Letter of Intent.

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Ms. Dharitri Pancholi, the learned AGP appearing for the respondent – State vehemently contested the application. She argued that the petitioner has an alternative remedy available to him of preferring an appeal before the Revisional Authority and for this reason alone the Court not entertain the present petition. On merits, she argued that the order of the Revisional Authority does not contain any specific direction to the District Collector to positively consider the case of the petitioner for grant of quarry lease and/or issue Letter of Intent. As regards communication dated 18.12.2018 addressed by the State Government issuing clarification relating to the manner of dealing with application wherein the revisional Authority has passed order prior to dated 24.5.2017, the learned AGP contended that the said communication is addressed to the

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C/SCA/20271/2021 ORDER DATED: 02/05/2022

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District Collector, Porbandar and, therefore, the same has to be read as being restricted for clarification to an individual case or particular district. According to her, the said communication cannot be said to be generic and applicable to all cases across the State. She lastly submitted that the Rules of 2017 has now come into force and as per Sub-rule (1) of Rule 29 the application of the petitioner having been received before 24.5.2017 and there being no formal order of the Government granting quarry lease, the application became ineligible for consideration and has correctly been so declared by the District Collector.

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It appears that the Revisional Authority by the order dated 20.6.2016 while allowing the revision application preferred by the petitioner, quashed and set aside the order passed by the Collector dated 18.5.2015 and specifically directed the Collector to decide the said application preferred by the petitioner within a period of 45 days in light of Government Resolution cited in the order itself. It appears that the Collector failed to decide the said application within a

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C/SCA/20271/2021 ORDER DATED: 02/05/2022

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stipulated time frame of 45 days in accordance with the order passed by the Revisional Authority and finally on 29.5.2018, the Collector rejected the application filed by the petitioner relying on Rule 29 of the Gujarat Minor Mineral Concession Rules, 2017. Sub-rule (1) of Rule 29 declares that all applications for grant of quarry lease prior to the date of commencement of the Rules i.e. 24.5.2017, shall become ineligible. In the opinion of the Court, the case of the petitioner was required to be considered by the District Collector within 45 days from 20.6.2016 when the Revisional Authority remanded the matter to the District Collector for fresh consideration. If the District Collector would have considered the case of the petitioner within the time frame specified by the Revisional Authority, then the decision would have come prior to 24.5.2017 i.e. when the Rules of 2017 came into operation. In any event, the Government of Gujarat has clarified by communication dated 18.12.2018 that all cases where the Revisional Authority has passed an order allowing the Revision including by way of remanding the matter back to the District Collector for fresh consideration, the same shall be

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C/SCA/20271/2021 ORDER DATED: 02/05/2022

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treated as saved cases i.e. to say that this cases shall have to be treated and considered independent of the provisions of Rules of 2017. Be that as it may, a Coordinate Bench of this Court in Special Civil Application No.5793 of 2021 recorded the statement on behalf of the respondent authority that the case of the petitioner shall be considered and that the authority shall take appropriate decision as regards the application of the petitioner for grant of quarry lease. In light of such statement made by the learned AGP, on instructions, the rejection of the application of the petitioner by the District Collector on 29.5.2018 as having become ineligible looses, its relevance and significance and pales into oblivion. The communication dated 24.6.2021, as rightly contended by the learned counsel for the petitioner, cannot be treated or considered as an order by the District Collector. It is in the nature of communication informing the petitioner that his application has become ineligible for consideration in light of Rules of 2017. It exhibits no application of mind and, therefore, cannot be classified as an order amenable to appeal under the Rules. This Court therefore does not find any force

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C/SCA/20271/2021 ORDER DATED: 02/05/2022

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in the objections raised by the respondent that the

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communication dated 24.6.2021 is in the nature of order and that the said order can be challenged by way of appeal thereby disentitling the petitioner to maintain the present petition.

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As observed herein in before, the case of the petitioner can be said to be saved case, more particularly, in view of the communication addressed by the Industries and Mines Department dated 18.12.2018. This Court in Special Civil Application No.16109 of 2019 has referred to the communication dated 18.12.2018 and relying upon the same treated the case of the said petitioner as being a saved case and directed the respondent authority to reconsider the application of the said petitioner for grant of quarry lease. Consequently, the communication dated 24.6.2021 by the District Collector closing the application of the petitioner as having become ineligible is quashed and set aside. The matter is remitted back to the Collector to decide the application of the petitioner afresh in light of the observations made by the

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C/SCA/20271/2021 ORDER DATED: 02/05/2022

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Revisional Authority in its order dated 20.6.2016 without being influenced by the Rule 29 of Gujarat Minor Minerals Concession Rules, 2017, preferably within a period of three weeks from the date of receipt of this order as a saved case.

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With the aforesaid direction, the present petition stands partly allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.

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(VAIBHAVI D. NANAVATI,J)

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K.K. SAIYED

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Nathubhai Sangabhai Karotara v. State of Gujarat

Case brief

What is this about?

What did the court decide?

Nathubhai Sangabhai Karotara v. State of Gujarat

Case brief

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What did the court decide?

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