Anilbhai Becharbhai Italia vs State of Gujarat and Others

Rajesh H. Shukla, J.—Rule. Learned AGP Shri Bharat Vyas waives service of notice of Rule for Respondent No. 1. The present petition has been filed by the petitioner under Articles 14, 19(1)(g), 21 and 226 of the Constitution on the grounds stated in the petition for the following prayers:

(A) Your Lordships may be pleased to issue a writ of mandamus, or any other appropriate writ, order or direction, and thereby hold and declare that the guideline Nos. 1 and 6 which are mentioned in the Government Resolution No. PL/2011/HC/-14(6)/CHH dated 27.12.2012 is illegal and violative and the same is not in conformity with the tender agreement of the block No. 2 of mauje Shitwada, Taluka Prantij and further the respondents be directed not to implement the condition Nos. 1 and 6 of the Government Resolution No. PL/2011/HC/-14(6)/CHH dated 27.12.2012 to the block of the petitioner bearing No. 2 of mauje Shitwada, Taluka Prantij.

(AA) Your Lordships may be pleased to quash and set aside the order passed by the respondent no. 2 dated 03.04.2013 whereby the work order which has been executed in favour of the petitioner for block No. 135 and 136 of mauje Shitwada, Taluka Prantij has been cancelled.

(B) Pending the hearing and final disposal of this petition Your Lordships be pleased direct the respondents not to implement the aforesaid two conditions Nos. 1 and 6 of the Government Resolution No. PL/2011/HC/-14(6)/CHH dated 27.12.2012 to the block of the petitioner bearing No. 2 of mauje Shitwada, Taluka Prantij.

(BB) Your Lordships may be pleased to stay the implementation, execution and operation of the order dated 03.04.2013 passed by the respondent no. 2 and further be pleased to direct the respondents to permit the petitioner to continue with the mining activity as per the work agreement dated 21.02.2012 for block No. 135 and 136 of Mauje Shitwada, Taluka-Prantij.

(C) Such other and further relief''s as Your Lordships may deem just, fit and equitable in the interest of justice be granted.

Heard learned Senior Counsel Shri Shalin Mehta appearing with learned Advocate Shri Apurva Kapadia for the petitioner and learned AGP Shri Bharat Vyas for respondent No. 1.

Learned Advocate Shri Apurva Kapadia has referred to the papers and tried to submit that the petitioner has been granted valid lease, which is to expire in July, 2013. However, for the reasons stated in the impugned order dated 03.04.2013 produced at Page No. 131, the lease has been terminated, which leads filing of the present petition.

Learned Advocate Shri Apurva Kapadia after making submissions has stated that the impugned order may be set aside and the petitioner may be permitted to continue his activity of mining pursuant to the lease till July, 2013 when the lease would expire otherwise also. He submitted that the petitioner has made huge investment and termination of lease would cause huge economic loss and therefore prejudice to the petitioner he may be permitted to continue his mining activity till July, 2013.

Learned AGP Shri Bharat Vyas submitted that the lease has been terminated after providing sufficient opportunity, for which the reasons stated are in detail in the affidavit-in-reply supported by other documents and impugned order. He has referred to the affidavit-in-reply and pointedly referred to the fact that the petitioner has been excavating the minerals beyond the time prescribed and he has been found doing such activity in breach of the conditions of the lease on two occasions i.e. on 31.01.2013 and thereafter on 05.02.2013, which is stated in Para No. 15 of the said affidavit-in-reply. He has also stated that in fact notice was also issued and after providing an opportunity to the petitioner, the impugned order has been passed. Hence, the present petition cannot be entertained.

Learned AGP Shri Vyas further submitted that an alternative remedy is also provided under Rule 65 of the Gujarat Minor Mineral Concession Rules, 2010 by approaching the Authority, and the present petition cannot be entertained even on that count. He has also referred to the guidelines framed by the Government by issuing Resolution/Circular and submitted that the Hon''ble Division Bench of this High Court has passed an order for preservation of the environment in the State of Gujarat. The principles which have been laid down in Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 are also to be considered in this background. He further submitted that the principles laid down in the aforesaid Act for preservation of environment of the State of Gujarat have been violated, therefore the petition cannot be entertained and the same may be rejected. Learned AGP Shri Bharat Vyas has also referred to the said Resolution/Circular provided at Annexure-F in detail and submitted that the present petition may be rejected.

In view of these rival submissions, it is required to be considered whether present petition can be entertained or not.

As it appears that the petitioner has been granted valid lease subject to certain terms and conditions, and the mining activity can be carried out only in terms of such conditions/guidelines. Admittedly, the learned AGP Shri Vyas has stated referring to the affidavit-in-reply supported by other documents including the Rojkam that the petitioner has violated such terms and conditions on two occasions and therefore the impugned order came to be passed.

Therefore, there is no substance in the contentions raised by the learned Advocate Shri Apurva Kapadia with regard to the merits of the matter and particularly when the guidelines have been framed by the Government pursuant to the observations made by the Hon''ble Division Bench of this Court for the environmental issues. The mining activity can be restricted including the timing of such activity.

The present petition cannot be entertained, however, as an by way of indulgence, since learned Advocate Shri Kapadia has stated that the lease which has been validly granted would remain in force till July, 2013 and therefore if the activity is permitted till July, 2013 subject to any condition, which would mitigate the loss or the hardship. Therefore, only on this condition, the present petition is allowed, as and by way of indulgence, setting aside the impugned order dated 03.04.2013, by which lease has been terminated. However, it will be subject to the following conditions:

That the petitioner shall file an undertaking before this Court within two days specifically stating that he will not again commit any breach of terms and conditions of the lease granted;

That the petitioner shall maintain discipline including with regard to timing for mining;

That the petitioner shall also follow the guidelines framed by the Government in Circular dated 22.01.2013.

It is also clarified that this is only as and by way of indulgence without laying any kind of precedent or should not be treated as considered or accepted any contentions on merits of the matter.

With the aforesaid observations and directions, the present petition stand allowed to the aforesaid extent. Rule is made absolute accordingly. Direct Service is permitted.