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Judgment
Vipul M. Pancholi,J
Heard learned advocate Ms. Namrata J. Shah for the petitioner and Learned Assistant Government Pleader Mr. Ronak Raval for the respondents.
In this petition, which is filed under Article 226 of the Constitution of India, petitioners have prayed that the concerned respondent authorities be
directed to grant the quarry lease permission and execute the mining lease agreement in pursuance of the LOI dated 19.03.2016 issued by the
respondent No.3 in favour of the petitioners in respect of the private NonÂagricultural land in question on certain terms and conditions.
Looking to the issue involved in the present petition, learned advocates appearing for the parties jointly requested that this petition be disposed of at
admission stage.
Learned Advocate for the petitioner submitted that the petitioner had succeeded in getting permission for conducting mining activities as per the
provision of Mines and Minerals (Regulation and Development) Act, 1957 and Gujarat Minor Mineral Concessions Rules, 2017. Pursuant to which,
LOI was executed on 19Â03Â2016. Under the LOI, two conditions viz. Environmental clearance and approved mining plan from the competent
authorities were necessary. It is submitted that mining of mineral, which the petitioners intended to, was limestone from the land bearing Survey
No.131/2 & 134/1 admeasuring 1.17.37 Hector situated at village Moya, Taluka & District Porbandar.
It is submitted that peculiar situation has arisen on account of the decision of the NGT with regard to the constitution of the Committee, which is
responsible for issuing necessary sanction and therefore, as time limit prescribed under the relevant rules for the period of two years is to expire, the
present petitions are filed.
Learned Advocate for the petitioner draws attention of this Court to relevant Rule No.29, wherein sub rule(3) provides for the Government to
issue an order in writing for grant of quarry lease to the holder of LOI upon following of certain conditions prescribed within a period of two years
from the date of commencement of the Rules. It is submitted that the Rules came into effect from 24Â05Â2017 and therefore, period of two years is
to expire on 23Â 05Â2019. However, on account of the condition as mentioned, the matter did not progress beyond the LOI and no order for grant of
quarry lease was passed in favour of the petitioner.
It is submitted that provisions itself make its clear that within two years of the Rules coming into effect, if necessary formalities like grant of order
for quarry lease is not passed, in that eventuality, the grant of quarry lease in favour of the petitioner would automatically forfeit. It is submitted that
for no fault of the petitioner, the petitioner would stand to loose grant of quarry lease, which is already decided in favour of the petitioner by the State
Government.
Learned Advocate for petitioner draws attention of this Court to the decision of this Court in Civil Application No. 1 of 2018 in Special Civil
Application No. 417 of 2017, where, in the case of major mineral an identical situation had arisen. The Division of Bench of this Court directed the
respondent to execute the mining lease without any further delay and upon the petitioner following certain conditions. He also refers to the decision of
this Court in Special Civil Application No. 7 of 2017 where, in identical set of circumstances, the Court had proceeded to issue the direction to execute
the lease deed on certain conditions prescribed.
It is submitted that the petitioner is also ready and willing to abide by the conditions as well as give an undertaking before this Court that till the
necessary formalities are not concluded, the petitioner will not enter into any mining activities.
On the other hand, learned Assistant Government Pleader appearing for the respondent authorities has opposed this petition and submitted that LOI
was executed after observing all the necessary requirements and on account of peculiar situation, which arose on account of time line mentioned in
Rule 29(3) of the Rules of 2017, the State has also undertaken necessary steps. It is submitted that if this Court is inclined to consider the case of the
petitioner on the basis of the similar orders passed by the Coordinate Bench of this Court in similar type of matters, necessary conditions may be
imposed.
Learned AGP is not in a position to dispute the fact that in similar type of matters, the Coordinate Bench of this Court has considered the case of
other similarly situated petitioners.
10.RuleÂ29 of the RulesÂ2017 reads as under:
“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 subÂrule(1), where the Government has communicated a prior written approval for grant of quarry lease or if a letter of
intent has been issued in writing by the Government to grant a quarry lease, before the commencement of these rules, the quarry lease shall be
granted in accordance with the provisions of subÂrules (3) to (6) (inclusive).
(3) The Government shall issue an order in writing for grant of a quarry lease to the holder of a letter of intent upon satisfaction of the following
conditions within a period of two years from the date of commencement of these rules, failing which the right of such an applicant for grant of quarry
lease shall be forfeited automatically and in such cases, the Government would not be required to issue any order for this purpose:
(a) fulfillment of the conditions of the prior approval or the letter of intent;
(b) the holder of letter of intent having obtained all consents, approvals, permits, no objections and the like as may be required under applicable laws
for commencement of mining operations;
(c) the holder of letter of intent having satisfied the conditions specified in CHAPTER VIII with respect to a mining plan (including the mine closure
plan);
(d) furnishing financial assurance as specified in rule 64:
Provided that upon receipt of a written application, stating reasons for non fulfillment of the conditions within a period of two years, the Government
may, for reasons recorded in writing extend the period of two years by an additional period of not more than six months:
Provided further that, save for the right to receive a quarry lease pursuant to the prior approval or the letter of intent, these rules shall apply to quarry
lease granted pursuant to the prior approval or the letter of intent.
10.1.Notification of 9th March, 2018 reads as under:
“9. In the said rules, in rule 29, for subÂrule (2), the following subÂrule shall be substituted, namely:Â
“(2) Without prejudice to subÂrule(1), where before the commencement of these rules, the Government has communicated a prior written
approval for grant of 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 subÂrules (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 nonÂagricultural 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.â€
11.Considering the aforesaid facts and circumstances and having satisfied that the petitioner has in his favour, LOI to grant of quarry lease and that is
also prior to the commencement of Rules, 2017, which are given effect from 24Â05Â2017 under SubÂrule(3). It is for the Government to issue an
order in writing for grant of quarry lease to the petitioner. It is only after such order, the petitioner is required to undertake necessary formalities and
provide necessary sanction/ clearances from the Authorities within a stipulated period. Upon failure to pass an order for grant of quarry lease, it would
not be possible for the petitioner to provide such necessary clearances and that too within a stipulated period, which otherwise lead to forfeiture of
their rights under the quarry lease.
12.In view of the aforesaid, it is directed that the Government shall pass an order in writing within a period of six weeks from the date of receipt of
this order, for grant of quarry lease to the petitioner in accordance with the Condition mentioned in the LOI with further condition as under:
(I)The petitioner shall file an undertaking before the District Collector, Porbandar within a period of two weeks from today to the effect that the
petitioner shall not commence or carry out any mining activity in the area in question till the environmental clearance and other conditions as mentioned
in the letter of Intent are fulfilled, as provided under the Mines and Minerals (Development and Regulation) Amendment Act, 2015 is obtained by the
petitioner.
The petition is allowed in the aforesaid terms. Direct service is permitted.