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Judgment
J.B.Pardiwala, J
1 By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:
“(a) This Hon'ble Court may be pleased to admit and allow this petition;
(b) This Hon'ble Court may be pleased to issue appropriate writ, order or direction to the respondent authorities of executing an agreement for lease of
the remaining area i.e. H-3.72.00 at village Chichode, Taluka Nizar, District Tapi in favor of the petitioner, as per the original tender proceedings of
the year 2015.
(c) This Hon'ble Court may be issue appropriate writ, order or direction for quashing and setting aside the action of the respondent authorities of not
executing the lease of entire area of H-6-00-Aare-00-sq. meters situated at village Chichode, Taluka Nizar, District Tapi in favor of the petitioner in
view of the original tender proceedings of the year 2015.
(d) This Hon'ble Court may be pleased to issue appropriate writ, order or direction for quashing and setting aide the notice inviting the tender published
in daily news paper dated 31.02.2020.
(e) Pending admission, final hearing and disposal of this petition, stay the further proceedings in respect of the notice inviting the tender published in
daily news paper dated 31.02.2020.
(f) Grant such other and further relief as thought fit in the interest of justice.â€
2 The facts giving rise to this application may be summarised as under:
2.1 This litigation has something to do with mining lease in the area admeasuring six Hectares situated opposite the survey No.1, 92, Gamtal of Tapi
river situated at the villages Kukarmunde and Chichode respectively, Taluka Nizar, District Tapi.
2.2 On 22nd April 2015, an online auction was held in connection with total three blocks of land referred to and described above.
2.3 On 4th August 2015, a letter of intent came to be issued to the writ applicant. It appears that the writ applicant, at that point of time, had to come
before this Court by filing the Special Civil Application No.11143 of 2015. The cause of action to come before this Court in the year 2015 was a
communication dated 11th June 2015 issued by the Assistant Geologist, Tapi asking the writ applicant to deposit a sum of Rs.1,67,68,840/- within thirty
days. While rejecting the said writ application, a Coordinate Bench of this Court passed the following order:
“The petitioner has opposed communication dated 11.06.2015 issued by the Assistant Geologist, Tapi asking him to deposit a sum of
Rs.1,67,68,800/- within 30 days. It appears that the petitioner had taken part in e-tender exercise undertaken by the authorities for giving sand mining
lease. His offer was accepted. The authorities therefore, demanded lease for a period of two years in terms of tender conditions. The said
communication demonstrated that he had previously asked for adjustment of deposit of Rs.83,80,000/-. However, the authorities conveyed under the
impugned communication that such an adjustment cannot be made.
Learned counsel for the petitioner submitted that the petitioner is prepared to deposit the entire amount as soon as he gets environment clearance
certificate. However, he is unable to point out any such condition in tender form. The term which is not part of the tender form cannot be super-
imposed after tender is accepted. It would amount to changing the terms of tender and therefore, wholly impermissible.
Under the circumstances the petition is dismissed.â€
2.4 The Collector, vide his order dated 29th March 2016, cancelled the blocks granted to the writ applicant.
2.5 The writ applicant being dissatisfied with the order passed by the Collector preferred a revision application before the State Government. The
Revision Application No.850 of 2016 filed by the writ applicant came to be allowed vide order dated 13th October 2016. The State Government
permitted the writ applicant to continue with the blocks on the condition that the writ applicant shall deposit an amount of Rs.1,67,68,800/- within a
period of thirty days.
3 The Collector passed an order dated 23rd March 2017 calling upon the writ applicant herein to deposit the entire amount as directed by the State
Government.
4 On 8th May 2017, the mining application came to be approved.
5 The Collector, Tapi passed an order dated 9th May 2017 for execution of the agreement as the writ applicant had deposited the entire amount
referred to above on 21st April 2017.
6 It is not in dispute that the writ applicant gave his consent on his own free will and volition for lesser amount of quantity of sand.
7 The Collector, Tapi, vide Darkhast dated 23rd May 2017 requested the Commissioner for change of metric tonne for excavation of ordinary sand.
8 The Deputy Collector, Industries and Mines Department, passed an order dated 4th September 2017 curtailing the area of lease from six Hectares
to two Hectares and 28 Aare. This quantity of sand was reduced from 24,66,000 metric tons to 9,34,090 metric tons.
9 On 5th November 2018, the writ applicant executed a Quarry lease for a period of five years for the area admeasuring two Hectares and 28 Aare.
10 On 2nd February 2019, the writ applicant preferred an application for the balance area of 3.72 Hectares.
11 The Geologist, Tapi, vide Darkhast dated 30th September 2019 informed the writ applicant that the balance area admeasuring three Hectares and
odd had been given a new block and the same would be put to auction once again.
12 In such circumstances referred to above, the request of the writ applicant with regard to the balance area came to be rejected. The Collector, Tapi
issued a Tender notice dated 31st January 2020 in the daily newspaper namely Gujarat Samachar (Surat edition) inviting bids for the quarry lease of
the remaining area admeasuring 3.72 Hectares.
13 In such circumstances referred to above, the writ applicant came before this Court by filing the present writ application.
14 A Coordinate Bench of this Court to which one of us (J.B. Pardiwala, J.) was a party while issuing notice passed the following order:
“Manifold contentions have been raised by Ms.Kruti M. Shah, the learned counsel appearing for the writ applicant. However, the disturbing feature
of this matter is the impugned notice dated 31st January 2020 wherein it has been stated that as the blocks fall within the Scheduled Castes area, only
those persons who are members of the Scheduled Castes and residing within the Scheduled Castes area will be entitled to offer their bids online.
Prima facie, the impugned notice further conveys that whoever may apply, but, ultimately, only the members of the Scheduled Castes residing within
the Scheduled Castes area will be granted the contract for quarry lease. Prima facie, such a notice could be termed as violative of the provisions of
the Constitution, more particularly, Article 15 of the Constitution of India.â€
● SUBMISSIONS ON BEHALF OF THE WRIT APPLICANT:
15 Ms. Kruti M. Shah, the learned counsel appearing for the writ applicant vehemently submitted that the action on the part of the respondents in
curtailing the area of mining at the time of execution of the lease deed in favour of the writ applicant could be termed as arbitrary and illegal. It is
argued that the authorities acted contrary to the terms and conditions of the Tender proceedings.
16 It is also argued that the authorities could not have changed or altered the area or the quantity of the ordinary sand only account of change of the
royalty rate at a later stage.
17 Ms. Shah laid much stress on the fact that his client deposited a sum of Rs.1,67,68,800/- for the entire land admeasuring six Hectares and not for
two Hectares.
18 Ms. Shah in the last submitted that his client is very much keen and interested to participate in the fresh Tender proceedings, but, he is not able to
do so because only the members of the Scheduled Castes can participate, as the mining blocks are falling within the Scheduled Castes area.
According to Ms. Shah, such a condition, in the Tender notice, could be termed as violative of Article 15 of the Constitution of India.
19 In such circumstances referred to above, Ms. Shah prays that there being merit in this writ application, the same be allowed and the reliefs as
prayed for may be granted.
● SUBMISSIONS ON BEHALF OF THE RESPONDENTS:
20 Ms. Manisha Lavkumar Shah, the learned Government Pleader has vehemently opposed this writ application. Ms. Shah would submit that the writ
applicant cannot redress any grievance with regard to the area of mining because the writ applicant on his own free will and volition agreed to enter
into an agreement with respect to two Hectares plus area. Having once agreed to the same, the writ applicant now cannot turn around and say that he
is entitled to undertake the mining operation in the area admeasuring six Hectares. Ms. Shah pointed out that the balance area has been given
altogether a new block and it is this new block which is sought to be put to auction. Ms. Shah would submit that the Tender notice is in no manner
violative of Article 15 of the Constitution of India. It is pointed out that Rule 4 of the Gujarat Minor Mineral Concession Rules, 2017 mandates that the
blocks which fall within the Scheduled Castes area are first required to be granted to those persons who are members of the Scheduled Castes and
residing within the Scheduled Castes area. It is only if the same is not materialized than to other persons as per sub-Rule (5) of Rule 4 of 2017 Rules.
21 Ms. Shah also invited the attention of this Court to the Gujarat Provisions of the Panchayats (Extension to the Scheduled Areas) Rules, 2017.
22 In such circumstances referred to above, Ms. Shah, the learned Government Pleader submitted that there being no merit in this writ application, the
same be rejected.
● ANALYSIS:
23 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our
consideration is whether the writ applicant is entitled to any of the reliefs as prayed for in this writ application.
24 At the outset, we reject the vociferous submission of Ms. Shah, the learned counsel appearing for the writ applicant that her client is entitled to
undertake mining operations in all blocks admeasuring six Hectares. It is not in dispute that the writ applicant on his own free will and volition agreed
to enter into the agreement for the purpose of mining in the area admeasuring two Hectares and odd. On the basis of the same, a quarry lease dated
5th November 2018 was executed for a period of five years for the area admeasuring H-2.28-Aare-00 sq. mtrs. At the time of execution of the lease
deed, no objection of any nature was raised by the writ applicant. It is not the case of the writ applicant that he did not execute the lease deed. It is not
the case of the writ applicant that he was forced to enter into the lease deed dated 5th November 2018. At the most, the writ applicant is entitled to
claim refund of a requisite amount with interest from the State Government as the area of mining has now been reduced. We take notice of the fact
that the mining operations in the land admeasuring around three Hectares has been given a new block and this new block is now sought to be put to
auction.
25 We do not find any merit even in the second contention of the learned counsel appearing for the writ applicant that the Tender notice is violative of
Article 15 of the Constitution of India. At this stage, we may look into the Gujarat Minor Mineral Concession Rules, 2017, more particularly, Rule 4,
which reads thus:
“4. Grant of quarry lease-.
(1) A quarry lease shall be granted by the Government through an electronic auction process as prescribed herein. Any person submitting a bid for
grant of a quarry lease shall be required to fulfil the eligibility conditions prescribed in Schedule II. The terms and conditions specified in Schedule II
shall be used only for the purposes of determination of eligibility of & bidder and the successful bidder shall be decided solely on the basis of financial
bids submitted by the eligible bidders.
(2) The following shall be the pre-requisites for conduct of an auction for grant of a quarry lease, namely: (a) evidence of mineral resources shall have
been established in the proposed quarry lease area in accordance with the parameters prescribed in Schedule I;
(b) the quarry lease area shall be identified and demarcated using differential global positioning system and shall have a topographic and geological
map prepared using total station. The extent of the area so demarcated shall include the area required for all activities falling under the definition of a
“mine†as defined in clause 0) of sub-section (1) of section 2 of the Mines Act 1952 (35 of 1952), including non-mineralised area;
(c) the quarry lease area so demarcated shall classified into forest land, land owned by the Government and land not owned by the Government and
any Scheduled Area comprised therein shall also be identified;
(d) an electronic auction portal Which meets the minimum technical and security requirements as specified in the guidelines for compliance to quality
requirements of e-Procurement Systems issued by the Standardisation Testing and Quality Certification Directorate, Department of Information
Technology, Ministry of Communications and Information Technology, Government of India or any other certification/guidelines as specified by the
Government shall have been established;
(e) the price per metric tonne of the mineral(s) shall have been published by the Government at least once in the twelve months immediately preceding
the auction;
(f) the Government shall provide details of the areas over which & quarry lease is proposed to be granted in the following manner, namely:
(i) in two daily newspapers circulating in such area, of which one shall be in the regional language;
(ii) in the local language in the Panchayat, Municipality or Municipal Corporation, as the case may be and in the offices of the District Collector, the
Sub-divisional Magistrate and the Tehsil, as applicable;
(iii) on the website of the Government;
(iv) on the electronic auction portal; and
(g) if the area over which a quarry lease is proposed to be granted comprises of a Scheduled Area, the prior approval of the gram sabha for such
grant shall have been obtained.
(3) In case of an auction with respect to a Scheduled Area, the Government may, subject to the provisions of the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and the provisions of the Panchayat (Extension to the Scheduled Areas) Act,
1996, as applicable, identify the areas, excluding areas where a mineral concession is subsisting, in which evidence of mineral resources has been
established in accordance with the parameters prescribed in Schedule 1. The following conditions would apply to quarry leases granted through an
auction in accordance with this Chapter in such identified areas:
(a) A quarry lease in the Scheduled Area identified pursuant to this sub- rule shall:
(i) be granted only to a bidder who belongs to a scheduled tribe and is an inhabitant of the Scheduled Area; and
(ii) only be transferable to a person who belongs to a scheduled tribe and is an inhabitant of the Scheduled Area.
(4) The Government may, if it considers expedient, prescribe differential terms including with respect to payment and eligibility requirements for
quarry leases granted pursuant to auctions conducted in Scheduled Areas identified pursuant to sub-rule (3).
(5) If one attempt to auction a quarry lease pursuant to sub-rule (3) and sub-rule (4) do not result in the grant of a quarry lease, then the Government
shall conduct an auction in which persons other than those specified in clause (a) of sub-rule (3) may also participate, subject to the other conditions
specified in these rules. For the purposes of this sub-rule:
(a) the auction subsequent to the first attempt may be for the same area or an enlarged or reduced area, as the Government may deem fit;
(b) the differential terms specified pursuant to sub-rule (4) shall not be applicable to such auction; and
(c) the quarry lease granted pursuant to such auction shall be transferable to any person in accordance with the provisions of CHAPTER XI.
(6) Restriction to Grant Lease in Certain Areas No quarry leases for building limestone shall be granted in areas containing more than eighty five per
cent CaCO3 except in areas of less than four hectares containing isolated pockets of limestone.
(7) 2[Any person, owning more than fifty per cent. Of the mineral block demarcated for auction or the person who has written consent to surface
rights for more than fifty per cent. Of such demarcated mineral block upon which the Government has conducted electronic auction under these rules,
which shall include auction carried out under sub-rule (8) of this rule, shall have Right of First Refusal upon completion of the auction process in
accordance with clause (e) of sub-rule (8) of this rule:
Provided that, if any person uses his right of,f1rst refusal he shall be treated as the “Preferred Bidder†and has to fulfill all the conditions laid
down under these rules as well as the Tender Document to be declared as the “Successful Bidderâ€.
(8) In case, if an area over which quarry lease is proposed to be granted, is owned by any person (“1andownerâ€), the Government may conduct
an auction in accordance with rule 7 and other provisions of these rules, for grant of & quarry lease over the land owned by the landowner: Provided
that, if the Government considers such auction as expedient in public interest, it shall conduct the auction process subject to the following provisions,
namely:
(a) The Government shall, on receipt of a written application from the landowner carry out Reconnaisaance Survey (G4) in accordance with these
rules on the land owned by the landowner.
(b) Only in case of a favorable Reconnaisaance Survey (G4) report of the mineral resource(s) in the land owned by the landowner pursuant to clause
(a) above, the Government shall carry out further exploration to establish evidence of mineral resource(s) in accordance with the parameters
prescribed in Schedule I of these rules.
(c) The Government may initiate an electronic auction for grant of quarry lease in the manner specified in these rules in land owned by the landowner
where evidence of mineral resources has been established in accordance with the parameters prescribed in Schedule I and the Government may
include other contiguous mineral bearing land owned by the Government while demarcating the mineral block for such auction for grant of quarry
lease.
(d) The person who has written consent to surface rights of more than fifty per cent. Of such demarcated mineral block (not including the contiguous
area of Government land added by the Government), shall have such rights for the entire period of the proposed quarry lease.
(e) In case of auction conducted pursuant to clause (c) above, within & period of thirty days from the date of conclusion of auction held for such
quarry lease, the person entitled pursuant to sub-rule (7) of this rule and clause (d) above may opt to pay the amounts quoted by the relevant preferred
bidder during such auction process under written intimation to the Government, alongwith all such payments required to be made by the relevant
preferred bidder. Upon receipt of such intimation and other payments, the aforesaid landowner or person having access rights, as aforesaid, shall be
considered to be the preferred bidder and the bid security, performance security and upfront payment, if any paid by the erstwhile preferred bidder,
shall be returned.â€
26 We may also look into the Gujarat Provisions of the Panchayats (Extension to the Scheduled Areas) Rules, 2017. Rule 35, relevant for our purpose,
reads thus:
“35. Quarry Lease for Minor Minerals.
(1) The Competent Authorities, under the Gujarat Minor Mineral Concession Rules, 2010, as amended from time to time, shall award quarry lease for
minor mineral falling under the Scheduled Area, after taking prior recommendations with the Gram Sahha.
(2) The applicant shall obtain environmental clearance in accordance with the provisions of the Environmental (Protection) Act, 1986 and the rules and
notifications issued thereunder, including the Environment Impact assessment Notification, 2006, as amended for time to time.
(3) The Gram Sabha may suggest omission or insertion of any conditions in such Environment Clearance, which may be considered by the concerned
authorities while considering the application for grant for Environmental Clearance.
(4) The contribution collected under the District Mineral Foundation (DMF), in the Scheduled Area, shall be used for the purposes enumerated under
the Gujarat District Mineral Foundation Rules, 2016 in the Scheduled Area only.
(5) The District Mineral Foundation (DMF) shall furnish the Annual Report of the work undertaken in each village in Schedule Area to the Gram
Sabha.
(6) In case of any report of illegal mining activities in the schedule area, the Gram Sabha shall communicate the same to the Competent Authority.
(7) The Competent Authority may inquire in to the said report and intimate the actions taken to the Gram Sabha.
(8) In case of conflict between the provision of the present rules and the provisions of the Environment (Protection) Act, 1986 and Rules and
Notifications issued there under, including the Environment Impact Assessment Notification, 2006, as amended from time to time, the later shall
prevail.â€
27 Thus, the statutory rules referred to above provides that the blocks which fall within the Scheduled Caste areas are first required to be granted to
those persons who are members of the Scheduled Caste and residing within the Scheduled Castes area. As per Rule 35 of the Gujarat Provisions of
the Panchayats (Extension to the Scheduled Areas) Rules, 2017, the competent authorities, under the Gujarat Minor Mineral Concession Rules, 2010,
as amended from time to time, shall award quarry lease for minor mineral falling under the scheduled castes areas, after taking prior recommendations
with the gram sabha.
28 In view of the aforesaid discussion, we find no merit in this writ application,
29 Before parting with this order, we clarify that it shall be open for the writ applicant to prefer an appropriate application addressed to the concerned
authority seeking refund of a requisite amount with simple interest at the rate of 6.5% in view of the fact that the area of mining operations has been
been curtailed from six Hectares to 2.28 Hectares. If any such application has been preferred by the writ applicant, the same shall be processed at the
earliest and the appropriate amount of refund shall be calculated and disbursed with interest as referred to above within a period of six weeks from the
date of receipt of such application.
30 In the result, this writ application fails and is hereby rejected.
31 In view of the disposal of the main matter, the connected civil application also stands disposed of.