The petitioner one Shri Malabhai Shamlabhai Rabari - is before the Court alongwith Murlidhar Stone Industries, a partnership firm, through its partner, petitioner No.1, praying that:
8(A) This Hon'ble Court will be pleased to issue an appropriate writ, order or direction in the nature of Mandamus or any other appropriate writ, order or direction, declaring the impugned act, action, conduct and approach of the respondent No.2 in not approving, issuing and certifying the Royalty cum Delivery Challan Book and Gate-pass in respect of the subsisting quarry lease for excavating Minor Minerals Black Trep from the leased area, particularly described in Tabular Form statement in para No.2.3 of this petition, as illegal, null and void .
Paragraph 2.3 of the petition reads as under:
2.3. In the background of the aforesaid facts and circumstances, the petitioners now beg to point out that the petitioner No.1 has been granted a quarry lease for abstracting Black Trep in respect of the areas, which have been mentioned in detail in a Tabular statement.
The particulars of date of grant, period, renewal, measured area, survey Nos., location in respect of Minor Minerals have been reproduced in a Tabular form as follows:
S.No Name of applicant and address Mineral Name Taluka Village Survey No Area granted in Hectar Date of grant and re.
grant Period Date of Exe.& ren.
Exe.
Expiry Date Date of App.
Ren.
Mala Shamla Nagar, At Thoriyali, Taluka Sayla Black Trep Sayla Thoriyali 194 1.6188 30.3.95 to 21.3.06 10 10 28.6.95 to 2.5.07 27.6.05 to 27.6.15 2 Morli-
Dhar Stone Indus-
tries at Thoriyali, Tal.
Sayla Black Trep Sayla Nava Jasapar 61 `1.8 10.7.98 10 21.8.98 20.8.08
3. Mala Shamla at Thoriyali, Tal.
Sayla Black Trep Sayla Thoriyali 194 1.0768 21.5.98 10 16.9.98 15.9.08
4. Mala Shamla At Thoriyali, Tal.
Sayla Black Trep Sayla Thoriyali 194 0.9657 21.5.98 10 16.9.98 15.9.08
5. Morli-
dhar Stone Indus-
tries At Thoriyali, Tal.
Sayla Black Trep Sayla Thoriyali 194 0.7624 21.5.98 10 17.9.98 16.9.08 The petition as filed on 24.12.2008. The Court issued notice on 5.2.2009 returnable on 20.2.2009.
In response to the notice, one Jayesh Himmatlal Vayeda, an Assistant Geologist, Geology Science and Mining Department, District Surendranagar has filed affidavit in reply. Paragraph 5 of the affidavit in reply reads as under:
5. At the outset I respectfully say and submit that in the present petition the petitioner has raised grievance against the action of respondent No.2/Deponent for non issuance of triplicate pass book. I further say and submit that the respondent No.2 has not issued the gate pass in favor of the petitioner in view of the communication dated 30.03.2008 issued by the respondent No.1 and the petitioner could have challenged the aforesaid order/notice/communication dated 30.03.2008 issued by the respondent No.1 before the appellate authority or revisional authority under rule 38 of Gujarat Minor Minerals Rules, 1966 .
Paragraph 6 of the reply is also relevant for the purpose which reads as under:
6. I further say and submit that the respondent No.1 issued show cause notice under section 24 (1) (E) of the Minor Minerals (Development and Regulation) Act 1957 to the petitioner on 30.03.2008 by R.P.A.D. in which it is specifically mentioned that the petitioner is carrying out the activity of the excavation outside the leased area and by which the petitioner has excavated 45,000 metric tone of black trap unauthorizedly and for which Rs.40,50,000/- is required to be recovered from the petitioner for illegal excavation. It is also mentioned in the aforesaid communication dated 30.03.2008 that the petitioner has transported the unauthorized excavated black trap by using royalty triplicate pass book and therefore committed breach of section 4 (1) and section 4 (1) A of the Minor Minerals (Development and Regulation) Act, 1957 and for which penal action is required to be taken against the petitioner under section 21 (1) and 21 (2) of the Act. I further say and submit that by using the aforesaid communication the respondent No.1 directed the petitioner to make the payment of Rs.40,50,000/-. I further say and submit that the Commissioner, Geology, Science and Mining Department issued a notification on 27.09.2005 in which it is specifically and categorically mentioned that the triplicate pass book should be approved and certified only after the payment of due amount and advance royalty is paid by the lessee. It is also mentioned in the aforesaid notification that in case of the payment is due from the lessee, the Mining should be stopped and the triplicate pass book should not be issued to the lessee whose payment are due. A copy of the aforesaid communication dated 30.03.2008 and notification dated 27.09.2005 is annexed herewith and marked as ANNEXURE-R-I collectively . (emphasis supplied).
Learned advocate for the petitioners submitted that on 24.3.2008 a surprise inspection was held at the excavation site, on 26.3.2008 measurements were taken, on 30.3.2008 criminal complaint was filed at Sayla Police Station being CR No.II-3035/08.
Learned advocate for the petitioners submitted that against the complaint the petitioners have already approached this Court by filing Special Criminal Application No.674 of 2008 wherein Rule is issued and stay of further proceedings is granted. He submitted that the notification dated 27.9.2005 cannot be resorted to because the amount is yet to be determined (adjudicated). He submitted that the amount levied from the petitioner is Rs.40,50,000/- which is not adjudicated upon and is not determined by the authorities by following the procedure required under the law. He therefore requested that the petition requires to be entertained by this Court and the reliefs as prayed for are required to be granted.
Taking into consideration the availability of alternative remedy of filing an appeal wherein the issue of the excavation from the area which was never the subject matter of lease granted to the petitioner and other factual questions can be gone into and taken into consideration the fact that the petition is filed directly before this Court, the same is not entertained and the same is dismissed. Notice is discharged. No order as to costs.
(Ravi R. Tripathi, J.) ...
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