KADARKHAN ABDULSHAKUR PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) SINCE the issues arising in both the petitions are same and parties to both the petitions are also same, with the consent of the parties, both these petitions are heard together and are disposed of by this common CAV Judgment.

(2.) IN both the above petitions the petitioner has challenged the legality, validity and propriety of the action of the respondent No.4 ­ the Collector of not complying with the order dated 24.7.,2012 passed by the respondent No.5 in Appeal No. 99 of 2011 and in Appeal No. 100 of 2011 whereby the respondent No.5 has quashed and set aside the orders dated 15.9.2011 and 12.9.2011 respectively passed by the respondent No.4 for taking fresh decision taking into consideration the documentary evidence produced by the petitioner in respect of ownership of the land bearing Survey No. 314 and 315 which are said to be a private lands. The prayers of the petitioner is to quash and set aside the order dated 20.10.2012 passed by the Collector, Bharuch, and also to stay the order of the Collector and also for directing the respondent No.4 to issue Royalty Passes in respect of quarry lease pending the hearing and final disposal of this petition. It is the case of the petitioner that he applied for lease for exploitation of minor mineral ­ Black Trap of Survey No. 315 of village Kantipada, which is also part and parcel of old Survey No. 53 part and the lease was granted by order dated 13.7.2001 to the petitioner for the area admeasuring 1 Acre and 48 ARE of Survey No. 315. Pursuant to the order passed by the Collector, the DILR measured the said piece of land through his Surveyor and raised boundary mark of the lease area and thereafter on 7.6.2002 the Mamlatdar has handed over the possession of the said land on lease for five years and thereafter on an application made by the petitioner the same was renewed. It is alleged that the petitioner has excavated the minor mineral outside his lease area to the extent of 162549 MT and 61003 MT respectively and, therefore, show cause notice dated 1.3.2011 was issued to the petitioner calling upon him to show cause as to why the fine of Rs.2,50,32,546/- and Rs. 93,94,462/- respectively should not be imposed upon the petitioner. Against the said show cause notice the petitioner appeared before the Collector and filed reply on 28.3.2011. The Collector, vide communication dated 16.8.2011 directed the petitioner to produce materials and thereafter vide order dated 15.9.2011 and 12.9.2011 respectively has held that the petitioner has exploited the area which is not demised to the petitioner and directed to pay fine of Rs.43,70,520/- and Rs.72,90,052/- respectively. Against the said order of Collector, the petitioner preferred Revision Applications. Since the Revision Applications were not heard, the petitioner preferred Special Civil Application No.18241 of 2011 and 18240 of 2011, which were disposed of by order dated 23.12.2011 on the statement made by the learned AGP that the Revision Application has been sent to the Director of Flying Squad for appropriate decision. It is alleged that inspite of the order passed by this Court, no notice was issued for fixing date of hearing of Revision and on contacting the respondent No.2, it was informed that the notice for fixing date would be issued shortly. But, no Notice was issued and on the contrary communication was issued stating that the petitioner has not complied with technicalities of filing the appeal. The Revision Application preferred by the petitioner has been registered as Appeal No.90 of 2011 and Appeal No. 100 of 2011 respectively and when the learned advocate of the petitioner inquired at the office of respondent No.5, it was informed that since more than 40 appeals are fixed for hearing, it is not possible to give any date of hearing to the petitioner in the month of April and the date in the next month would be communicated. Therefore, the petitioner again moved this Court by filing Special Civil Applications No. 4758 of 2012 & 4775 of 2012. Since the competent Authority fixed the date of hearing of Revision Application, the said petitions were disposed of as not pressed with liberty to approach this Court in case of any future difficulty. The respondent No.5, vide order dated 24.7.2012, partially allowed the said Revision Applications and quashed and set aside the orders impugned and the matter were remanded to the respondent No.4 for fresh decision after taking into consideration the documentary evidence produced by the petitioner. It is averred in the petition that the petitioner forwarded copy of the said order to the respondent No.4 and also submitted application to the respondent No.4 to issue Royalty Passes for mining activity in respect of revenue Survey No. 315 since there is no order in operation which restrains the petitioner from carrying out his lawful activities of quarry. However, the respondent No.4 is not responding to the said application and sitting tight over the same and neither fixing the date of hearing nor issuing Royalty passes to the petitioner.

(3.) HEARD learned Advocate Mr. Mangukia, appearing on behalf of the petitioner in both the petitions and learned A.G.P Mr. Rohan Yagnik, appearing on behalf of the . respondents. I have also gone through the papers produced before me and also the Affidavits filed on behalf of the respondents.