Gujarat High Court
Shree Ganpatbhai Ambalal Ode vs State Of Gujarat on 16 November, 2021
Bench: Sangeeta K. Vishen
C/SCA/16426/2021 ORDER DATED: 16/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16426 of 2021
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SHREE GANPATBHAI AMBALAL ODE
Versus
STATE OF GUJARAT
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Appearance:
MS JOLLY NISHIT SHAH(3993) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4,5
MR KRUTIK PARIKH AGP (99) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 16/11/2021
ORAL ORDER
1. By this petition, the petitioner has challenged the order dated
30.01.2021 passed by the Collector, Surat as well as the order dated
04.07.2003 passed by the office of the Collector, Surat.
2. The brief facts of the case are that the petitioner had filed an
application dated 27.02.2003 before the Collector, Surat to get the
quarry lease for the land admeasuring 1.00.00 hector area at the
bank of Tapi river. The said application was filed by the office of the
Collector on the ground that the petitioner was required to produce
the documents; however, the petitioner did not produce the
documents and it was construed that the petitioner is not interested
in having the land. Being aggrieved, the petitioner had preferred an
appeal before the Additional Director (Appeals), Geology & Mining
Department, Gujarat State, who, vide order dated 16.02.2004 had
cancelled the order dated 04.07.2003 and remanded the matter
back to the Collector for fresh decision. The matter was heard by
the office of the Geologist, Geology and Mining Department, who,
vide order dated 30.01.2021, has rejected the application under the
provisions of Rule 29(1) of the Gujarat Minor Minerals Concession
C/SCA/16426/2021 ORDER DATED: 16/11/2021
Rules, 2017 (hereinafter referred to as the "Rules of 2017").
3. Being aggrieved, the petitioner has filed the present writ
petition with the aforementioned prayers.
4. Pertinently, the grievance raised by the petitioner is the order
dated 30.01.2021 as well as the order dated 04.07.2003 passed by
the office of the Geologist, Geology & Mining Department. It is also
the grievance of the petitioner that the Geologist, Surat has
sanctioned the application made on 27.02.2003 before the Collector
and given the quarry lease for the land admeasuring 1.00.00 hector.
As can be discern out from the prayers prayed for in the present writ
petition, the petitioner is also seeking issuance of the Letter of
Intent, as has been issued in the case of the other villagers.
5. It is undisputed that the order dated 30.01.2021 has been
passed under the provisions of the Rules of 2017. At this stage,
provisions of Chapter-XIII titled "Revision" of the Rules of 2017 are
worth referring to. For ready reference, sub-rule (1) and (2) of Rule
50 of the Rules of 2017 are reproduced hereinbelow:-
"(1) Any person aggrieved by any order made by any
authority in exercise of the powers conferred on it
under these rules or the non-passing of any order by
any authority in exercise of the powers conferred on it
under these rules within the time prescribed therefor
may, within two months of:
(a) the date of communication of the order to him;
or
(b) the date on which the time period for passing
such order expired,
apply to the Government in triplicate in the form specified in
Form U for revision of the order or passing of an order, as the
case may be:
Provided that the State Government may of its own motion
also call for any record of proceeding and revise any order
made by such authority.
C/SCA/16426/2021 ORDER DATED: 16/11/2021
(2) Any person aggrieved by any order made by the
Government under these rules or non-passing of any order
by the Government within the time prescribed therefor may,
within two months of:
(a) the date of communication of the order to him;
or
(b) the date on which the time period for passing
such order expired,
apply to the Committee to be constituted by the Government
in triplicate in the form specified in Form U for revision of the
order or passing of an order, as the case may be.
Provided that the Committee may of its own motion also call
for any record of proceeding and revise any order made by the
Government."
5.1. Sub-rule (1) of Rule 50 of the Rules of 2017 provides that any
person aggrieved by any order made by any authority in exercise of
the powers conferred on it under these rules or the non-passing of
any order by any authority in exercise of the powers conferred on it
under these rules within the time prescribed within two months from
the date of the communication of the order to him or apply to the
Government in the form specified in Form - U for revision of the
order or passing of an order, as the case may be.
5.2. Sub-rule (2) of Rule 50 provides that any person aggrieved by
any order made by the Government, may apply to the Committee to
be constituted by the Government.
6. Therefore, there are two remedies provided in succession
under the Rules of 2017 to the petitioner to challenge the order and/
or to ventilate the grievance.
7. It is well settled proposition of law that under Article 226 of
the Constitution of India, considering the facts of the case, the High
Court has discretion to entertain or not to entertain the petition. In
the celebrated judgment of the Apex Court in the case of Whirlpool
C/SCA/16426/2021 ORDER DATED: 16/11/2021
Corporation vs. Registrar of Trade Marks, Mumbai reported in
(1998)8 SCC 1, the Apex Court has held and observed that
availability of the alternative remedy is not to operate as a bar but,
the High Court has imposed upon itself, certain restrictions except in
three contingencies, namely, where the writ petition has been filed
for enforcement of any of the fundamental rights or where there has
been a violation of the principles of natural justice or where, the
order or proceedings are wholly without jurisdiction or the vires of
the Act is challenged. In the present case, the petitioner has not
been able to point out any of the contingencies available to him for
entertainment of the writ petition by this Court. Relevant paragraph
15 of the said judgment reads thus:-
"15. Under Article 226 of the constitution, the High
Court, having regard to the facts of the case, has a
discretion to entertain or not to entertain a writ
petition. But the High Court has imposed upon itself
certain restrictions one of which is that if an effective
and efficacious remedy is available, the High Court
would not normally exercise its jurisdiction. But the
alternative remedy has been consistently held by this
Court not to operate as a bar in at least three
contingencies, namely, where the writ petition has
been filed for the enforcement of any of the
Fundamental Rights or where there has been a
violation of the principle of natural justice or where the
order or proceedings are wholly without jurisdiction or
the vires of an Act is challenged. There is a plethora of
case-law on this point but to cut down this circle of
forensic whirlpool, we would rely on some old decisions
of the evolutionary era of the constitutional law as they
still hold the filed."
8. The sole ground raised is that the petitioner is suffering
injustice and if the petitioner files revision application, it is likely to
consume considerable time and the result expected is, remand.
Therefore, with this fear in mind, the petitioner has filed the
captioned writ petition. Clearly, the petitioner is having an
alternative efficacious remedy available to him under the provisions
of Rule 50 of the Rules of 2017.
C/SCA/16426/2021 ORDER DATED: 16/11/2021
9. In view of the aforementioned discussion so also, the effective
and efficacious remedy available to the petitioner, this Court is not
inclined to entertain the writ petition.
10 Accordingly, the present writ petition is dismissed in limine.
No order as to cost.
(SANGEETA K. VISHEN,J)
Hitesh
