Gujarat High Court
State Of Gujarat vs Kalusinh Parbatsinh Devda on 22 November, 2021
Bench: Mauna M. Bhatt
C/LPA/862/2021 CAV JUDGMENT DATED: 22/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 862 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 3318 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In
R/LETTERS PATENT APPEAL NO. 862 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
===============================================================
1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? Yes
Yes to be reported in Journals
3 Whether their Lordships wish to see the fair copy of Not applicable
the judgment ?
4 Whether this case involves a substantial question of Question of
law as to the interpretation of the Constitution of Law involved
India or any order made thereunder ?
===============================================================
STATE OF GUJARAT
Versus
KALUSINH PARBATSINH DEVDA
===============================================================
Appearance:
MR KM ANTANI ASST. GOVERNMENT PLEADER(1) for the Appellants
MR PANKAJ S CHAUDHARY(3269) for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND
KUMAR
C/LPA/862/2021 CAV JUDGMENT DATED: 22/11/2021
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 22/11/2021
CAV JUDGMENT
(PER : HONOURABLE MRS. JUSTICE MAUNA M. BHATT)
1. The State as Appellant has filed this Letters Patent Appeal
challenging the order dated 21.11.2019 rendered by the
Learned Single Judge, in Special Civil Application No.3318 of
2016.
2. A Coordinate Bench of this Court vide order dated
30.9.2021 had issued notice and stayed the operation of the
impugned order dated 21.11.2019. Considering the issue
involved in this appeal lies in a narrow compass and with the
consent of parties, the appeal is taken up for final hearing.
3. The relevant facts are to the effect that the Respondent
herein (original petitioner) had filed an application dated
25.4.2012 to get a lease for land bearing revenue survey
No.235/paiki/2 situated at village Aarkhi, Taluka: Dantiwada,
District: Banaskantha admeasuring 7082 Sq. Mtrs for excavation
of minor mineral limestone for a period of 10 years. Upon
completion of formalities, the Appellant No.3 called for
necessary documents and after due verification rejected the
respondent's application vide order dated 7.7.2012. The
application was rejected in view of sub rule (1) of Rule 14 of
C/LPA/862/2021 CAV JUDGMENT DATED: 22/11/2021
the Gujarat Minor Mineral Concession Rules, 2010 ("Rules
2010" for short) which states that no quarry lease shall be
granted for an area less than one hectare.
4. The Revision Application of the Respondent under sub-
rule (1) of Rule 65 of Rules, 2010 was also rejected vide order
dated 23.12.2015, confirming the order dated 7.7.2012. The
Respondent preferred Special Civil Application No.3318 of 2016
challenging the orders dated 7.7.2012 and 23.12.2015. The
Learned Single Judge vide judgement dated 21.11.2019
disposed of the petition with the following directions:
"9. On perusal of the sub-rule(1) of Rule 14
of Rules of 2010 and more particularly,
second proviso, it is clear that Government
has discretion in special case under special
circumstances for the reasons to be recorded
in writing to relax the provisions of the said
Rule. Therefore, in facts of the case,
respondent no.3 could consider the application
of the petitioner to grant lease for area
admeasuring 7082 sq. mtrs under special
circumstance as submitted by the petitioner
that no land except the land of area
admeasuring 7082 sq. Mtrs is available for
grant of lease for excavation of limestone.
C/LPA/862/2021 CAV JUDGMENT DATED: 22/11/2021
10. The respondents have also considered
other similar cases cited by the petitioner
wherein the lease was granted for area less
than one hectare.
11. In view of the above facts, which are
not in dispute, respondent no.3 may consider
the case of the petitioner at par with other
similarly situated cases for grant of lease and
may pass an order considering the special
circumstances of the facts of the case of the
petitioner as land admeasuring 7082 sq. Mtrs.
Situated on survey no. 235/paiki/2 of village
Aarkhi, Taluka Dantiwada, District
Banaskantha is a natural piece of land and the
petitioner has not demanded such land out of
a bigger area. Respondent No.3 is also
required to take into consideration the
submission of the petitioner that no other
area is available for grant of lease except the
land admeasuring 7082 sq. mtrs. as demanded
by the petitioner for the purpose of quarry
lease of limestone. It would be therefore, in
the interest of justice to quash and set aside
the order dated 23rd December, 2015 passed
C/LPA/862/2021 CAV JUDGMENT DATED: 22/11/2021
by respondent no.2 confirming the order dated
7th July, 2012 passed by respondent no.3
rejecting the application of the petitioner for
grant of quarry lease.
12. Accordingly the impugned orders are
quashed and set aside and the matter is
remanded back to the competent authority to
consider the case of the petitioner keeping in
mind the observations made in this order as a
special case and consider the special
circumstances under which the petitioner has
prayed for granting quarry lease. The
respondent authorities are also directed to
consider the application of the petitioner
without insisting upon the application of
Gujarat Minor Mineral Concession
Rules, 2017 which provides for grant of
lease only by way of auction as remand
of this case will relate back to the date of
application made by the petitioner on 25th
April. 2012. The respondents are further
directed to complete the aforesaid
exercise of considering the application dated
25th April, 2012 made by the
petitioner as expeditiously as possible and
C/LPA/862/2021 CAV JUDGMENT DATED: 22/11/2021
preferably within a period of three months
from the date of receipt of writ of this order.
13. The petition is accordingly partly allowed.
Rule is made absolute to the aforesaid
extent with no order as to cost."
5. Heard Mr.K.M. Antani, learned Assistant Government
Pleader appearing for the Appellants and Mr. P.S.Chaudhary,
learned counsel appearing for the Respondent.
6. It is contended by learned AGP that the Gujarat Minor
Mineral Concession Rules, 2010 has now been replaced by The
Gujarat Minor Mineral Concession Rules, 2017 with effect from
24th May, 2017 and the 2017 Rules provide for grant of quarry
lease by way of e-auction only and, therefore, the directions
for reconsidering the application without applying new Rules
2017 is contrary to the existing provisions as also the ratio laid
down by the Hon'ble Apex Court in the case of Sulekhan
Singh v. State of U.P. reported in AIR 2016 SC 228.
6.1. It has been further contended that under sub-rule (1) of
Rule 14 of "2010 Rules" no quarry lease can be granted for
an area less then one hectare. Moreover present case does not
fall within the exceptional circumstances so as to apply the
second proviso to Rule 14(1). In respect of the other
instances relied upon in the impugned order of the learned
C/LPA/862/2021 CAV JUDGMENT DATED: 22/11/2021
Single Judge, learned counsel submitted that they are
distinguishable on facts and further submitted that assuming
without admitting that any erroneous grant was given, the
same cannot form a precedent. He relied on the decision of
Hon'ble Apex court in case of Chandigarh Administration v.
Jagjit Singh reported in (1995) 1 SCC 745. He thus prayed to
quash and to set aside the judgment dated 21.11.2019.
7. On the other hand, Mr. P.S.Chaudhary, learned counsel
appearing for the Respondent has contended that no
interference is called for in the judgment of the learned Single
Judge as the application for grant of lease was in respect of
land for an area admeasuring 7082 sq. Mtrs., which was a
piece of land being a natural fragment. There is no other land
available for grant of lease and therefore, the Government
ought to have relaxed the criteria applying the second proviso
to sub-rule (1) of Rule 14 of "Rules, 2010". Learned counsel
appearing for the Respondent prayed for dismissal of the
Letters Patent Appeal.
8. Rule 14 of Gujarat Minor Mineral Concession Rules, 2010
reads as under:
"14. Restriction on area of quarry lease.- (1)
No quarry lease shall be granted for an area
exceeding twenty hectares and for an area less
than one hectare:
C/LPA/862/2021 CAV JUDGMENT DATED: 22/11/2021
Provided that in case of sand, Kankar and
gravel the quarry lease shall be granted for the
maximum area not exceeding 10 hectare and
the minimum area for grant shall not be less
than 0.25 hectare:
Provided further that the Government may,
in any special case and under special
circumstances, for the reasons to be recorded in
writing, relax the provisions of this rule."
9. A plain reading of above provision reveals that under
second proviso to sub-rule (1) of Rule 14 of " Rules 2010",
the Government is vested with the power to relax the
substantive provisions in special case and under special
circumstances. The mandatory requirement for exercising such
discretion is fulfillment of twin conditions stated in the second
proviso to Rule 14(1) of Rules, 2010.
10. In S. Sundaram Pillai, Etc vs V.R. Pattabiraman Etc.
reported in (1985) 1 SCC 591, the Apex Court has observed by
and large, a proviso may serve following four different
purposes:
C/LPA/862/2021 CAV JUDGMENT DATED: 22/11/2021
1. qualifying or excepting certain provisions from the
main enactment;
2. it may entirely change the very concept of the
intendment of the enactment by insisting on
certain mandatory conditions to be fulfilled in
order to make the enactment workable;
3. it may be embedded in the Act itself as to become
an integral part of the enactment and thus acquire
the tenor and colour of the substantive enactment
itself; and
4. it may be used merely to act as an optional
addenda to the enactment with the sole object of
explaining the real intendment of the statutory
provision.
11. It is required to be noticed that it is not extensive and
ultimately proviso like in other enactment has to be construed
in its terms. In this background, Rule 14 has to be examined
or understood.
12. In the application dated 25.4.2012 and the Revision
Application No.131 dated 4.12.2015, the special circumstances
pleaded are that the subject land is owned by Gram Panchayat
and entire piece of land is to be given for lease. In our
considered opinion, the said grounds do not fall within the
preview of special case and special circumstances so as to
apply second proviso to Rule 14(1) of "2010 Rules".
C/LPA/862/2021 CAV JUDGMENT DATED: 22/11/2021
13. In the matter of Hindustan Ideal Insurance Co. Ltd.
versus Life Insurance Corporation of India reported in AIR
1963 SC 1083, the Apex Court has held that there is no doubt
that where the main provision is clear, it's effect cannot be cut
down by the proviso. But where it is not clear, the proviso,
which cannot be presumed to be a surplus-age, can properly
be looked into to ascertain the meaning and scope of the main
provision.
14. Likewise in this case the main provision i.e Rule 14(1)
of 2010 Rules is clear and unambiguous. The word "shall"
used in the substantive provision cannot be diluted by applying
proviso, particularly when application of proviso is the
absolute discretion of the Government. This is not a case of
arbitrary non exercise of discretion.
15. The contention with regard to comparison with other
cases in our opinion will not make the Respondent's case as a
special case with special circumstances. Reliance placed by
learned Assistant Government Pleader on the decision in the
case of Chandigarh Administration v. Jagjit Singh reported in
(1995) 1 SCC 745 assumes significance. In the said decision
the Hon'ble Apex Court has observed in paragraph 8 as under:
C/LPA/862/2021 CAV JUDGMENT DATED: 22/11/2021
"8.We are of the opinion that the basis or
the principle, if it can be called one, on
which the writ petition has been allowed
by the High Court is unsustainable in law
and indefensible in principle. Since we
have come across many such instances, we
think it necessary to deal with such pleas
at a little length. Generally speaking, the
mere fact that the respondent authority has
passed a particular order in the case of
another person similarly situated can never
be the ground for issuing a writ in favour
of the petitioner on the plea of
discrimination. The order in favour of the
other person might be legal and valid or it
might not be. That has to be investigated
first before it can be directed to be
followed in the case of the petitioner If
the order in favour of the other person is
found to be contrary to law or not
warranted in the facts and circumstances
of his case, it is obvious that such illegal
or unwarranted order cannot be made the
basis of issuing a writ compelling the
respondent authority to repeat the illegality
or to pass another unwarranted order. The
C/LPA/862/2021 CAV JUDGMENT DATED: 22/11/2021
extraordinary and discretionary power of
the High Court cannot be exercised for
such a purpose. Merely because the
respondent authority has passed one
illegal/unwarranted order, it does not
entitle the High Court to compel the
authority to repeat that illegality over
again and again. The illegal/unwarranted
action must be corrected, if it can be done
according to law indeed, wherever it is
possible, the Court should direct the
appropriate authority to correct such
wrong orders in accordance with law but
even if it cannot be corrected, it is
difficult to see how it can be made a basis
for its repetition. By refusing to direct the
respondent authority to repeat the
illegality, the Court is not condoning the
earlier illegal act/order nor can such illegal
order constitute the basis for a legitimate
complaint of discrimination. Giving effect
to such pleas would be prejudicial to the
interests of law and will do incalculable
mischief to public interest. It will be a
negation of law and the rule of law. Of
course, if in case the order in favour of
C/LPA/862/2021 CAV JUDGMENT DATED: 22/11/2021
the other person is found to be a lawful
and justified one it can be followed and a
similar relief can be given to the petitioner
if it is found that the petitioners' case is
similar to the other persons' case. But then
why examine another person's case in his
absence rather than examining the case of
the petitioner who is present before the
Court and seeking the relief. Is it not more
appropriate and convenient to examine the
entitlement of the petitioner before the
Court to the relief asked for in the facts
and circumstances of his case than to
enquire into the correctness of the order
made or action taken in another person's
case, which other person is not before the
case nor is his case. In our considered
opinion, such a course --
barring exceptional situations would
neither be advisable nor desirable. In other
words, the High Court cannot ignore the
law and the well-accepted norms governing
the writ jurisdiction and say that because
in one case a particular order has been
passed or a particular action has been
taken, the same must be repeated
C/LPA/862/2021 CAV JUDGMENT DATED: 22/11/2021
irrespective of the fact whether such an
order or action is contrary to law or
otherwise. Each case must be decided on
its own merits, factual and legal, in
accordance with relevant legal principles.
The orders and actions of the authorities
cannot be equated to the judgments of the
Supreme Court and High Courts nor can
they be elevated to the level of the
precedents, as understood in the judicial
world. (What is the position in the case of
orders passed by authorities in exercise of
their quasi-judicial power, we express no
opinion. That can be dealt with when a
proper case arises."
16. In view of the foregoing reasons, in our opinion the
learned Single Judge has committed an error in directing the
Appellants (Original Respondents) to re-consider the case of
the Respondent (original Petitioner) for grant of quarry lease,
for the above reasons as also the direction to consider the
application without insisting upon the application of Gujarat
Minor Mineral Concession Rules, 2017.
17. Letters Patent Appeal is therefore allowed. The order of
learned Single Judge dated 21.11.2019 is set aside. Special
C/LPA/862/2021 CAV JUDGMENT DATED: 22/11/2021
Civil Application No.3318 of 2016 is hereby dismissed. No
order as to costs.
18. Consequentially, in view of order passed in Letters Patent
Appeal, Civil Application (For stay) also stands disposed of.
(ARAVIND KUMAR,CJ)
(MAUNA M. BHATT,J)
NAIR SMITA V.
