Gujarat High Court
State Of Gujarat vs Ajitsinh Malubha Jadeja on 2 February, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/98/2024 ORDER DATED: 02/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 98 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 7751 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 98 of 2024
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STATE OF GUJARAT
Versus
AJITSINH MALUBHA JADEJA
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Appearance:
MS HETAL PATEL AGP for the Appellant(s) No. 1,2,3,4
MR NIRAV R MISHRA(6140) for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 02/02/2024
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. The instant Appeal is directed against the judgment and order
dated 28.04.2022 passed by the learned Single judge in Special Civil
Application No.7751 of 2021, wherein, while allowing the Writ
Petition, it was directed that the case of the petitioner shall be
treated to be 'saved case', more particularly, in view of the
communication issued by the Industries and Mines Department
dated 18.12.2018, read with Rule 29(2) of the Gujarat Minor Mineral
Concessions Rules, 2017 (hereinafter referred to as "the Rules,
2017" for short). The order dated 21.05.2021 passed by the
Collector in rejecting the application moved by the petitioner dated
04.09.2003 for the grant of mining lease has, thus, been set aside.
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2. Certain facts relevant to decide the controversy at hand are
that the original petitioner/respondent herein had moved an
application dated 04.09.2003 for grant of minor mineral lease for
survey No.420, paiki 9.53.00 hector, which was rejected by the
Collector vide order dated 31.03.2006 on the ground that the said
area was falling under the 'land bank' of the Forest Department. It
seems that the appeal preferred by the petitioner before the
Additional Director (Appeals) had been allowed on 16.06.2014 and
the matter was remitted back to the Collector. The Collector
ultimately rejected the application again vide order dated
25.01.2019 on the ground that in view of the Rules, 2017, the
application could not be allowed. Again, the revision was preferred
by the petitioner, wherein, vide order dated 05.08.2020, the
Revisional Authority, while setting aside the order passed by the
Collector dated 25.01.2019, had remanded the matter back. Again,
vide order dated 21.05.2021, the application was rejected on the
ground that with the advent of the Rules, 2017, it was not possible
to accede to the request of the petitioner.
2.1 At that stage, the petitioner had approached this Court with
the relief for issuance of writ of mandamus seeking for quashing of
the order passed by the Collector on 21.05.2021. A further prayer
was made that a Letter of Intent be issued to the petitioner in
respect of the lease application filed by him, as in the similar
situation, in the case of Surtansinh Malubhai Jadeja in Special Civil
Application No.15566 of 2019 and in the case of Surtansinh
Keshubha Jadeja and ors. in Special Civil Application No.19745 of
2019, who had applied for grant of minor mineral lease in a portion
of the same survey number, for different parcels of land as applied
by the petitioner, a Letter of Intent has been issued pursuant to the
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direction issued by this Court.
2.2 It was contended by the petitioner before the Writ Court that
the case of the petitioner would fall within the category of 'saved
case' as per the Rules, 2017 and, as such, a Letter of Intent was
required to be issued by completion of necessary formalities in
favour of the petitioner so that lease deed may be executed.
2.3 Having noted the submissions of the petitioner, the learned
Single Judge while setting aside the order dated 21.05.2021 has
simply held that since the order passed by the Collector in rejection
of the application dated 04.09.2003 had been set aside by the
Revisional Authority and the matter was remanded back for fresh
consideration, the case of the petitioner shall be liable to be
considered as 'saved case' in view of Rule 29 of the Rules, 2017.
The said view is also sought to be substantiated with the
communication of the Industries and Mines Department dated
18.12.2018 and noticing the fact that in the case of Surtansinh
Malubhai Jadeja and Bhupatsinh Chatursinh Jadeja, the Letters of
Intent had been issued for the adjacent area for which the petitioner
had applied.
3. Ms. Hetal Patel, the learned Assistant Government Pleader
appearing for the State appellants has relied upon the decision of
the Division Bench in Letters Patent Appeal No.718 of 2023 dated
13.10.2023, wherein, we have decided similarly controversy dealing
with the provisions of Rule 29 of the Rules, 2017 and held that as
per Rule 29, the applications pending on the date of coming into
force of the Rules, 2017 shall also be treated as rendered ineligible
unless prior approval is granted or Letter of Intent is issued to the
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applicant. It was held that once the Rule holds the field, which
provided a particular method of disposal of quarry lease
applications, the same have to be applied to all cases. The
undecided pending applications could not be permitted to be
governed by the erstwhile procedure. In the facts of the said case, it
was noticed that no prior written approval was granted by any
competent authority for grant of lease, nor any Letter of Intent was
issued to the petitioners to bring about entitlement or consideration
of the applications. Once the Rules, 2017 came into force with effect
from 25.04.2017, for the mere fact that the Revisional Authority had
remanded the matter back and the quarry lease could not be
granted bypassing the statutory Rules in force.
3.1 It was held that the Collector had rightly treated the
application of the petitioners therein to be ineligible. As the method
of auction is provided in the new Rules, it was not open for the
petitioners to argue that they were entitled for grant of lease or
issuance of Letter of Intent treating their applications as 'saved
case'. It was also held that the clarificatory communication dated
18.12.2018 from the Industries and Mines Department, which
provided that the cases dealt with by the Revisional Authority before
24.05.2017 would be processed after fulfilling of the conditions
which may have been imposed by the Revisional Authority for the
purpose of sanctioning of the quarry lease, stood contrary to the
statutory rules holding the field, whereunder the pending quarry
lease applications were provided to be treated as ineligible unless
the Letter of Intent was already issued before the enforcement of
the Rules, 2017. It was, thus, held that with the commencement of
the Rules, 2017, the applications pending for grant of quarry lease
were not liable to be considered as against the position of law after
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enforcement of the Rules. The new statutory Rules, 2017 are to be
necessarily applied for all cases of grant of quarry lease.
4. Mr. Nirav R. Mishra, the learned counsel appearing for the
respondent/writ petitioner seeks to distinguish the decision of the
Division Bench dated 13.10.2023 on the premise that in the case of
the petitioner herein, the law laid down therein would not be
attracted, as in the case of another person viz. Surtansinh Malubhai
Jadeja, a Letter of Intent has been issued by the competent
authority on the direction issued by this Court in the judgment and
order dated 10.02.2020. The contention, thus, is that in the similar
situation, for an adjacent parcel of land, on the application moved
by Surtansinh Malubhai Jadeja, which was previously rejected by the
Collector, a Letter of Intent was issued even after enforcement of
the Rules, 2017. The submission is that the competent authority
cannot take a different view in so far as the case of the petitioner is
concerned. In order to maintain parity between two similarly
situated persons, this Court is also required to consider that the
application moved by the petitioner is entitled to be treated as
'saved case' and the Collector had committed an illegality in
rejecting the said application on the premise that with the
enforcement of the Rules 2017, the request for grant of quarry lease
cannot be considered on the application moved by one person.
5. Noticing the above, suffice it to note that when we have gone
through the judgment and order dated 10.02.2020 passed in the
Writ Petition in the case of Surtansinh Malubhai Jadeja in Special
Civil Application No.15566 of 2019, we find that in the said case, the
only issue raised before this Court was of inaction on the part of the
State Government in not issuing any order in writing for grant of
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quarry lease, though the Letter of Intent had already been issued in
favour of the petitioner therein. Noticing the said fact and the stand
of the State in that matter, the Court had disposed off the Writ
Petition saying that upon submitting the mining plan to the Collector
and fulfilling all conditions of Letter of Intent, the Collector shall
execute the lease deed in favour of the petitioner therein. The
question as to whether the case of the petitioner therein would fall
within the category of 'saved case', was neither the subject matter
of consideration before the Writ Court, nor it was adverted to.
6. In the instant case, the said decision cannot be applied. A
perusal of Rule 29 of the Rules, 2017 indicates that sub-rule (1) of
Rule 29 categorically provides that all applications for grant of a
quarry lease received prior to the date of commencement of these
rules shall become ineligible. Sub-rule (2) of Rule 29, however,
carves exception to the mandate of sub-rule (1) in two situations
where (i) a prior written approval for grant of quarry lease has been
issued by the competent authority, or (ii) a Letter of Intent has been
issued in writing by the Government to grant quarry lease before
commencement of the Rules, 2017. The proviso to sub-rule (2)
further provides the condition, in which, an exception can be carved
out to the mandate of sub-rule (1) of Rule 29 of the Rules, 2017.
6.1 As admittedly, in the instant case, the application of the
petitioner filed on 04.09.2003 had been rejected at the first instance
on the ground that the area in question was falling under 'land
bank' of the Forest Department, the remittal of the said application
by the appellate/revisional authority on the challenge would not
bring the case of the petitioner within the category of 'saved case'
as per Rule 29 of the Rules, 2017. We may reiterate that once the
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statutory rules govern the regime of grant of quarry lease, it is not
open for any authority or the State Government to carve out any
exception by way of any instruction/circular/government resolution.
The reliance placed on the communication of the Industries and
Mines Department dated 18.12.2018, in the instant case, to assert
that the application of the petitioner would fall within the category
of 'saved case' and, thus, could not have been rejected by the
Collector on the ground that in view of the Rules, 2017 the
application could not have considered, is misplaced. We may only
record that for the mere fact that the application once rejected in
the year 2006 was revived with the remittal of the matter twice
under the order passed by the appellate/revisional authority, it
would not fall within exceptions carved out in sub-rule (2) of Rule 29
to the mandate of sub-rule (1) which provides that all pending
applications shall be rendered ineligible.
7. It is held by the Coordinate Bench in the judgment and order
dated 13.10.2023 that with the advent of the Rules, 2017, all
pending applications for grant of quarry lease would have to be
rendered ineligible irrespective of the fact that at relevant point of
time, the matter was remanded back by the appellate/revisional
authority.
7.1 Further, the submission of Mr. Nirav Mishra, the learned
counsel for the respondent on the plea of parity that similarly
situated person has been granted the lease after enforcement of the
Rules, 2017 cannot be accepted for the reason that the petitioner
cannot claim parity with a direction where the Letter of Intent had
been issued by the State Government and the person had
approached this Court after issuance of the Letter of Intent.
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7.2 As regards the contention of the learned counsel for the
respondent/writ petitioner that in the case of Surtansinh Malubhai
Jadeja, his application was initially rejected and the Letter of Intent
was issued after enforcement of the Rules, 2017 on the remittal
made by the Revisional Authority, suffice it to note that a wrong
committed by the competent authority in issuance of Letter of Intent
in favour of the aforesaid person cannot be directed to be repeated
by us by issuance of writ of mandamus. A wrong cannot be directed
to be perpetuated by the Court. No negative parity can be claimed
by the writ petitioner.
8. For the aforesaid, we find that the judgment and order dated
28.04.2022 passed by the learned Single Judge suffers from
inherent infirmity and hence, the same is liable to be set aside. The
Writ Petition deserves to be dismissed, accordingly.
9. It may be noted that on a contempt application filed by the
petitioner for non-compliance of the judgment and order dated
28.04.2022 passed by the Writ Court, a Letter of Intent had been
issued by the respondent authority and the contempt proceedings
were subsequently dropped noticing that the issuance of Letter of
Intent pursuant to the judgment and order dated 28.04.2022 passed
by the learned Single Judge is subject to the right of the respondent
to challenge the order of the learned Single Judge. No benefit can be
derived by the petitioner for the fact of issuance of Letter of Intent
pursuant to the directions of the learned Single Judge, which has
been found to be faulted in law.
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10. Consequently, the Appeal stands allowed. The Civil Application
for stay does not survive and the same is disposed of, accordingly.
(SUNITA AGARWAL, CJ )
(ANIRUDDHA P. MAYEE, J.)
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