AMBALAL MANIBHAI PATEL v. STATE — 1985 DIGILAW 174 (GUJ)

A. P. RAVANI, J. ( 1 ) ONCE a lease always a lease. Obviously an absurd proposition. Naturally therefore the petitioners have not made submissions in these clear terms. But on proper examination of the contentions raised by the petitioners such will be the position if the contentions of the petitioners are accepted notwithstanding the contrary Legislative mandate given by the Forest (Conservation) Act 1980 ( 2 ) ALL these three petitions arise out of the orders passed by the appropriate authorities under the provisions of the Gujarat Minor Mineral Rules 1966 (the Rules for short ). The petitioners were granted quarry lease in respect of certain land for excavation of minor minerals. It is not disputed that the initial lease granted came to an end sometime prior to the year 1980. The petitioners submitted applications for renewal of lease. Initially the lease appears to have been renewed for a year or two. Later on their applications for renewal of lease for further period have been rejected mainly on the ground that in view of the provisions of Forest (Conservation) Act 1980 (the Forest Act for short) which came into force from October 1980 it was not possible to renew the lease because the area in question was falling within the reserved forest area. Since the competent authority under the Rules rejected the applications the petitioners preferred appeals before the appellate authority. The appellate authority has also rejected the appeals and hence the present petitions. ( 3 ) IT is submitted that under the provision of Rule 38 (1) (b) revision is provided but the petitioners have not preferred revision because the Government has issued circulars wherein it is stated that on account of the provisions of the Forest Act the renewal of lease should not be granted. Therefore according to the petitioners it would be futile to prefer revision application before the Government. This contention is not well-founded because instruction issued on administrative side is not necessarily binding to an authority exercising judicial or quasi- judicial powers. However in the facts and circumstances of the cases and when the petitions are pending before this Court for a pretty long time it would be desirable to dispose of the same on merits. This contention is not well-founded because instruction issued on administrative side is not necessarily binding to an authority exercising judicial or quasi- judicial powers. However in the facts and circumstances of the cases and when the petitions are pending before this Court for a pretty long time it would be desirable to dispose of the same on merits. ( 4 ) COUNSEL for the petitioners submitted that once the Forest Department has given consent at the time when the lease was initially granted then it was not necessary to ask for the consent of the Forest Department again. According to him as per the provisions of Rule 18 and Clause (3) of Part VIII attached to the prescribe form of lease which is printed in the book at page 39 onwards the petitioners have vested right to get their lease renewed. It is submitted that the Forest Act is not retrospective in operation and therefore the vested right of the petitioners cannot be adversely affected in any manner whatsoever. ( 5 ) IT is not necessary to consider whether the provisions of the Forest Act are retrospective in operation or not. Even if the provisions of the Forest Act are held to be prospective the petitioners contention that they have a vested right to get their lease renewed cannot be accepted. There is no dispute with regard to the fact that when the Forest Act came into force and when the provisions of the Forest Act are sought to be applied to the case of the petitioners there is no subsisting lease. In this view of the matter what is required to be decided is whether the petitioners have got any vested right to get their lease renewed. ( 6 ) RULE 18 deals with period of lease renewals and availability of the areas already granted on lease. Clause (3) of the Covenant of the State Government which is in Part-VIII of Form-D (which is a prescribed form of lease deed) also deals with renewal of lease. This clause is to be found at page 63 of the book of Gujarat Minor Mineral Rules 1966 published by the Government. On perusal of this provision it cannot be said that any vested right is conferred upon the lessee to get his lease renewed. Clause (1) (a) of Rule 18 deals with the grant of lease and the period thereof. On perusal of this provision it cannot be said that any vested right is conferred upon the lessee to get his lease renewed. Clause (1) (a) of Rule 18 deals with the grant of lease and the period thereof. Clause (1) (b) of Rule 18 deals with renewal Sub-clause (ii) provides that at the time of renewal of the lease the lessee shall be entitled to surrender any part of the land leased to him. Clause (3) provides that when renewal is granted the terms and conditions of the renewal shall be the scheme as those in force at the time of the renewal. Clause (4) provides for the application to be submitted for the renewal. Clause (5) provides for the determination of lease by notice of six months. Clause (6) of Rule 18 provides for compensation in case the lease is determined in accordance with the provisions of Clause (5 ). It is specifically provided in Clause (b) (i) or Rule 18 that the lease may be renewed by the competent officer. This phrase indicates that there is no vested right whatsoever in the lessee. On the contrary the competent officer is conferred with discretion as to whether or not to renew the lease. Moreover Clause (3) of Rule 18 envisages the chance in the terms and conditions and incorporation of the terms and conditions which may be in force at the time of renewal further it is open to the lessee to surrender any part of the land leased to him at the time of renewal. All these things clearly indicate that at the time of renewal both the parties are free to enter into a fresh contract or may even refuse to enter into any contract. By no stretch of reasoning the provisions of Rule 18 read with the Covenants attached to Form-D confers any vested right whatsoever on the lessee to get the lease renewed. ( 7 ) IF the argument advanced by the counsel for the petitioner is accepted what would be the consequences ? It would amount to saying that the provisions of the Forest Act should remain suspended in respect of the land which has been given on lease prior to the commencement of the Forest Act. ( 7 ) IF the argument advanced by the counsel for the petitioner is accepted what would be the consequences ? It would amount to saying that the provisions of the Forest Act should remain suspended in respect of the land which has been given on lease prior to the commencement of the Forest Act. Because during the subsistence of the lease right of lessee cannot be adversely affected and after the expiry of the lease it has got to be renewed. Acceptance of this argument would lead to absurdities. It would amount to saying once a lease always a lease. It would also amount to imposing a contract of lease on an unwilling lessor at the option of lessee though contract is ordinarily a matter of volition of parties and is arrived at on the basis of consent of parties. On the basis of well recognised canon of interpretation of statutes absurdities are to be avoided not created or invited. Therefore also the petitioners contention that the provisions of the Forest Act would not apply at the time of renewal of lease has got to be rejected. ( 8 ) COUNSEL for the petitioner relied upon a decision of this High Court in the case of Shantilal Jadavbhai v. State 20 GLR 654. I am afraid the observations made in the aforesaid decision instead of supporting the contention of the petitioners are going against the petitioners. The relevant observations are to be found in para 13 of the judgment which read as follows:"the next question is whether the renewal is a matter of right. The matter should not detain us much because Mr. J. C. Patel himself said that the renewal did not follow as a matter of course. All that he emphasised was that as a citizen-only Indian Citizens could be given leases and none others-who was granted a lease because of his otherwise being eligible could legitimately expect that within the permissible limits of time and not exceeding the aggregate period provided by the rules his application for renewal would be considered in accordance with law and unless there are legal impediments it would be granted. In other words though he has no right to grant as such he has a right to have his application considered in the light of the circumstances of the case and in accordance with law. In other words though he has no right to grant as such he has a right to have his application considered in the light of the circumstances of the case and in accordance with law. The underlying policy of the legislature seems to be that unless there is some public purpose calling peremptory treatment or unless there is states need the renewal would ordinarily be granted subject to the limitation of area and time. (Emphasis supplied)" ( 9 ) IN that case the counsel (who is also the counsel for the petitioners herein) conceded that there was no vested right whatsoever to get the lease renewed. The Court also observed that the citizen had a right to insist that his application be considered on merits. Thereafter the Court observed that unless there is some public purpose calling for peremptory treatment or unless there is states need ordinarily the renewal will be granted subject to the limitation of area and time. In above view of the matter the only thing required to be seen is as to whether the applications made by the petitioners have been considered on merits and as to whether the same have been rejected on valid and relevant grounds or not. ( 10 ) THERE is no dispute with regard to the fact that applications were considered on merits. The applications have been rejected on the ground that the land is question is comprised within the reserved forest area. Even this High Court in the aforesaid decision held that the renewal application may be refused for some public purpose calling peremptory treatment and if there is states need. Now be it noted that the Parliament in its wisdom thought to put restriction on the de-reservation of forests or use of forest land for non-forest purposes and therefore passed an enactment called the Forest (Conservation) Act 1980 At the time of renewal of lease the authorities exercising powers under the Rules were bound to take is to consideration the provisions of the Forest Act. These authorities have taken into consideration the provisions of the Forest Act. On the basis of the provisions of the Forest Act they have come to the conclusion that since the land in question falls within the reserved forest area the lease cannot be renewed. These authorities have taken into consideration the provisions of the Forest Act. On the basis of the provisions of the Forest Act they have come to the conclusion that since the land in question falls within the reserved forest area the lease cannot be renewed. This ground cannot be said to be an irrelevant or extraneous ground for the purpose of refusal to renew the lease. It is certainly a ground based on the provisions of law enacted by the Parliament. ( 11 ) THE contention that earlier the Forest Department had given consent and therefore it was not at all necessary to obtain the consent of the Forest Department has also no merit. The counsel for the petitioners rightly submitted that the land belongs to the State Government and not to the Forest Department. In the instant case to whom the land belongs is not material; what is material is whether the land is falling within the reserved forest area or not ? The land may be under the control and management of any department other than the Forest Department of the State. It may be under the Forest Department or it may be under the Industries Mines and Power Department or it may even be under the supervision and control of the General Administration Department of the Government. That is besides the point. It is for the Government to see how to manage its affairs. A particular piece of land falling within the reserved forest area may be placed under the supervision and control of even Education Department of the Government. On this count the land would not cease to he forming part of reserved forest area. Once the land falls within the reserved forest area the provisions of the Act would be applicable. Thereafter what steps are to be taken for processing of renewal application or grant of lease is a matter of procedure. In the instant case it is not the case of the petitioners that the land does not fall within the reserved forest area at all. Therefore the contention that the consent of the Forest Department was not at all necessary has no merits and it has got to be rejected. ( 12 ) ONCE the Forest Act applies to the land in question then the opinion of the relevant department has got to be obtained. Therefore the contention that the consent of the Forest Department was not at all necessary has no merits and it has got to be rejected. ( 12 ) ONCE the Forest Act applies to the land in question then the opinion of the relevant department has got to be obtained. Once the fact is established that the land falls within the reserved forest area then the provision of the Forest Act would be applicable. If the provisions of the Forest Act apply then this circumstance can be made the basis for refusal to renew the lease. This will be a most valid and relevant ground for refusal to renew the lease. ( 13 ) COUNSEL for the petitioners submitted that the competent authority ought to have heard the petitioners on the report of the Forest Department. The petitioners ought to have been supplied with the report of the Forest Department and they ought to have been afforded an opportunity of making representations on that score. The submission is based on erroneous premise that the petitioners have a vested right to get their lease renewed. As stated hereinabove there is no vested right whatsoever in favour of the petitioners to get the lease renewed. Once there is no vested right the petitioners have no right of being heard. Therefore if the petitioners are not heard on the point of the report of the Forest Department there is no violation of principles of natural justice. Moreover it may be noted that this point was not urged by the petitioners before the appellate authority. Therefore this being essentially a question of fact the petitioners cannot be permitted to raise the same for the first time in a petition under Article 227 of the Constitution of India. Even so I have permitted the petitioners to raise this point and I have dealt with the same. ( 14 ) THE petitioners have by way of amendment submitted that the State Government in revision has granted renewal of leases in respect of the leases of land from which marble is being excavated. Therefore it is submitted that there is discrimination. In Special Civil Application No. 2471 of 1985 an affidavit-in-reply has been filed wherein this submission has been dealt with by the respondent. Therefore it is submitted that there is discrimination. In Special Civil Application No. 2471 of 1985 an affidavit-in-reply has been filed wherein this submission has been dealt with by the respondent. In para 6 of the affidavit-in-reply it is stated that so far marble quarries are concerned the decision was taken by the State Government that if the marble quarries were in operation for the last 10 years then in such cases the land be not reserved for forest area. Thereupon the Forest Department agreed to withdraw the objections and on account of the withdrawal of the objections by the Forest Department the State Government has renewed the lease in four cases. The counsel for the petitioners submitted that for de-reserving an area and carving it out from the reserved forest area approval of the Central Government is necessary while in the instant case the Government has passed orders granting renewal of lease only on the basis that the Forest Department does not object to the same. Looking to the order granting renewal of lease in respect of quarry lease of marbles it does appear that the order granting renewal has been passed only on the aforesaid ground. But then at the most it would be a case of granting renewal irregularly and in an illegal manner. That would not afford a ground to the petitioners to say that because someone else has been conferred illegal benefits the petitioners also should be conferred similar illegal benefits in an irregular or unlawful manner. Article 14 of the Constitution affords protection of law and it forbids the State from denying equal protection of laws. Article 14 cannot be pressed into service to claim illegal benefits. Therefore also the argument based on discrimination has got to be rejected. No other contention is raised as far as Special Civil Application No 6218 of 1983 and Special Civil Application No. 5372 of 1984 are concerned. ( 15 ) AS far as Special Civil Application No. 2471 of 1985 is concerned one additional ground is urged. It is on the basis of the order dated 29/11/1971 (Annexure A to the petition ). By that order the land of Survey No. 73 of village Morai admeasuring 13 acres has been sanctioned to be given to the persons mentioned therein. It is on the basis of the order dated 29/11/1971 (Annexure A to the petition ). By that order the land of Survey No. 73 of village Morai admeasuring 13 acres has been sanctioned to be given to the persons mentioned therein. It is further provided in the order that the land admeasuring 5 1/2 acres be put at the disposal of Industries Mines and Power Department for the purpose of being given to the claimants for quarry lease. On this basis it is submitted that the land is no more with the Forest Department and therefore rejection of the application for renewal on the ground that the Forest Department has not given consent is illegal and hence the application for renewal should be granted. This argument again proceeds on an erroneous understanding of the order. The question is not which department manages or controls the land. The question is whether the land falls within the reserved forest area or not ? By no stretch of reasoning it can be said that the land refereed to in order Annexure A dated 29/11/1971 was de-reserved and was carved out from the reserved forest area and thereafter it was placed under the Industries Mines and Power Department for the purpose of management. As stated earlier once the land forms part of the reserved forest area the provisions of the Forest Act would be applicable. In this view of the matter the case of the petitioners of Special Civil Application No. 2471 of 1985 also would be governed by the provisions of the Forest Act. Hence there is nothing wrong if the opinion of the Forest Department is sought and relied upon in their cases also. ( 16 ) NO other contention is raised. Hence all the three petitions are rejected. Notice discharged. (Rest of the judgment is not material for the reports ) (KMV) petition dismissed. .