Rustambhai Ramanbhai Chaudhary v. State of Gujarat
2017-07-03
N.V.ANJARIA
body2017
DigiLaw.ai
JUDGMENT : N.V. ANJARIA, J. 1. In all the captioned petitions the facts are similar and the issue identical. The respective petitioners have raised prayers which are common. Therefore, all the four petitions were notified and heard together and are being simultaneously disposed of by this order. 2. The petitioners have prayed to set aside the Resolution dated 13th December, 2013 passed by the Industries and Mines Department of the State Government. This Resolution deals with disposal of the applications for grant of mining lease for minor mineral sand. The petitioners further and alternatively prayed to hold that the said Resolution dated 13th December, 2013 could not have retrospective effect and could not apply to the applications made prior to 13th December, 2013. The petitioners have next prayed to set aside Resolution dated 28th June, 2016 which provides that all the applications for grant of quarry leases would be disposed of by process of auction. The petitioners have prayed to set aside order dated 17th August, 2014 passed by the District Collector whereby the Collector rejected the request of the petitioners for grant of quarry lease on the basis of provisions of impugned Resolution dated 13th December, 2013. 3. The petitioner of Special Civil Application No. 1768 of 2015 applied on 21st April, 2011 under Rule 65 of the Gujarat Minor Mineral Rules, 2010 seeking permission for excavation of mineral sand from the area of riverbed Tapi at Village Vekur, Taluka Songadh, Tapi. In the background, there was a previous rejection of such applications, dismissal of revision application, proceedings of Special Civil Application before this Court and order of remand by the revisional authority whereupon the Collector proceeded to decide afresh after hearing the parties. By order dated 17th December, 2014 the Collector, Vyara, District Tapi, rejected the application of the petitioner on the principal ground that the application of/the petitioner was after 31st March, 2010, therefore would be governed by the policy of auction in view of Resolution dated 13th December, 2013. 4. While the facts of the case in each of the petition are parallel, they are noticed hereinafter briefly from first captioned Special Civil Application No. 1768 of 2015. Different petitioners applied for grant of quarry lease but their applications were similarly treated and came to be rejected on common ground. 5.
4. While the facts of the case in each of the petition are parallel, they are noticed hereinafter briefly from first captioned Special Civil Application No. 1768 of 2015. Different petitioners applied for grant of quarry lease but their applications were similarly treated and came to be rejected on common ground. 5. The State Government evolved a policy under Resolution dated 13th December, 2013 in question, whereby it was inter alia provided that the grant of quarry lease would be by way of auction. The policy resolution dated 13th December, 2013 brought out that the applications made after 31st March, 2010 would be disposed of by procedure of auction whereas the rest of the applications were not so included. 6. Another impugned Resolution dated 28th June, 2016 came to be passed by the authorities in light of the orders of the Supreme Court and that of this Court passed in different petitions including in Special Civil Application No. 20552 of 2015 decided on 29th April, 2016 and Special Civil Application No. 7374 of 2015 decided on 04th May, 2015 by this Court, on the aspect, to provide a streamlined policy that all the applications for quarry lease would be uniformly dealt with by adopting the process of auction. 7. Heard learned advocate Mr. S.P Majmudar for the petitioners and learned Assistant Government Pleader Mr. Manan Mehta for the respondent state authorities in each of the petitions. The principal ground of challenge to the Resolutions in question raised is that the Resolution dated 13th December, 2013 cannot have retrospective effect and the applications which are made prior to the date of Resolution ought to have been considered under the old policy, and not by undertaking auction. Incidental grounds were urged on behalf of the petitioners that the Gram Panchayat and other authorities had given favourable opinion for grant of quarry lease to the petitioners. The respondents contested the prayers by filing affidavit of Assistant Geologist-respondent No. 3 by contending inter alia that the policy for auction was based on the Rules which was a fair policy and the Resolution dated 13th December, 2013 and 28th June, 2016 were properly passed. 8.
The respondents contested the prayers by filing affidavit of Assistant Geologist-respondent No. 3 by contending inter alia that the policy for auction was based on the Rules which was a fair policy and the Resolution dated 13th December, 2013 and 28th June, 2016 were properly passed. 8. The decision of the Supreme Court in Sulekhan Singh v. State of U.P [ (2016) 4 SCC 663 : AIR 2016 SC 228 ] reiterated the principle that distribution of State largesse has to be by non-arbitrary method consistent with Article 14 of the Constitution. The question considered by the Apex Court was whether the High Court was justified in quashing mining lease granted in favour of the appellants by orders dated 24th May, 2014 and 26th May, 2014 on the ground that the said lease were granted in violation of the Government Order dated 31st May, 2012, under which mining leases could only be granted under Chapter IV of the U.P Minor Minerals (Concession) Rules, 1963 by way of e-tendering in the interest of transparency and to safeguard the public revenue. In paragraph 14 of the decision, the Apex Court stated:— “The above change of policy appears to be consistent with the position of law that State largesse ought to be distributed by non arbitrary method consistent with Article 14 of the Constitution (see (2012) 3 SCC 1 Centre for Public Interest Litigation v. Union of India; (2012) 10 SCC 1 Natural Resources Allocation, in Re, Special Reference No. 1 of 2012; (2014) 9 SCC 516 Manohar Lal Sharma v. Principal Secretary and (2014) 6 SCC 590 Goa Foundation v. Union of India).” (Para 5) 9. The principle stated in Sulekhan Singh (supra) is the basic dictum of law. Now, the contention that Resolution dated 13th December, 2013 is made to apply retrospectively which is not permitted, was dealt with and answered in Chhotubhai Gokulbhai Salar v. Additional Chief Secretary being Special Civil Application No. 7374 of 2016 decided as per order dated 04th May, 2016. Following was observed and held quoting relevant paragraphs 5.1, 5.2 and 5.4 “……… The submission of learned advocate was that his application was prior to 31st March, 2010, therefore such policy for auction was not applicable. This submission has to be evaluated in view of what is held in judgment dated 29th April, 2016 in Special Civil Application No. 20552 of 2015 and allied matters.
This submission has to be evaluated in view of what is held in judgment dated 29th April, 2016 in Special Civil Application No. 20552 of 2015 and allied matters. In the said judgment in group of petitions, the aspect of Resolution dated 13th December, 2013 with Rule 69 of the Rules as further informed by the law laid down by the Apex Court in case of Suleman Singh v. State of Uttar Pradesh [ (2016) 4 SCC 663 : AIR 2016 SC 228 ] has been considered by this Court.” “The proposition recorded by the revisional authority that the quarry leases are to be disposed of as per the said Resolution and Rule by way of auction can in no way to be excepted as the same is only in accordance with the principle of fairness and equality, highlighted by the Apex Court in case of Suleman Singh (supra), particularly in paragraph 20 of the judgment. It also seeks support from the trite principle that government property, in all ordinary cases and circumstances, is liable to be disposed of by putting it into a public domain and by resorting to the process of auction.” “In Punjab University, Chandigarh v. Subhash Chandra [ (1984) 3 SCC 603 : AIR 1984 SC 1415 ] the Supreme Court was concerned with the Regulation dealing with the eligibility of candidates which have taken admission to the MBBS Course and was aspiring to admission in post-graduation. During the tenure of the studentship as medical graduate student, Rules for admission for postgraduate underwent change. The Supreme Court held that candidates had no vested right to be governed by the old Rules and to the Rules which were prevalent at the time when the question of their applicability arose, such prevalent Rules apply. Secondly, for the purpose of post-graduate admission, the amended Rules as prevalent at the time of seeking such admission were held to be applied and it was held that such application cannot be termed as retrospective application.” 10. The facts in Sureshkumar Chhotubhai Salar v. State of Gujarat [AIR 2017 Gujarat 17] were parallel to the facts of the present case.
The facts in Sureshkumar Chhotubhai Salar v. State of Gujarat [AIR 2017 Gujarat 17] were parallel to the facts of the present case. The application for grant of quarry lease of the petitioner in that case was rejected on the ground that the application was to be disposed of by public auction in view of the very Resolution dated 13th December, 2013 which prescribed 31st March, 2010 as classifying date for consideration of application by public auction. The application was filed by the said petitioner after the classifying date, still however, it was held that the policy for auction would be applied and the application was rightly treated to be dealt with by auction. 11. Taken from the said decision the following extracts of decision would readily answer the contentions of the petitioners herein. The Court considered Rules 69 and 70 of the Gujarat Minor Minerals Concession Rules, 2010 to hold that what was provided in Resolution dated 13th December, 2013 can be supportive of the provisions of the said Rules. “5.2 The contention to call in question the policy reflected Resolution dated 13th December, 2013 providing for disposal of applications for quarry lease made after 31st March, 2010 is indeed not well-conceived in law. The said policy formulation firstly has a clear statutory backing. Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 confers power on the State Government to make Rules in respect of mines and minerals. Gujarat Minor Mineral Concessions Rules, 2010 are framed in exercise of statutory powers which inter alia contained definition of the term “quarry leases” in Section 2(vii). Rule 4 deals with grant of quarry lease to provide that any such lease has to be granted as per general instructions and directions as may be issued by the competent authority from time-to-time regarding conservation and scientific development of such mineral. Rule 8 deals with priority whereas Rules 69 and 70 deal with disposal of minor minerals by public auction. The said Rules reads as under.
Rule 8 deals with priority whereas Rules 69 and 70 deal with disposal of minor minerals by public auction. The said Rules reads as under. “69 Disposal of minor minerals by public auction in certain cases.-Notwithstanding anything contained in the foregoing provisions, it shall be lawful for the Competent Authority to sell by public auction or otherwise dispose of the right to remove any minor mineral or of collection of royalty thereon in such cases or class of cases and on such terms and conditions as the Government may be a general or special order direct.” “70 Power of the Government to give Direction. The grant or renewal of quarry lease, quarry permit and quarry parwana under these rules shall be subject to such general instructions and directions as may be issued by the government from time to time regarding conservation and scientific and economic development of minerals and industrial use of the Mineral in the State.”.” 12. The Court considered and applied other decisions on the issue. “5.3 This Court in Patel Vishnubhai Maganbhai v. State of Gujarat [ 2014 (3) GLH 425 ] group of petitions being Special Civil Application No. 14354 of 2011 and others, considered challenge as to the legality of guidelines issued by the Commissioner of Geology and Mines Department, State of Gujarat. It was prayed therein that the applications of the petitioners for obtaining quarry lease in the river-bed of Panam were liable to be disposed of in accordance with the provisions of Mines and Minerals (Development and Regulation) Act, 1957 read with Gujarat Minor Mineral Concession Rules, 2010. The petitioners were aggrieved because of impugned guideline clause (d). It was the contention that by virtue of the impugned instructions and guidelines, the pending applications were made redundant. This Court held the Rules conferred powers on the Government to issue direction from time-to-time keeping in mind the object of conservation of minerals. It was held that the procedure prescribed for adoption of method of public auction and placing the leases in public domain was in fulfillment of the said object, and that such method provide transparency and fairness.
This Court held the Rules conferred powers on the Government to issue direction from time-to-time keeping in mind the object of conservation of minerals. It was held that the procedure prescribed for adoption of method of public auction and placing the leases in public domain was in fulfillment of the said object, and that such method provide transparency and fairness. The Court had also occasion to look into the operational purport of the said Rules and the policy of granting leases by auction which was with reference to the classifying date of 31st March, 2010 as per the guidelines, subsequently translated into Resolution dated 13th December, 2013 in question. Yet another decision of Division Bench of this Court in Vijaykumar Ramdhan Bairwa v. State of Gujarat being Special Civil Application No. 10675 of 2014 and cognate petitions decided on 19th June, 2015 endorsed the object of Rules and approved the method of resorting to public auction for disposal of quarry lease. 5.4 In Rameshbhai Ukkad Vasava v. State of Gujarat decided as per judgment dated 29th April, 2016 in Special Civil Application No. 20552 of 2015 and allied matters, contention was that the applications for grant of quarry lease was prior in point of time to 31st March, 2010 and therefore rule of auction would not apply, however this Court observed that the auction is the ideal method for grant of quarry lease and that it was further held that such power stems from Rules 69 and 70 of the Rules referred to above. The principle underlined that auction of quarry leases is a method which stands informed by the tenets of Article 14 and serves the interest of public revenue.” 13. The decision in Sulekhan Singh (supra) of the Apex Court was relied on. “5.5 In Sulekhan Singh v. State of U.P [ (2016) 4 SCC 663 : AIR 2016 SC 228 ] relied on in Rameshbhai Ukkadbhai Vasava (supra), the Apex Court emphasised for bringing transparency in the procedure for granting the quarry leases.
The decision in Sulekhan Singh (supra) of the Apex Court was relied on. “5.5 In Sulekhan Singh v. State of U.P [ (2016) 4 SCC 663 : AIR 2016 SC 228 ] relied on in Rameshbhai Ukkadbhai Vasava (supra), the Apex Court emphasised for bringing transparency in the procedure for granting the quarry leases. The question considered by the Apex Court was whether the High Court of Uttar Pradesh was justified in quashing mining lease granted in favour of the appellants by orders dated 24th May, 2014 and 26th May, 2014 on the ground that the said lease were granted in violation of the Government Order dated 31st May, 2012, under which mining leases could only be granted under Chapter IV of the U.P Minor Minerals (Concession) Rules, 1963 by way of e-tendering in the interest of transparency and to safeguard the public revenue. It was observed that the policy of auction was consistent with the position of law that the State largesse is required to be distributed by non-arbitrary method consistent with Article 14 and that such non-arbitrary method is the process of auction. 5.5.1 In paragraph 5 in Sulekhan Singh (supra), it was observed by the Apex Court. “The above change of policy appears to be consistent with the position of law that State largesse ought to be distributed by non arbitrary method consistent with Article 14 of the Constitution (see (2012) 3 SCC 1 Centre for Public Interest Litigation v. Union of India; (2012) 10 SCC 1 Natural Resources Allocation, in Re, Special Reference No. 1 of 2012; (2014) 9 SCC 516 Manohar Lal Sharma v. Principal Secretary and (2014) 6 SCC 590 Goa Foundation v. Union of India).” (Para 5)” 14. It was therefore finally held:— “6. In view of the above position of law, when the Revisional Authority has in the impugned orders rejected the request and prayer of the petitioners on the ground that applications of the petitioners for grant of quarry lease were after 31st March, 2010 and therefore they are governed by the policy stipulation as per Resolution dated 13th December, 2013 providing for disposal by auction, the orders impugned are eminently just, legal and proper.
Not only the Resolution dated 13th December, 2013, but policy of opting for method of auction in general has been accepted as ideal in eye of law for the purpose of disposal of quarry leases in the decisions referred to hereinabove. Admittedly, the applications of the petitioners for quarry leases are after 31st March, 2010 so as to necessarily and invariably to be dealt with by employing the method of auction. This overriding aspect of auction as method enjoying legal endorsement for disposal of quarry leases applications, all other considerations and grounds sought to be raised by the petitioners stands displaced as unable to hold any merit.” 15. The law laid down in the aforesaid decisions would squarely apply to the facts of the case. All the contentions raised in this group of petitions are dealt with and answered as above. The issue is no longer res integra. No contention of the petitioner to assail the impugned Resolution would stand. Their case fails on merit. None of the prayers could be granted. 16. The petitions are liable to be dismissed and they are hereby dismissed. Rule is discharged. Interim relief, if any, is vacated.