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2020 DIGILAW 528 (RAJ)

Kalu Masar v. State of Rajasthan

2020-04-09

SANGEET LODHA, VINIT KUMAR MATHUR

body2020
JUDGMENT : Sangeet Lodha, J. 1. This intra-court appeal is directed against order dated 15.1.2019 of the learned single Judge, whereby the writ petition preferred by the appellant assailing the legality of order dated 28.12.2018 (Annexure-17) withdrawing the order dated 21.8.2014 issued by the Mining Engineer, Dungarpur cancelling the transfer of the mining lease made by the appellant-Kalu Masar in favour of the respondent No. 7-M/s. Solanki Green Marble Private Limited subject to withdrawal of the Writ Petition No. 9338/17 preferred by M/s. Solanki Green Marble Private Limited before this Court, has been dismissed. 2. The facts relevant are that the appellant, a member of Scheduled Tribe, was granted Mining Lease No. 3/87 (6/96) of the mining area ad measuring 10000 sq. mtr. for excavation of mineral Serpentine, near Village Naya Gaon, Tehsil Simalwada, District Dungarpur for a period of 10 years w.e.f. 13.3.1987, which was further renewed for a period of 20 years w.e.f. 13th March, 1997. 3. On 9.10.2012, the appellant submitted an application to the Assistant Mining Engineer, Mines and Geology Department, Dungarpur seeking transfer of the aforesaid mining lease in favour of M/s. Solanki Green Marble Private Limited i.e. the respondent No. 7 herein, stating therein that the transfer of the mining lease is being sought so as to excavate the mineral scientifically by installing advanced machinery. The appellant and his son (the respondent No. 8), the promoters of the said company, were holding 8000 and 2000 equity shares respectively therein. The Assistant Mining Engineer, Mines and Geology, Dungarpur issued an order dated 17.12.2012 transferring the mining lease in favour of the respondent No. 7 on certain terms and conditions incorporated therein. 4. On 12.12.2012, the appellant tendered resignation as Director of the Company and in his place, Shri Vikrara Singh was inducted as Director. The communication in this regard was sent to the Registrar of the Companies and the Mining Authority concerned was also informed accordingly. According to the appellant, the resignation letter as also the communication sent to the Mining Authority bears his forged signature. The equity shares of the respondent Company held by the appellant and his son were also transferred in the name of Vikram Singh and an amount of Rs. 80,000/- was paid to the appellant by cheque. The mining lease was transferred in the name of the respondent Company vide order dated 17.12.2012 issued by the Assistant Mining Engineer, Dungarpur. The equity shares of the respondent Company held by the appellant and his son were also transferred in the name of Vikram Singh and an amount of Rs. 80,000/- was paid to the appellant by cheque. The mining lease was transferred in the name of the respondent Company vide order dated 17.12.2012 issued by the Assistant Mining Engineer, Dungarpur. 5. Later, vide communication dated 1.8.2014 issued by the Joint Secretary, Department of Mines, the Mining Engineer, Dungarpur was directed to cancel the transfer of the mining lease inasmuch as the area covered by the mining lease is situated in the forest area, but, no prior approval as required was obtained from the Ministry of Forest, Government of India. Accordingly, vide order dated 21.8.2014 issued by the Mining Engineer, Dungarpur, the transfer of the mining lease was cancelled and the mining area was directed to be handed over to the original lease holder, the appellant herein. 6. Aggrieved by the order dated 21.8.2014, the respondent Company preferred a Writ Petition No. 6059/14 before this Court which was later withdrawn stating that assailing the said order, the respondent Company has already preferred a revision petition before the revisional authority. Accordingly, vide order dated 10.2.2017 passed by the learned single Judge of this Court, the writ petition was dismissed with liberty to the respondent No. 7 herein to pursue the revision petition filed as aforesaid. 7. The revision petition preferred by the respondent No. 7 as aforesaid came to be dismissed by the revisional authority vide order dated 14.7.2017. The legality of the said order as also the order dated 21.8.2014 issued by the Mining Engineer cancelling the transfer of mining lease was assailed by the respondent Company by way of yet another Writ Petition No. 9338/17 before this Court. Vide order dated 1.12.2017, this Court while admitting the said writ petition passed an interim order making the mining operations/proceeds of the mining, subject to the outcome of the writ petition. 8. On 8.8.2017, the appellant submitted an application before the Mining Engineer, Dungarpur seeking withdrawal of the application dated 9.10.2012 filed by him for transfer of mining lease in favour of the respondent Company stating therein that by playing fraud, Mr. 8. On 8.8.2017, the appellant submitted an application before the Mining Engineer, Dungarpur seeking withdrawal of the application dated 9.10.2012 filed by him for transfer of mining lease in favour of the respondent Company stating therein that by playing fraud, Mr. Vikram Singh Solanki, the so called Director, has submitted resignation of the appellant and illegally transferred the shares while forging his signatures, and for this reason, he has already filed a civil suit seeking injunction before the Civil Court of competent jurisdiction. 9. A reply was filed on behalf of the State in the said writ petition before this Court justifying the cancellation of the transfer of the mining lease on the ground that the prior approval of the Department of Forest, Government of India was necessary before permitting the transfer of the mining lease. 10. During the pendency of the writ petition preferred by the respondent Company, the Joint Secretary, Department of Mines, Government of Rajasthan, issued order dated 28.12.2018 whereby the communication dated 1.8.2014 issued by the Department of Mines, Government of Rajasthan and the order dated 21.8.2014 cancelling the mining lease were withdrawn subject to the respondent Company withdrawing the Writ Petition No. 9338/17 filed before this Court. The withdrawal order was issued keeping in view the communication dated 3.5.2010 issued by the Ministry of Forest and Environment, on the basis of which, on depositing the amount of Rs. 1 lac, in other 60 matters of similar nature, the transfer of the mining lease was sanctioned. 11. Pursuant to the order dated 28.12.2018 (supra) issued by the Department of Mines, the respondent Company vide order dated 2.1.2019 got the writ petition preferred as aforesaid dismissed as having become infructuous. 12. Aggrieved by the order dated 28.12.2018 issued by the Department of Mines as aforesaid, without giving an opportunity of hearing to the appellant and following the due process of law, the appellant made a representation to the State Government not to transfer the mining lease in favour of the respondent Company and take over the mine being excavated by the appellant, but to no avail. In these circumstances, assailing the action of the State Government, the appellant preferred the writ petition before this Court. 13. In these circumstances, assailing the action of the State Government, the appellant preferred the writ petition before this Court. 13. The learned single Judge while relying upon communication dated 3.5.2010 issued by the Ministry of Environment and Forest addressed to the Principal Secretary/Secretary (Forest), All States/UT Governments, observed that the transfer of the mining lease in the forest area was permitted by the Ministry of Forest on the condition of depositing 10% of Net Present Value or Rs. 1 lac as transfer fees and thus, there was no legal impediment in transferring the mining lease in favour of the respondent Company. Learned single Judge further observed that after resignation of the appellant way back in the year 2012 as Director, the equity shares held by him were also transferred in favour of Mr. Vikram Solanki, who was appointed as Director in his place and the transfer of mining lease vide order dated 17.12.12 was never questioned or challenged until the State Government suo motu cancelled the same. The Court observed that it is seriously questionable and debatable as to whether the appellant herein has any right to challenge the transfer of the mining lease in the name of the respondent Company. Accordingly, the writ petition has been dismissed by the learned single Judge by the order impugned. Hence this appeal. 14. Mr. M.R. Singhvi, learned Senior Advocate appearing for the appellant contended that as per provisions of Rule 15 of the Rajasthan Minor Mineral Concession Rules (1986) (for short "the Rules of 1986"), prior consent of competent authority is necessary in the matter of transfer of mining lease. As per the provisions contained in the relevant Guidelines for diversion of the forest land for non forest purposes, prior permission of the Government of India is essential. Similarly, for transfer of the mining lease of the mining area falling within the forest area from one agency to another for the same purpose for which the forest land was diverted, the prior approval of Government of India is mandatory. It is submitted that the application seeking transfer could be considered only after depositing the requisite fee and obtaining the approval from the concerned department of the Government of India. It is submitted that the application seeking transfer could be considered only after depositing the requisite fee and obtaining the approval from the concerned department of the Government of India. Learned counsel submitted that once the respondent had already passed an order cancelling the transfer of the mining lease on the' ground that no prior permission was taken and the litigation in this regard was pending, the order dated 28.12.2018 issued by the Mining Authority withdrawing the earlier orders dated 1.8.2014 and 21.8.2014 is absolutely illegal, arbitrary and violative of Rules 15 and 16 of the Rules of 1986. It is well settled that the administrative authority cannot review its own order and thus, after passing the order impugned dated 1.8.2014 and 21.8.2014, the said authority had become functus officio. Moreover, in the instant case, the application preferred by the respondent Company before the revisional authority had already been dismissed vide order dated 14.7.2017. Learned counsel submitted that in any case, once the transfer of the mining lease was cancelled and the mine was handed over to the appellant herein vide order dated 21.8.2014, which is apparent from the Inquiry Report (Annexure-22) placed on record and thus, no order adverse to his rights could have been passed by the Mining Authority without giving him an opportunity of hearing. Learned counsel submitted that on the application preferred by the respondent, a committee was constituted and the appellant had made representation pointing out that the transfer of mining lease in favour of the respondent Company is absolutely illegal. Learned counsel submitted that the Committee in its report categorically opined that as per letter dated 7.2.2014 issued by the Ministry of Environment and Forest, the guidelines dated 20.10.2003 is in force, even after issuance of letter dated 3.5.2010. It is submitted that the learned single Judge while passing the order impugned has totally ignored the factual position on record as aforesaid as also the factum of the appellant filing the application seeking withdrawal of the proposal of the mining lease as such and therefore, the order impugned passed solely relying upon the communication dated 3.5.2010 erroneously, deserves to be set aside. Learned counsel submitted that the order passed by the State Government purportedly to maintain the parity qua 60 other persons is absolutely illegal inasmuch as the right to equality enshrined under Article 14 of the Constitution of India is a positive concept, which cannot be invoked to perpetuate an illegality. In this regard, learned counsel relied upon a decision of the Supreme Court in Gursharan Singh and Ors. v. New Delhi Municipal Committee and Ors. : (1996) 2 SCC 459 :( AIR 1996 SC 1175 ). 15. Mr. N.M. Lodha, learned Senior Advocate appearing for the respondent No. 7 submitted that the mine in question already stood transferred to the respondent Company vide order dated 17.12.2012 after completing entire process as required under the law and therefore, the appellant had no right to question the withdrawal of the cancellation of transfer of mining lease. Learned counsel submitted that after transfer of the mining lease as aforesaid for a period of five years, the appellant did not raise any grievance and thus, the stand sought to be taken that the transfer was effected by playing fraud is absolutely malicious. It is submitted that the petition can be filed only by the person aggrieved and thus, the appellant who had raised no grievance against the transfer of the lease and enjoyed the benefits flowing therefrom cannot be said to be a person aggrieved and thus, the writ petition preferred was liable to be dismissed on this count alone. In this regard, learned counsel relied upon decisions of the Supreme Court in the matters of D. Nagraj etc. v. State of Karnataka and Ors., AIR 1977 SC 876 and Azeez Sait (Dead) by L.Rs. and Ors. v. Aman Bai and Ors., AIR 2003 SC 4444 . Learned counsel submitted that the appellant tendered his resignation from the Board of Directors of the respondent Company, Vikram Singh was appointed as Director of the Company and information in this regard was duly filed with MCA in Form No. 32, which was digitally signed by the appellant's son Shantilal as Director of the Company. The payment for transfer of the shares was made to the appellant by cheque which was credited in the joint bank account of the appellant and his son Shantilal on 19.12.2012. The payment for transfer of the shares was made to the appellant by cheque which was credited in the joint bank account of the appellant and his son Shantilal on 19.12.2012. It is submitted that the 'Memorandum of Transfer' evidencing transfer of the shares also bears the signature and thumb impression of Shantilal as Director of the respondent Company. The factum of a resignation by the appellant as Director of the Company and appointment of Shri Vikram Singh in his place as Director was also communicated by the appellant to the Assistant Mining Engineer, Dungarpur vide letter dated 14.12.2012 accompanied by an affidavit of the appellant's son Shantilal and thus, the allegations of fraud levelled against Director of the Company Vikram Singh are false to the knowledge of the appellant. Learned counsel submitted that relying upon circular dated 3.5.2010 on depositing Rs. 1 lac in 60 matters similar in nature, the transfer of mining lease was sanctioned by the State Government without obtaining prior approval from the Government of India and thus, the respondent Company similarly situated qua the persons in whose favour transfer of mining lease was permitted as aforesaid, could not have been differently treated. Learned counsel submitted that denial of similar treatment to the respondent Company would amount to conscious discrimination, which is violative of Article 14 of the Constitution of India. In support of the contention, learned counsel relied upon a decision of the Supreme Court in Vishnudas Hundumal etc. v. The State of Madhya Pradesh and Ors., AIR 1981 SC 1636 . 16. Mr. Sandeep Shah, learned Additional Advocate General submitted that notwithstanding letter dated 3.5.2010 issued by the Ministry of Environment and Forest, the mining lease existing in favour of the appellant herein could not have been transferred in favour of the respondent Company without prior approval of the Ministry of Forest, Government of India, however, so as to maintain the parity qua 60 other persons, in whose favour the transfer of the mining lease was sanctioned on depositing an amount of Rs. 1 lac as transfer fee, the transfer of lease in favour of the respondent Company has also been restored while withdrawing the order of cancellation of the mining lease. 1 lac as transfer fee, the transfer of lease in favour of the respondent Company has also been restored while withdrawing the order of cancellation of the mining lease. Learned counsel submitted that the appellant himself had preferred an application for transfer of the mining lease and therefore, after enjoying the benefits of the transfer, he cannot be permitted to question the legality of the action of the State Government in restoring the transfer of mining lease in favour of the respondent Company and thus, the writ petition preferred assailing the action of the State Government was not even maintainable. Learned AAG submitted that the order dated 17.12.12 sanctioning the transfer of the mining lease was never questioned by the appellant till 2015 when the suit was filed and the FIR was lodged and therefore, he is estopped from questioning the restoration of the transfer of mining lease which was admittedly made on the basis of the application preferred on his behalf. Learned AAG would submit that there is no provision in the Rules of 1986 permitting the withdrawal of the application seeking transfer once made and thus, nothing turns on the question that prior to passing of the order impugned, the appellant had made an application seeking withdrawal of his application dated 9.10.2012 seeking transfer of the mining lease. Learned AAG submitted that on the facts and in the circumstances of the case, where the appellant had voluntarily transferred the mining lease in favour of the respondent Company and availed the benefits thereof, he was not entitled for any opportunity of hearing. 17. Replying the arguments of learned counsel appearing for the respondents, Mr. M.R. Singhvi, Senior Advocate appearing for the appellant submitted that the order made in exercise of the statutory authority cannot be sustained in light of the explanation subsequently given by the officer making the order and the same has to be construed with reference to the language used in the order itself and thus, the attempt of the respondents in justifying the order made on the basis of the reasons independent of those flowing from the order impugned cannot be gone into by this Court. In this regard, learned counsel relied upon the decisions of the Supreme Court in the matters of Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16 and Mohinder Singh Gill and Anr. In this regard, learned counsel relied upon the decisions of the Supreme Court in the matters of Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16 and Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors.,: AIR 1978 SC 851 . 18. We have considered the rival submissions and gone through the material on record. 19. Indisputably, in the instant case an objection was raised by the respondent Company before the learned single Judge questioning the existence of the right of the appellant herein to challenge the restoration of transfer of the mining lease in favour of the respondent Company by order impugned dated 28.12.2018; the same though noticed, has not been considered and decided by the learned single Judge and therefore, before entering into other issues raised, we consider it appropriate to first deal with the objection raised on behalf of the respondent Company and the State Government in this regard. 20. There cannot be any quarrel with the proposition that unless the existence of personal and individual legal right of the writ petitioner which is alleged to have been violated is established, except in case of habeas corpus, quo warranto and Public Interest Litigations, the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India cannot be invoked. 21. Adverting to the facts of the instant case, admittedly, pursuant to an application dated 9.10.2012 made by the appellant with the requisite affidavits, the mining lease in question was transferred vide order dated 17.12.2012 issued by the Assistant Mining Engineer, Mines and Geology in the name of the respondent Company in which both appellant and the respondent No. 8 were Directors and Share Holders. It is alleged that the equity shares of the respondent Company held by the appellant and his son, the respondent No. 8 herein, were got transferred in the name of Vikram Singh by playing fraud on the basis of forged signature. It is alleged that the equity shares of the respondent Company held by the appellant and his son, the respondent No. 8 herein, were got transferred in the name of Vikram Singh by playing fraud on the basis of forged signature. Be that as it may, admittedly, vide order dated 21.8.2014 issued by the Mining Engineer, Dungarpur, the transfer of the mining lease in favour of the respondent Company was cancelled on the ground that the area covered by the mining lease falls within the forest area but no prior approval of the Ministry of Forest, Government of India as required, was obtained and accordingly; while cancelling the mining lease, the mining area was directed to be handed over to the original lease holder, the appellant herein. It is also not in dispute that challenging the legality of the order dated 21.8.2014 passed by the Mining Engineer as aforesaid, the respondent Company preferred a writ petition before this Court, which was later withdrawn, stating that assailing the said order the respondent Company has preferred a revision petition before the revisional authority. The revision petition preferred came to be dismissed by the revisional authority vide order dated 14.7.2017, the legality whereof was assailed by the respondent Company by way of yet another writ petition No. 9338/17 before this Court, however, the same was withdrawn by the respondent Company in view of order dated 28.12.2018 issued by the Joint Secretary, Department of Mines, whereby communication dated 1.8.2014 issued by the Department of Mines, Government of Rajasthan and the order dated 21.8.2014 cancelling the transfer of the mining lease were withdrawn, subject to respondent Company withdrawing the writ petition No. 9338/17 preferred before this Court. The writ petition preferred by the respondent Company was dismissed by this Court as having become infructuous keeping in view the order dated 28.12.2018 passed by the State Government as aforesaid. The writ petition preferred by the respondent Company was dismissed by this Court as having become infructuous keeping in view the order dated 28.12.2018 passed by the State Government as aforesaid. It is also not in dispute that the concluded proceedings in cancelling the mining lease and restoring the mining lease of the original lease holder, the appellant herein, and handing over the possession of the mining area to him, was reopened by the State Government unilaterally on the basis of the representation dated 9.10.18 preferred by the respondent Company claiming parity qua 60 similar cases of transfer of mining lease on the strength of order dated 3.5.10 issued by the Ministry of Forest and Environment, Government of Rajasthan. Apparently, while reopening the proceedings as aforesaid, the application preferred by the appellant withdrawing his earlier application dated 9.12.2012 submitted before the Mining Engineer, Dungarpur seeking transfer of the mining lease in favour of the respondent Company, was ignored. It is also the matter of record that the order impugned dated 28.12.2018 was preceded by an enquiry by a Joint Committee constituted by the State Government vide order dated 24.9.2018. The Joint Committee in its report categorically observed that as per letter dated 7.2.2014 issued by the Ministry of Forest and Environment, the guidelines issued on 20.10.2003 are operative even after issuance of letter dated 3.5:2010 and thus, before transfer of the mining lease existing in the name of the appellant herein in favour of the respondent Company, prior approval of the Government of India is mandatory. Whether it was open for the State Government to review its earlier order cancelling the transfer of mining lease and whether the order dated 21.8.14 withdrawing the order of cancellation of mining lease and directing handing over of the mining area to the original lease holder could have been reviewed by the State Government on the basis of the representation made on behalf of the respondent Company, that too, without giving an opportunity of hearing to the original lease holder, the appellant herein, remain debatable questions to be examined by this Court. Thus, on the facts and the circumstances of the case, where after cancellation of the transfer of mining lease, the mining lease in favour of the appellant was restored and possession of the mining area was directed to be handed over to him, it cannot be said that the appellant had no existing legal right to inter-meddle in the proceedings of cancellation of transfer of mining lease, revived by the State Government unilaterally, ignoring the application preferred by him withdrawing the application seeking transfer of mining lease in favour of the respondent Company. Thus, the objection sought to be raised on behalf of the respondent Company and the State Government questioning the maintainability of the writ petition on the ground of the appellant being not an aggrieved person, deserves to be rejected. 22. Indisputably, as per Rule 15 of the Rules of 1986, the transfer of mining lease is not permissible to be made where permission of Revenue or other departments is required to be obtained before issuing the permission. It is not disputed before this Court that the mining area in question falls within the forest area and therefore, the prior approval of the Ministry of Forest, Government of India was required to be obtained before the competent authority sanctioning the transfer of mining lease, however, the transfer of the mining lease was sanctioned by the competent authority without obtaining a prior approval envisaged under the relevant Rules and the instructions issued by the Government of India in this regard and for this reason, the order dated 17.12.2012 passed by the competent authority permitting the transfer of mining lease was ex facie illegal. It is not disputed that the legality of the order passed by the competent authority cancelling the transfer of mining lease was examined by the revisional authority i.e. State Government; the revision petition preferred by the respondent Company was dismissed and thus, the order dated 21.8.2014 passed by the competent authority cancelling the transfer of mining lease attained finality. Admittedly, there is no provision under the Rules of 1986, which empowers the competent authority/State Government to review its own order. Admittedly, there is no provision under the Rules of 1986, which empowers the competent authority/State Government to review its own order. Moreover, in the instant case, the order passed by the competent authority cancelling the transfer of mining lease having been upheld by the revisional authority, the concluded proceedings could not have been reopened by the State Government on its own or on the applications being made by the respondent Company. In this view of the matter, the action of the State Government in reviewing its own order is ex facie without jurisdiction. 23. As discussed hereinabove, as a result of cancellation of the transfer of the mining lease, the mining lease existing in favour of the appellant herein stood restored; the mining area was directed to be handed over to him and he had acquired a right to undertake the mining operation and thus, no order prejudicially affecting his right could have been passed by the State Government without extending an opportunity of hearing to him. There is yet another aspect of the matter. After cancellation of the transfer of mining lease in favour of the respondent Company, obviously, while sanctioning the transfer of mining lease on the respondent Company depositing an amount of Rs. 1,00,000/- in light of communication dated 3.5.2010 issued by the Ministry of Forest and Environment, the State Government had revived the proceedings for transfer of mining lease initiated on the basis of the application initially preferred by the appellant and thus, the question of the State Government passing any order on such application without extending an opportunity of hearing to the appellant herein, does not arise moreso when, the appellant had already preferred an application seeking withdrawal of his application dated 9.10.2012 seeking transfer of mining lease in favour of the respondent Company. In this view of the matter, the order dated 28.12.2018 passed by the State Government sanctioning the transfer of mining lease as aforesaid without giving an opportunity of hearing to the appellant is apparently violative of the basic principles of natural justice. 24. In this view of the matter, the order dated 28.12.2018 passed by the State Government sanctioning the transfer of mining lease as aforesaid without giving an opportunity of hearing to the appellant is apparently violative of the basic principles of natural justice. 24. It is not disputed before this Court that before sanctioning the transfer of the mining lease in question, the lease holder was under an obligation to obtain prior approval of the Ministry of Forest, Government of India, which was admittedly not obtained and thus, the transfer of the mining lease in favour of the respondent Company was bad in law. The subsequent transfer after the revival of the proceedings as aforesaid, has been sanctioned solely on the basis of communication dated 3.5.2010 issued by the Ministry of Forest and Environment, Government of India whereunder according to the respondent Company on depositing the amount of Rs. 1,00,000/- as transfer fee, the transfer of mining lease was permissible without approval of the Government of India in writing. It cannot be disputed that approval of the transfer of mining lease also involves examination of various relevant factors which are taken into consideration at the time of grant of the mining lease as well and thus, the grant of approval by the Government of India is not empty formality which can be relaxed by the competent authority while sanctioning the transfer of the mining lease. A bare perusal of the order dated 3.5.2010 reveals that by way of the said order it has been clarified that the transfer of the leases being an administrative issue is not required to be brought before Forest Advisory Committee and the appropriate decision in this regard may be taken by the Administrative Ministry. It further conveys the approval of the Central Government to levy 10% of Net Present Value or Rs. 1,00,000/-, whichever is less as transfer fee. In the considered opinion of this Court, the said order cannot be construed in the manner suggested by the respondent No. 7 that on depositing Rs. 1,00,000/- as transfer fee, the competent authority can grant approval to transfer of mining lease without prior approval of the Central Government. 1,00,000/-, whichever is less as transfer fee. In the considered opinion of this Court, the said order cannot be construed in the manner suggested by the respondent No. 7 that on depositing Rs. 1,00,000/- as transfer fee, the competent authority can grant approval to transfer of mining lease without prior approval of the Central Government. To the contrary, in terms of the order dated 3.5.2010 an application seeking approval for transfer of the mining lease in respect of the mining area falling within the forest area cannot be processed by the concerned Administrative Department unless Rs. 1,00,000/- are deposited by the applicant as transfer fee. 25. As a matter of fact, it is not even disputed by the State Government before this Court that the prior approval of the Government of India is necessary before sanctioning the transfer of the mining lease in respect of the mining area falling with the forest area. Rather, the action is sought to be justified only on the ground that similarly situated persons were sanctioned transfer of the mining lease by the competent authority on depositing Rs. 1,00,000/-, and thus, the respondent Company also deserves to be extended similar treatment. The respondent Company has also attempted to justify the order passed by the State Government on the ground that the State Government having relaxed the condition of prior approval keeping in view the order dated 3.5.2010 issued by the Government of India in favour of other applicants; the respondent Company similarly situated, cannot be denied similar treatment inasmuch as, the denial thereof would be violative of Article 14 of the Constitution of India. 26. 26. In Vishnudas Sundumal's case, AIR 1981 SC 1636 (supra), where while cancelling and/or curtailing permits of the petitioners permit holders for routes, parts of which over lapped with the notified routes, other permit holders in the same class having stage carriage permits for certain routes parts of which were over lapping with the notified routes were treated favourably by neither curtailing nor cancelling their permits and were permitted to ply their stage carriages by passing over a portion of notified routes, the Supreme Court while noticing the fact that the State had no willingness to rectify the error, directed that the order/conditions in permits of the petitioners prohibiting them from passing over the over lapping portion of their routes with the notified routes be quashed and declared to be of no consequence till all operators including those excluded and similarly situated were similarly treated. 27. In Gursharan Singh's case, AIR 1996 SC 1175 (supra), relied upon by the counsel for the appellant, the Supreme Court while dealing with the confusion prevailing in respect of the scope of Article 14 of the Constitution of India categorically held: "9. Apart from that even if it is assumed that concession was shown to such stall-holders by the NDMC the appellants cannot make grievance in respect of discrimination under Article 14 of the Constitution of India. Having agreed to the terms of allotment they cannot legitimately claim that they should also be treated in the same manner. There appears to be some confusion in respect of the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. This guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or court in a negative manner. To put it in other words, if an illegality or irregularity has been committed in favour of any individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court. that the same irregularity or illegality be committed by the State or an authority which can be held to be a State within the meaning of Article 12 of the Constitution, so far such petitioners are concerned, on the reasoning that they have been denied the benefits which have been extended to others although in an irregular or illegal manner. that the same irregularity or illegality be committed by the State or an authority which can be held to be a State within the meaning of Article 12 of the Constitution, so far such petitioners are concerned, on the reasoning that they have been denied the benefits which have been extended to others although in an irregular or illegal manner. Such petitioners can question the validity of orders which are said to have been passed in favour of persons who were not entitled to the same, but they cannot claim orders which are not sanctioned by law in their favour on principle of equality before law. Neither Article 14 of the constitution conceives within the equality clause this concept nor Article 236 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination. None of the 98 stallholders was impleaded a party to the writ petitions. The appellants questioned the validity of the allotment of 98 shops on concessional rates, without trade zoning restrictions in favour of the stall-holders of Panchkuian Road, but they were primarily interested that same concessions in respect of licence fee and relaxation in trade zoning restrictions, be also extended to them. Any such claim on their behalf cannot be entertained on the basis of concept of equality before law as enshrined in Article 14 of the Constitution." (Emphasis added) 28. In Vishal Properties Pvt. Ltd. v. State of U.P. and Ors., AIR 2008 SC 183 , the Supreme Court observed that Article 14 is not meant to perpetuate an illegality. It provides for positive equality and not negative equality therefore, the Court is not bound to direct any authority to repeat the wrong action done by it earlier. 29. In Hande Wavare and Co. v. Ramchandra Vitthal Dongre and Ors. It provides for positive equality and not negative equality therefore, the Court is not bound to direct any authority to repeat the wrong action done by it earlier. 29. In Hande Wavare and Co. v. Ramchandra Vitthal Dongre and Ors. (2019) 7 SCC 608 , the Supreme Court while relying upon its earlier decision in State of Bihar vs. Upendra Narayan (2009) 5 SCC 65 , reiterated that if any illegality or irregularity has been committed in favour of any individual or group of individual or wrong order has been passed by a forum, the same illegality or irregularity cannot be perpetuated on the ground of discrimination or hardship. 30. In State of Orissa and Ors. v. Anoop Kumar Senapati, (2019) 12 SCALE 386 , the Supreme Court opined that there is no concept of negative equality under Article 14 of the Constitution. In case the person has right he has to be treated equally, but where right is not available to a person cannot claim rights to be treated equally. 31. In P. Singaravelan and Ors. v. The District Collector, Tiruppur and Ors., MANU/SC/1769/2019, the Supreme Court observed that it is well settled by now that a person cannot invoke Article 14 to claim a benefit extended to someone similarly placed if he is not lawfully entitled to such benefit in the first place. Article 14 embodies the concept of positive equality alone, and not negative equality, that is to say, it cannot be relied upon to perpetuate an illegality or irregularity. 32. Concededly, in the instant case, the respondent Company is claiming waiver of the mandatory condition of prior approval of the Ministry of Forest, Government of India for transfer of the mining lease on the ground that similarly situated persons have been granted permission to transfer the mining lease without approval of the Government of India in writing on depositing Rs. 1,00,000/-. It is pertinent to note that noticing the illegality in not obtaining the prior approval of the Government of India before sanctioning transfer of the mining lease, the competent authority had already cancelled the transfer of the mining lease and the order passed stands upheld by the revisional authority. 1,00,000/-. It is pertinent to note that noticing the illegality in not obtaining the prior approval of the Government of India before sanctioning transfer of the mining lease, the competent authority had already cancelled the transfer of the mining lease and the order passed stands upheld by the revisional authority. It is really strange that the State Government while emphasizing that the prior approval is mandatory is contending before the Court that since it had already permitted similarly situated persons to transfer the mining lease without prior approval of the Central Government in writing, the similar treatment was required to be extended to the respondent Company as well. Indubitably, the action of the State Government in sanctioning the transfer of the mining lease in question without prior approval of the Government of India, was ex facie illegal and without jurisdiction. The State Government cannot be permitted to undone the concluded proceedings by exercising the power not vested in it under the law. Suffice it to say that the action of the State Government in sanctioning the transfer of the mining lease by revival of the proceedings already concluded ignoring the mandatory requirement under the law cannot be countenanced by this Court. This Court is firmly of the opinion that such action of the State Government cannot be protected by this Court under Article 226 of the Constitution of India on the ground that since other similarly situated persons have been extended the benefits of sanction of the transfer of mining lease dehors the Rules, the respondent Company also deserves to be extended same benefit. In view of the settled position of law discussed hereinabove, the positive concept of equality enshrined in Article 14 of the Constitution of India cannot be applied by this Court to perpetuate an illegality or irregularity and therefore, the impugned action of the State Government in permitting the transfer of the mining lease without prior approval of the Government of India invoking negative equality cannot be sustained by this Court. Moreover, in the instant case, where the original lease holder was contesting the claim of the respondent Company for revival of the proceedings and sanction of the transfer of mining lease, the concept of equal treatment to the persons similarly situated beneficiary of an illegal act on the part of the State Government, even otherwise could not have been invoked by the State Government. 33. 33. Lastly, coming to the contention of the respondent Company that the appellant having availed the benefits of the transfer and failed to raise any objection against the same for a period of five years, cannot be permitted to raise objection in this regard at this stage, it needs to be noted that in the first instance the transfer of the mining lease was sanctioned by the State Government in favour of the respondent Company wherein only the appellant and the respondent no. 8 were the Directors and Share Holders. The appellant claims that the transfer of the shares in favour of Shri Vikram Singh is based on forged documents and a dispute raised in this regard by way, of civil suit impending consideration before the court of competent jurisdiction. This Court need not enter into the dispute in this regard between the parties and they are always at liberty to pursue the pending proceedings or take further proceedings available under the law if so advised. Thus, on the facts and in the circumstances of the case discussed above, for the parity of reasons mentioned in para 20 (supra), the appellant- writ petitioner cannot be non suited by this Court on the ground raised by the respondent Company as aforesaid. 34. In view of the discussion above, the special appeal deserves to be allowed. 35. Accordingly, the special appeal is allowed. The order impugned dated 15.1.2019 passed by the learned single Judge is set aside. The writ petition preferred by the appellant is allowed. The order impugned in the writ petition dated 28.12.2018 passed by the State Government, withdrawing the order dated 21.8.2014 issued by the Mining Engineer, Dungarpur cancelling the transfer of the mining lease made by the appellant-Kalu Masar in favour of the respondent No. 7-M/s. Solanki Green Marble Private Limited, is quashed. No order as to costs.