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2024 DIGILAW 110 (GUJ)

Hemubha Malubha Jadeja v. State of Gujarat

2024-01-15

SANGEETA K.VISHEN

body2024
JUDGMENT : Sangeeta K. Vishen, J. 1. With the consent of the learned advocates appearing for the respective parties, the captioned petitions are taken up for final disposal. 2. Issue Rule, returnable forthwith. Mr. Niraj Sharma, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondents. 3. The petitioners have prayed for quashing and setting aside the orders, both dated 11.03.2022 passed by the Collector, Kutch, Office of the Geology & Mining Department whereby, the application of the petitioner for grant of quarry lease for bentonite mining for a requisite period, has been rejected in view of sub-rule (2) of Rule 29 of the Gujarat Minor Minerals (Concession) Rules, 2017 (hereinafter referred to as "Rules of 2017"). The Collector has further directed that the grant of the quarry lease shall be governed as per the provisions of Rule 4 of Rules of 2017. The petitioners, are aggrieved by the said rejection and hence, the captioned writ petitions. 4. Thus the issue, involved in both the captioned writ petitions, is common; therefore, are heard analogously and are being disposed of by this common judgment. Treating Special Civil Application No. 10932 of 2022 as lead matter, facts are taken from the said writ petition and are stated herein below. 4.1. The process was initiated in the year 1997, seeking grant of quarry lease for the term of five years with respect to survey no. 420 admeasuring H 02.A 00- 00 sq. mts. situated at moje-Pundi taluka-Mandavi, district-Kutch (hereinafter referred to as "the land in question"). The application came to be rejected by the Collector, Kutch, Office of the Geology & Mining Department vide order dated 15.01.2004 on the ground that there appears to be some overlapping. The petitioners being aggrieved, preferred an appeal before the Additional Director (Appeals), Office of the Commissioner, Geology & Mining Department, who vide order dated 23.08.2004, allowed it and remanded the case for fresh consideration. Once again, the Collector, Kutch has passed an order dated 14.07.2020. Aggrieved by the said order dated 14.07.2020, revision application was filed. It appears that in connection with the revision application, remarks were called for, which were provided by the Geologist, Geology & Mining Department vide its communication dated 16.10.2020. Once again, the Collector, Kutch has passed an order dated 14.07.2020. Aggrieved by the said order dated 14.07.2020, revision application was filed. It appears that in connection with the revision application, remarks were called for, which were provided by the Geologist, Geology & Mining Department vide its communication dated 16.10.2020. According to the petitioners, the Geologist, has opined for issuance of the Letter of Intent (hereinafter referred to as "LOI") on the ground that similarly situated parties have been issued LOI. 4.2. It is the case of the petitioners that apropos the letter dated 07.12.2020 issued by the Section Officer, Industries & Mines Department, the Geologist, provided the basis, explaining the instances as to under what circumstances the applicants in the ten cases were considered for grant of quarry lease. The Geologist also opined that the case of the petitioners for grant of quarry lease, may be considered as 'saved case', considering the order of the State Government sanctioning the lease of the petitioners. The revisional authority, passed an order dated 12.04.2021, quashing and setting aside the order dated 14.07.2020 of the Collector and directed the Collector, Office of the Geology & Mining Department to reconsider the case of the petitioners as discussed in paragraph 7 wherein, two cases were considered and lease came to be granted. As a result whereof, the Office of the Geology & Mining Department has passed an order dated 11.03.2022 rejecting the application for grant of lease on the ground that the case of the petitioners, cannot be considered as 'saved case' and further directed that the land in question may be disposed of in terms of Rule 4 of the Rules of 2017. Hence, the captioned writ petition. 5. Mr. Sudhir I. Nanavati, learned Senior Counsel assisted by Mr. Vandan Baxi, learned Advocate appearing for the petitioners has taken this Court to the chronology of events. While doing so, it is submitted that the application was filed which, came to be rejected on the ground of overlapping of the area which, was subject matter of challenge before the Additional Director, Geology & Mining Department who, has passed the order dated 23.08.2004, quashing and setting aside the order dated 15.01.2004. The matter was remitted to the Collector to take a decision afresh. The matter was remitted to the Collector to take a decision afresh. Accordingly, the Collector has passed order dated 14.07.2020, observing that considering the provisions of the Rules of 2014, and amended vide amendment Rules dated 24.05.2017 i.e. Rules of the 2017, application is not accepted. The Collector, Kutch was of the opinion that the case of the petitioners cannot be considered as a 'saved case' as per the provisions of sub-rule (2) of Rule 29 of the Rules of 2017. Also, all the applications for grant of quarry lease, are to be disposed of by conducting auction. 5.1. It is submitted that the revision filed by the petitioners came to be decided vide order dated 12.04.2021. During the course of decision making process, opinions were called for, from the Office of the Geology & Mining Department, who, had submitted its report dated 16.10.2020, clearly citing ten cases which were decided and LOI were issued after the introduction of the Rules of 2017. It is submitted that all the cases were treated as 'saved cases'. The Geologist, Geology & Mining Department, in closing paragraph has opined that ten cases, were considered favourably and LOI and environmental clearance were issued after the order was passed. It is submitted that, that is how, considering the report of the Geologist, Geology & Mining Department that the revisional authority has passed an order dated 12.04.2021 and while passing the order, it was specifically directed that the cases referred to in paragraph 7 be kept in mind while taking a decision. The Collector, Geology & Mining Department, was to take decision accordingly and more particularly, in terms of paragraph 7; however, the Collector, chose to reject the application by passing order dated 11.03.2022, citing the ground that the case of the petitioners cannot be considered as 'saved case' coupled with a direction that as per the provisions of Rule 4 of Rules of 2017 the land in question, is required to be disposed of conducting an auction. It is submitted that such a stand adopted by the Collector would not be in sync with the provisions of the amended Rules of 2017. 5.2. It is submitted that as can be discern out from the record, twice the matter was remanded to the Collector and the Collector, did not adhere to the directions issued by the revisional authority and rejected the same. 5.2. It is submitted that as can be discern out from the record, twice the matter was remanded to the Collector and the Collector, did not adhere to the directions issued by the revisional authority and rejected the same. It is submitted that such stand adopted by the Collector would be erroneous for, while passing the order dated 12.04.2021, opinions were called for from the Office of the Geology & Mining Department which, has referred to the ten cases wherein the LOI has been issued, even after the amendment in the Rules of 2017. That is how, in 2017, in another opinion also, the details of the grant of lease in the said ten cases were provided; however, the case of the petitioners was not considered discarding the cases of similarly situated applicants. 5.3 While referring to the amended Rule 29 of the Rules of 2017, it is submitted that the same, is in the nature of an exception. It states that without prejudice to the sub-rule(1) where, the government has communicated a prior written approval for grant of quarry lease or if the LOI has been issued in writing by the government to grant the quarry lease, the quarry lease shall be granted in accordance with the provisions of the Rules of 2017. In the case on hand, vide order dated 23.08.2004, passed by the Additional Director, Geology & Mining Department, it has been categorically observed that the request of the applicant for grant of quarry lease, be granted. Therefore, the case of the petitioners stands covered inasmuch as, the government, has given its approval for grant of quarry lease. 5.4. It is further submitted that the said aspect is strengthened by the communication dated 18.12.2018 issued by the Under Secretary, Industries and Mines Department, stating that the cases sanctioned prior to 24.05.2017 or in the cases where, direction have been issued to take steps in relation to the issuance of the LOI and if the order of the revisional authority is conditional and if the conditions, are fulfilled, the same, be considered as 'saved cases' and even the unconditional order be also treated as 'saved cases'. Therefore, the case of the petitioners having been considered by the state government by passing the order, it was to be treated as 'saved cases'. Therefore, the case of the petitioners having been considered by the state government by passing the order, it was to be treated as 'saved cases'. However, the Collector disregarded not only the orders passed by the revisional authorities but also the instruction dated 18.12.2018 issued by the Office of the Industries & Mines Department, and rejected the request of the petitioners for grant of quarry lease treating it as 'saved case'. 5.5. Reliance is placed on the order dated 28.04.2022 passed by the coordinate bench in the case of Ajit Singh Malubha Jadeja Vs. State of Gujarat in Special Civil Application No. 7751 of 2021. It is submitted that this Court, while considering Rule 29 of the Rules of 2017, concluded that the case can be said to be 'saved case' in view of the communication dated 18.12.2018 issued by the Industries & Mines Department read with sub-rule (2) of Rule 29 of the Rules of 2017. The order impugned was quashed and set aside and the matter was remitted with a direction to decide the application as 'saved case'. It is submitted that in almost all the cases, the LOI's were issued after the orders passed and therefore, the requirement that there has to be LOI issued prior in time, would also be incorrect. It is therefore submitted that the case of petitioners ought to have been considered as 'saved case' and the Collector ought to have granted the quarry lease to the petitioners in terms of the directions contained in the orders passed by the revisional authorities twice. Thus, petitions deserve to be allowed. 6. On the other hand Mr. Niraj Sharma, learned Assistant Government Pleader at the outset, has placed reliance on the judgment of this Court in the case of State of Gujarat vs. Giganbhai Nathubhai Karotara passed in Letters Patent Appeal no. 718 of 2023 and other allied matters. The issue, in the batch of the letters patent appeal, was whether in view of the amended Rules of 2017, direction could have been issued to the authorities to decide the application for grant of quarry lease and whether the statutory rules could be ignored or deviated from while considering the application. The issue was also as to whether the state government irrespective of operation of the rules could have by way of clarificatory circular carved out the category of 'saved cases'. 6.1. The issue was also as to whether the state government irrespective of operation of the rules could have by way of clarificatory circular carved out the category of 'saved cases'. 6.1. It is submitted that it is by now well settled that the applications, are to be decided as per the prevalent rules and the rules which were prevalent, has saved only those cases wherein, there was a prior written approval for grant of quarry lease communicated by the government or the LOI has been issued in writing by the government to grant the quarry lease. None of the eventualities are present in the case on hand. Considering the provisions of the rules so also the instructions issued in the year 2018 so also catena of decisions, this Court has held and observed that the Rules of 2017 as they came into force, the applications pending for grant of quarry lease were not liable to be considered as per the position obtaining before the rules. Therefore, the judgment applies on all fours to the facts of the present case and the petition deserves to be dismissed only on this count. 6.2. It is submitted that it has been argued by the petitioners that petitioners fulfill the first condition that is according of prior approval by the state government vide order dated 23.08.2004. By no stretch of imagination the said order can be treated as according the approval for, according approval is to mean a formal order passed by the government upon accepting the application of the petitioners for grant of quarry lease and not the orders passed in the proceedings. 6.3. It is submitted that heavy reliance is placed on the opinion given by the Geologist, Geology & Mining Department however, the reliance is erroneous for, it only says about the consideration and not a binding opinion. So far as the other similarly situated cases are concerned, it is also by now well settled that Article 14 is a positive concept and it will not be open for the parties to claim negative equality. It is submitted that similar such contention was raised before the Hon'ble Division Bench which, also has been negated. It has been held and observed that the benefit wrongly given or obtained cannot be a ground to invoke the equality clause. It is submitted that similar such contention was raised before the Hon'ble Division Bench which, also has been negated. It has been held and observed that the benefit wrongly given or obtained cannot be a ground to invoke the equality clause. While referring to the judgment of the Apex Court in the case of Basawaraj and Another Vs. Special Land Acquisition Officer reported in (2013) 14 SCC 81 , it has been held and observed that if similarly situated persons have been granted relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in the earlier case, it cannot be perpetuated. It is therefore submitted that on all the counts the petitions deserve rejection. 6.4. Reliance is also placed on the oral order in the case of Mohammed Rafik Alimohammed Sindhi vs. State of Gujarat passed in Special Civil Application No. 20131 of 2017. It is submitted that the coordinate bench, in fact, in another case, has not entertained the request of the petitioner therein and dismissed the writ petition. It is therefore submitted that the case of the petitioners has rightly been rejected by the Collector and it has been rightly observed that the land in question has to be disposed of by conducting auction as per Rule 4 of the Rules of 2017. It is therefore urged that the petition does not deserve to be entertained and deserves rejection. 7. Mr. S.I. Nanavati, learned Senior Counsel had requested for time to go through the judgment and to make submissions and accordingly, while responding, has fairly stated that so far as the issue of 'saved case' is concerned, it would be governed by the principle enunciated by the division bench in the case of State of Gujarat vs. Giganbhai Nathubhai Karotara (supra). It is submitted that the limited aspect which is available to the petitioner is that in the concluding paragraphs of the order dated 12.04.2021 passed by the appellate authority & Deputy Secretary (Mines), the revisional authority has specifically required the Collector to consider the cases mentioned in paragraph 7 referring to two cases namely one case of Surthan Sinh Maluba Jadeja and another case of Vela Rana Dangar and then to take a decision. The Collector, nowhere in its order dated 11.03.2022, considered the said direction and has simply rejected the application. It is therefore urged that for consideration of that limited aspect, the matter be remanded to the Collector with a direction to decide it accordingly. If that option is made available to the petitioners, the petitioners shall not press the other contentions raised during the course of the arguments. 8. Responding to the said submission Mr. Niraj Sharma, learned Assistant Government Pleader has submitted that such arguments would also not be available to the petitioners. Even if the matter is remanded, the same will be an exercise in futility for, the principle laid down by the Hon'ble Division Bench of this Court, would govern the issue and it would not be open for the authorities to go beyond either Rule 29 of the Rules of 2017 or the principles laid down by this Court. 9. Heard the learned Senior Counsel for the petitioners and the learned Assistant Government Pleader for the respondent and considered the documents available on record. 10. The challenge in the captioned writ petitions are the orders both dated 11.03.2022 passed by the Collector, Geology & Mining Department in respective writ petitions, whereby the application of the petitioners of respective petitions for grant of quarry lease, has been rejected on the ground that the case of the petitioners, cannot be treated as 'saved case' as per the Rules of 2017. Another ground which weighed with the Collector was that in view of the Rule 4 of Rules of 2017, the land in question, is to be disposed of by conducting an auction. With these two grounds the application of the petitioners for grant of quarry lease has been rejected. Initially, the contention raised by the learned Senior Counsel was that the case of the petitioners, ought to have been treated as 'saved case' for, directions in succession were issued by the revisional authority; however, the Collector has not considered the same and has rejected the application. 11. The Rules of 2017, came to be amended with effect from 09.03.2018. Initially, the contention raised by the learned Senior Counsel was that the case of the petitioners, ought to have been treated as 'saved case' for, directions in succession were issued by the revisional authority; however, the Collector has not considered the same and has rejected the application. 11. The Rules of 2017, came to be amended with effect from 09.03.2018. Notably, sub-rule (2) of Rule 29 of the Rules of 2017 came to be substituted which provides that without prejudice to sub-rule (1) where before the commencement of the rules, government has communicated a prior written approval for grant of quarry lease to an applicant or if a letter of intent has been issued in writing to an applicant by the government for grant of the quarry lease, the quarry lease can be granted in accordance with the provisions of sub-rule (3) to (6). Proviso came to be added providing for obtaining of an environmental clearance or an approval for change in land use to non-agricultural purpose; or an approval for mining plan for conducting the mining operations over the proposed lease area governed by the rules, prior to the commencement of the rules. Therefore, before commencement of the rules, if the government had communicated a prior written approval for grant of quarry lease or if the LOI has been issued in writing, granting quarry lease coupled with further rider that in the cases were either environmental clearance, or approval for change of land use to non-agricultural purposes or an approval for mining plan for conducting the mining operation, is obtained, the same can be treated as 'saved case'. The requirement, therefore, for falling within the 'saved cases' is prior written approval for grant of quarry lease by the State Government or issuance of LOI. Further proviso would be relevant which, states that a person shall make a written representation before the government with a relevant documents and if the government deems fit, shall issue LOI which would entitle such a person to obtain quarry lease in the same manner, as if such LOI was issued before the commencement of rules. 12. Further proviso would be relevant which, states that a person shall make a written representation before the government with a relevant documents and if the government deems fit, shall issue LOI which would entitle such a person to obtain quarry lease in the same manner, as if such LOI was issued before the commencement of rules. 12. It is the case of the petitioners that initially, the application was filed in the year 1997 which came to be decided vide order dated 15.01.2004 which was subject matter of challenge before the revisional authority who, vide order dated 23.08.2004, has quashed and set aside the order dated 15.01.2004 and remanded the matter to the Collector to decide it afresh. The said order dated 23.08.2004, is argued that it is the prior approval. The order by no stretch of imagination can be construed to be a prior approval. It has to be formal order by the State Government and not order by the adjudicating authority. 13. Therefore, if the petitioners wanted to qualify, either of the conditions enumerated in sub-rule (2) or in the proviso ought to have been satisfied. In the present case, the petitioners are unable to point out either of the conditions or eventualities required as per rule 29 of Rules of 20178 and more particularly, sub-rule (2) of the Rules of 2017 read with first proviso of Rule 29 of the Rules of 2017. In none of the orders or any documents on record, it is coming out that the petitioners were having either the approval or the LOI or any of the instances provided in the proviso to Rule 29. The instructions have been taken recourse of, to contend that the author has provided clarification and if the case, falls within the clarification, the authorities ought to have consider the cases. The application was filed and it was rejected first in the year 2004 and thereafter, with no further orders at the end of the state government, the matter remained at the level of the authorities. Clearly, there was neither any prior written approval nor any LOI was in place in favour of the petitioners. After the amendment Rule 29 of the Rules of 2017 speaks thus: "29. Clearly, there was neither any prior written approval nor any LOI was in place in favour of the petitioners. After the amendment Rule 29 of the Rules of 2017 speaks thus: "29. Existing applications and right of holder of letter of intent.- (1) All applications for grant of a quarry lease received prior to the date of commencement of these rules shall become ineligible. After the amendment Rule 29 of the Rules of 2017 speaks thus: "29. Existing applications and right of holder of letter of intent.- (1) All applications for grant of a quarry lease received prior to the date of commencement of these rules shall become ineligible. (2) Without prejudice to sub-rule (1), where before the commencement of these rules, the Government has communicated a prior written approval for grant of a quarry lease to an applicant; or if a letter of intent has been issued in writing to an applicant by the Government to grant a quarry lease, the quarry lease shall be granted in accordance with the provisions of sub-rules (3) to (6) (inclusive): Provided that, if an applicant has applied for an obtained (a) an environmental clearance; or (b) an approval for change in land use to non-agricultural purposes, (c) an approval for mining plan, for conducting mining operations over the proposed lease area governed by these rules, prior to the commencement of these rules: Provided further that, such person shall make a representation before the Government with relevant documents and if Government deems fit, shall issue letter of Intent, which shall entitle such person to obtain a quarry lease, in the same manner as if such letter of intent was issued before the commencement of these rules.] (3) The Government shall issue an order in writing for found of a quarry lease to the holder of a satisfaction of the letter of intent upon following conditions within a period of two years from the date of commencement of these rules, failing which the right of such an applicant for grant of a quarry lease shall be forfeited automatically and in such cases, the Government would not be required to issue any order for this purpose: (a) fulfilment of the conditions of the prior approval or the letter of intent; (b) the holder of letter of intent having obtained all consents, approvals, permits, no-objections and the like as may be required under applicable laws for commencement of mining operations; (c) the holder of letter of intent having satisfied the conditions specified in CHAPTER VIII with respect to a mining plan (including the mine closure plan); (d) furnishing financial assurance as specified in rule 64: Provided that upon receipt of a written application, stating reasons for non-fulfilment of the conditions within a period of two years, the Government may, for reasons recorded in writing, extend the period of two years by an additional period of not more than six months: Provided further that, save for the right to receive a quarry lease pursuant to the prior approval or the letter of intent, these rules shall apply to quarry lease granted pursuant to the prior approval or the letter of intent. (4) The order for grant of a quarry lease shall be in writing and shall inter alia also specify that the person in whose favour the order has been issued shall be required to furnish a performance security in accordance with such order in the form of a bank guarantee as per the format specified in Form A or a non- interest bearing security deposit. (5) A quarry lease deed shall be executed in the format specified in Form B by the Government within thirty days of the date of completion of the conditions specified in sub-rule (4) and shall be subject to the provisions of the Act and the rules made thereunder. (6) Any letters of intent granted pursuant to an auction process in the State shall continue to be governed by the tender documents relating to such auctions and a quarry lease deed shall be executed in the format specified in Form F by the Government within such period as specified in the grant order. The provisions of sub-rule (2) to (5) shall not apply to such letters of intent: Provided that save for the right to receive a quarry lease pursuant to the letter of intent, these rules shall apply to quarry lease granted pursuant to the letter of intent. The date on which a duly executed quarry lease deed is registered shall be the date of commencement of the quarry lease, and the holder of the letter of intent shall ensure that it achieves registration of the quarry lease deed within thirty days from the date of its execution." 14. In the present case, as discussed hereinabove, there is nothing on record to suggest that either of the eventualities were fulfilled by the petitioners and therefore, in absence thereof, the judgment in the case of State of Gujarat vs. Giganbhai Nathubhai Karotara (supra), applies on all fours. The issue before the division bench was whether any direction can be issued to decide the applications for grant of quarry lease, uninfluenced by the rules and as to whether the statutory rules could be ignored or deviated from, while considering the application. The issue was also as to whether the State Government, irrespective of the operation of the rules, could have by way of clarificatory circular carved out the category of 'saved case'. The issue was also as to whether the State Government, irrespective of the operation of the rules, could have by way of clarificatory circular carved out the category of 'saved case'. Rule 29 of the amended Rules of 2017 was threadbare considered by the Hon'ble Division Bench and so also Rule 4 of the Rules of the 2017. It has been held and observed that once the rule hold the field which provided particular method of disposal of quarry lease application the same has to be applied in all the cases. Undecided pending applications could not have permitted to be governed by the earlier procedure. 15. Moreover, clarificatory communication dated 18.12.2018 was also considered and the division bench has pointed out that the said instruction, is contrary to the statutory rules holding the field. More particularly, when the pending quarry lease applications were provided to be treated ineligible, unless, there is a prior written approval of the government or LOI issued in place before introduction of the Rules of 2017. The division bench, therefore, has declared the administrative instructions, the circular or clarification having no efficacy, much less, any binding effect when pitted against the statutory rules. The division bench, therefore held that any such policy stipulation or administrative instructions running against the Rules of 2017 was not permissible. Paragraph 5 and other sub-paragraphs are reproduced herein below: "5. In the setting of the above facts, three main questions arise for consideration. 5.1 Firstly, whether in view of the statutory Rules called Gujarat Minor Mineral Concession Rules, 2017, having come into force on 24.05.2017, learned Single Judge could have directed the authorities to decide the applications for grant of quarry lease, uninfluenced by the said Rules. Whether statutory Rules could be ignored or deviated from in considering the applications. 5.1.1 Secondly, whether the State Government irrespective of operation of the Rules, could have by way of clarificatory circular carved out category of 'saved cases' to provide that in respect to the pending undecided applications dealt with by the Revisional Authorities, the applications could be processed for grant of quarry lease; 5.1.2 The third aspect required to be considered, as was contended, is whether on account of other persons stated to be similarly situated in another district, came to be granted quarry lease, the present petitioners could claim equal treatment with them to be given the quarry lease. 5.2 Noticing the statutory Rules of 2017, before proceeding further, the statutory Rules may be referred to. 5.2.1 In the aforesaid Rules, under Chapter VI, titled as Grant of Quarry Lease pursuant to Existing Approval, Rule 29 figures. The said Rule upto sub-rule (3) is reproduced hereinbelow, "(1) All applications for grant of a quarry lease received prior to the date of commencement of these rules shall become ineligible. 5.2.1 In the aforesaid Rules, under Chapter VI, titled as Grant of Quarry Lease pursuant to Existing Approval, Rule 29 figures. The said Rule upto sub-rule (3) is reproduced hereinbelow, "(1) All applications for grant of a quarry lease received prior to the date of commencement of these rules shall become ineligible. (2) Without prejudice to sub-rule (1), where the Government has communicated a prior written approval for grant of a quarry lease or if a letter of intent has been issued in writing by the Government to grant a quarry lease, before the commencement of these rules, the quarry lease shall be granted in accordance with the provisions of sub-rules (3) to (6) (inclusive): (3) The Government shall issue an order in writing for grant of a quarry lease to the holder of a letter of intent upon satisfaction of the following conditions within a period of two years from the date of commencement of these rules, failing which the right of such an applicant for grant of a quarry lease shall be forfeited automatically and in such cases, the Government would not be required to issue any order for this purpose: (a) fulfilment of the conditions of the prior approval or the letter of intent; (b) the holder of letter of intent having obtained all consents, approvals, permits, no-objections and the like as may be required under applicable laws for commencement of mining operations; (c) the holder of letter of intent having satisfied the conditions specified in Chapter VIII with respect to a mining plan (including the mine closure plan); (d) furnishing financial assurance as specified in rule 64: Provided that upon receipt of a written application, stating reasons for non fulfilment of the conditions within a period of two years, the Government may, for reasons recorded in writing, extend the period of two years by an additional period of not more than six months: Provided further that, save for the right to receive a quarry lease pursuant to the prior approval or the letter of intent, these rules shall apply to quarry lease granted pursuant to the prior approval or the letter of intent." 5.2.2 Sub-rule (1) of Rule 29, as could be eminently noticed, provided that all applications for grant of quarry lease received prior to the date of commencement of the Rules shall become ineligible. According to sub-rule (2), in the cases where the Government has communicated a prior written approval or Letter of Intent has been issued before the commencement of the Rules, quarry lease shall be granted in accordance with the provisions of sub-rule (3) to sub-rule (6), all inclusive. 5.2.3 Sub-rule (4) and sub-rule (5) are in respect of bank guarantee, whereas sub-rule (6) says that any Letter of Intent granted pursuant to auction process in the State shall continue to govern by the tender documents. As per sub-rule (7), date on which the duly executed quarry lease deed is registered, shall be the date of commencement. 5.3 Rule 4 of the aforesaid Rules of 2017 regarding grant of quarry lease provided that a quarry lease shall be granted by the Government through electronic auction process. The procedure was prescribed for submitting the bids and about the prerequisites to be observed for conduct of auction. A detailed procedure was laid down in the new Rules as to how, by process of auction, the quarry lease have to be granted. Rule 5 stated about bidding parameters. Rule 6 is about notice inviting tender and tender document. Rule 7 deals with the auction process and so on. In other words, introduction of Gujarat Minor Mineral Concession Rules, 2017, brought about the major change in respect of process of granting quarry leases. The applications pending on the date of coming into force were also treated in Rule 29 to provide that all will be rendered ineligible unless prior approval is granted or Letter of Intent is issued to the applicant. 5.4 As per Rule 29, the applications of the petitioners were not eligible. In their case, no prior written approval was granted by any competent authority for grant of lease, no Letter of Intent was issued to bring about the entitlement or consideration of the applications. The Rules of 2017 had already come into play with effect from 25.04.2017. The Revisional Authority had only remanded the case. Even otherwise, the quarry lease could not be granted bypassing the statutory Rules in force. 5.5 Once the Rule hold the field, which provided a particular method of disposal of quarry lease applications, the have to be applied to all cases. The undecided pending applications could not be permitted to govern by earlier procedure. The Collector rightly treated the applications of the petitioners to be ineligible. 5.5 Once the Rule hold the field, which provided a particular method of disposal of quarry lease applications, the have to be applied to all cases. The undecided pending applications could not be permitted to govern by earlier procedure. The Collector rightly treated the applications of the petitioners to be ineligible. As the method of auction was provided in the new Rules, it was always open to the petitioners to participate in the auction as and when held for grant of quarry in respect of the land they requested for. 5.5.1 Merely because the Revisional Authority remanded the case before coming into force of the Rule, it would not create any right for the petitioners for grant of quarry lease. Nor there is a substance in the contention that the Collector decided after passage of time and the statutory Rules in the meantime came into force. The time element of coming into force of the Rules and the decision of the Collector treating the applications of the petitioners ineligible under the Rules was only fortuitous and nothing could be make out of it. 5.5.2 The so called clarificatory communication dated 18.12.2018 from the Industries and Mines Department 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 ineligible unless the Letter of Intent was already issued before the coming into play of the Rules. 5.6 It is trite that administrative instruction, circular or clarifications have no efficacy, much less binding effect, when pitted against the statutory rules. Communication dated 18.12.2018 was indeed an internal exchange of view in the nature of administrative clarification by the authorities, which cannot be permitted to have effect in law to override what is provided in the statutory Rules. The principles on this score, is unequivocal. 5.6.1 In Punjab Water Supply & Sewerage Board vs. Ranhodh Singh and Ors.[ (2007) 2 SCC 491 ], which was in the context of service law, propounded the same principle. The principles on this score, is unequivocal. 5.6.1 In Punjab Water Supply & Sewerage Board vs. Ranhodh Singh and Ors.[ (2007) 2 SCC 491 ], which was in the context of service law, propounded the same principle. It was held that once the terms and conditions of the service including recruitment of employees, were to be governed either by statutory Rules or Rules framed under the proviso to Article 309 of the Constitution, it must necessarily be held that any policy decision adopted by the State in exercise of its jurisdiction under Article 162 of the Constitution would be illegal and without jurisdiction. 5.6.2 The Supreme Court in Punjab Water Supply & Sewerage Board (supra) observed, "In the instant case, the High Court did not issue a writ of mandamus on arriving at a finding that the respondents had a legal right in relation to their claim for regularisation, which it was obligated to do. It proceeded to issue the directions only on the basis of the purported policy decision adopted by the State. It failed to notice that a policy decision cannot be adopted by means of a circular letter and, as noticed hereinbefore, even a policy decision adopted in terms of Article 162 of the Constitution of India in that behalf would be void. Any departmental letter or executive instruction cannot prevail over statutory rule and constitutional provisions. Any appointment, thus, made without following the procedure would be ultra vires." (para 19) 5.6.3 In the similar way, in Vinod Kumar Koul vs. State of Jammu and Kashmir [ (2012) 11 SCC 247 ], it was a Circular dated 20.05.1993 in the nature of administrative decision of the service selection board. The Supreme Court found it ex facie inconsistent with the plain language of Rule 13(i) of the Jammu and Kashmir Subordinate Services Recruitment Rules, to hold that it cannot be relied upon for determining the eligibility of appellant. In that case, the circular provided the stipulation of a candidate required to be a permanent resident of the State of Jammu & Kashmir to be eligible for the post of Laboratory Assistant holding that the appellant could not have been discarded from the zone of consideration on the basis of the circular when nothing of the kind was contemplated in the statutory rules. The said principle will apply with reverse logic in the present case. The said principle will apply with reverse logic in the present case. 5.6.4 In yet another decision in Commissioner of Central Excise, Bolpur vs. M/s. Ratan Melting and Wire Industries [ (2008) 13 SCC 1 ]. It was observed in the context of circular issued by the Central Excise Board, "So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the Court to declare what the particular provision of statute says and it is not for the Executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law." (para 6) 5.6.5 In Glaxosmithkline Pharmaceuticals Limited vs. Union of India and Ors.[ (2014) 2 SCC 753 ], the Supreme Court stated in paragraph 60 that "it is well settled that if the departmental circular provides for an interpretation which runs contrary to the provisions of law, such interpretation cannot bind the Court." 5.7 Therefore, when the State Government provided by aforesaid communication dated 18.12.2018 to classify certain cases of the nature dealt with by the Revisional Authority before 24.05.2017 to be 'saved cases', such instruction cannot stand in wake of the statutory Rules. Any such policy stipulation or administrative instruction running against Gujarat Minor Mineral Rules, 2017, was not permissible. In classifying the cases as 'saved cases', the respondents acted without authority in law. 5.7 Any application liable to be considered after coming into force of the statutory rules could not have been treated de hors the Rules. The undecided pending applications of the petitioners under the earlier procedure were left dead. 5.8 The contention could hardly stand valid that since in another district, the similarly situated persons were treated in particular fashion, the petitioners should also be treated accordingly. The petitioners could not involve Article 14 in negative way in their favour. It is already reiterated that guarantee of equality before the law is a positive concept and cannot be enforced in negative manner. 5.8.1 If the settled law is to be reiterated, in State of U.P. vs. Rajkumar Sharma (2006) 3 SCC 330 , it was observed in paragraph 15, that if the State has committed the mistake, it cannot force to perpetuate the same mistake. 5.8.1 If the settled law is to be reiterated, in State of U.P. vs. Rajkumar Sharma (2006) 3 SCC 330 , it was observed in paragraph 15, that if the State has committed the mistake, it cannot force to perpetuate the same mistake. In State of West Bengal vs. Debosis 2011(14) SCC 187 , following was observed by the Supreme Court, "It is now well settled that guarantee of equality before law is a positive concept and cannot be enforced in a negative manner. If an illegality or an irregularity has been committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction of Courts and Tribunals to require the state to commit the same irregularity or illegality in their favour on the reasoning that they have been denied the benefits which have been illegally or arbitrarily extended to others. [See : Gursharan Singh vs. New Delhi Municipal Administration - 1996 (2) SCC 459 , Union of India vs. Kirloskar Pneumatics Ltd. - 1996 (4) SCC 433 , Union of India vs. International Trading Co. - 2003 (5) SCC 437 , and State of Bihar vs. Kameshwar Prasad Singh - 2000 (9) SCC 94 ." (para 26) 5.8.2 In Ford Corporation of India vs. Jagdish Balaram Bahira (2017) 8 SCC 670 , the Supreme Court observed that 'Administrative circulars and government resolutions are subservient to legislative mandate and cannot be contrary either to constitutional norms or statutory principles". Also in Chebrolu Leela Prasad Rao vs. State of Andhra Pradesh (2021) 11 SCC 401 , in which the principle was succinctly stated by the Apex Court, "The concept of equality cannot be pressed to commit another wrong. The concept of equality enshrined in Article 14 of the Constitution is a positive concept. It is not a concept of negative equality. It cannot be used to perpetuate an illegality. Equity cannot be applied when it arises out of illegality. The doctrine of equity would not be attracted when the benefits were conferred on the basis of illegality, as held in Usha Mehta v. Government of Andhra Pradesh (2012) 12 SCC 419 , John Vallamattom v. Union of India, (2003) 6 SCC 611 , General Manager, Uttranchal Jal Sansthan v. Laxmi Devi, (2009) 7 SCC 205 , State of West Bengal v. Debashish Mukherjee, AIR 2011 SC 3667 ]. (para 95) 5.8.3 Therefore, the petitioners had no legs to stand to contend that since others are granted the quarry lease, their case should also be considered in like manner. The benefit wrongly given or obtained cannot be a ground to invoke the equality clause. This was stated by the Supreme Court in Basawaraj and Another Vs. Special Land Acquisition Officer, (2013) 14 SCC 81 , "Article 14 does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/ benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated." 16. In paragraph 6, the division bench has concluded that the Rules of 2017 as they came into force, the applications pending for grant of quarry lease were not liable to be considered as per the position obtaining before coming into force of the rules. The new statutory rules are to be necessarily applied to all the cases for grant of quarry lease rendering all earlier applications as ineligible and redundant. Paragraph 6 reads thus: "6. The inescapable conclusion emerges is that the Gujarat Minor Mineral Rules, 2017, as they came into force, the applications pending for grant of quarry lease were not liable to be considered as per the position obtained before the Rules. The new statutory Rules are to be necessarily applied for all cases of grant of quarry lease. The petitioners' applications were rendered ineligible and redundant. 6.1 As rightly observed by the Collector, the petitioners could participate in auction procedure, which may be undertaken as per the in-force statutory rules. 6.2 The decision of the Collector treating the applications of the petitioners to be ineligible was eminently proper and legal. 6.3 A manifest error was committed by learned Single Judge in recording the findings and passing the order setting aside the decision of the Collector and relying on the clarification dated 18.12.2018 to remand the case. 6.4 For the foregoing reasons and discussion, the impugned order in both the cases along with findings and directions of learned Single Judge do not sustain in the eye of law. Resultantly, impugned judgment and order dated 02.05.2022 passed in both the Special Civil Applications are set aside." 17. 6.4 For the foregoing reasons and discussion, the impugned order in both the cases along with findings and directions of learned Single Judge do not sustain in the eye of law. Resultantly, impugned judgment and order dated 02.05.2022 passed in both the Special Civil Applications are set aside." 17. Thus, the contention raised of 'saved cases' cannot be accepted and is hereby rejected. Similarly, the contention seeking parity would also not help the petitioners. It is by now well settled that guarantee of equality is positive concept and cannot be enforced in a negative manner. If an illegality or irregularity has been committed in favour of any individual or any group of individuals, others cannot invoke the jurisdiction of Court to require the State to commit the same illegality or irregularity in their favour on the ground that they have been deprived of the benefit. All the aspects raised by the petitioner, stand answered by the above-quoted judgment, and hence, contentions raised, do not merit acceptance. Considering the facts on hand so also, the provisions of the rules and the judgment, petitions do not deserve to be entertained. 18. Besides, during the course of submissions, it was also suggested that if the matter is remanded, the petitioners may give up his other contentions. Pertinently, the division bench, has clearly held that when the rules provide for an inbuilt mechanism, for disposal of the quarry lease, it had to apply to all the cases. Undecided pending applications cannot be permitted to be governed by the earlier procedure, except the case of prior approval by the state government or the issuance of the LOI. In the present case neither of it is available and therefore, when the petitioners have failed to make out any case of falling within the exception, such request does not deserve to be accepted and is hereby rejected. 19. On overall consideration, the captioned writ petitions do not warrant interference and are hereby rejected. Rule is discharged. No order as to costs. Interim relief, if any, stands vacated.