Gujarat High Court
State Of Gujarat vs Giganbhai Nathubhai Karotara on 13 October, 2023
Author: Sunita Agarwal
Bench: Sunita Agarwal, N.V.Anjaria
NEUTRAL CITATION
C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 718 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 20301 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In R/LETTERS PATENT APPEAL NO. 718 of 2023
With
R/LETTERS PATENT APPEAL NO. 787 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 20272 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In R/LETTERS PATENT APPEAL NO. 787 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 20272 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be Yes
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the No
fair copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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STATE OF GUJARAT
Versus
GIGANBHAI NATHUBHAI KAROTARA
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Appearance:
MR KRUTIK PARIKH, AGP for the Appellant(s) No. 1,2,3,4
MR MAULIK NANAVATI, ADVOCATE with MS NAMRATA HARISHBHAI
CHAUHAN(6534) for the Respondent(s) No. 1
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NEUTRAL CITATION
C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 13/10/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) In both these Letters Patent Appeals, the State has called in question the judgment and order both dated 02.05.2022 passed by learned Single Judge in the respective Special Civil Applications.
2. As per the decision communicated on 24.06.2021 by the District Collector, Rajkot, treating ineligible the applications of both the respondents-original petitioners were treated to be ineligible for grant of quarry lease. This decision came to be set aside by learned Single Judge. It was held that the cases of the petitioners for grant of quarry lease were required to be treated as 'saved cases'.
2.1 A further direction was issued to reconsider the applications of the petitioners in light of the observations made by the Revisional Authority, providing also that such reconsideration shall be done without influenced by Rule 29 of the Gujarat Minor Mineral Concession Rules, 2017.
Page 2 of 25 Downloaded on : Mon Oct 16 20:43:21 IST 2023NEUTRAL CITATION C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023 undefined 2.2 Since both the Letters Patent Appeals involve common thread of facts and identical issues, the Appeals were heard together to be treated for disposal simultaneously by this judgment.
3. In the Special Civil Applications, both the petitioners prayed to direct the respondent authorities to issue Letter of Intent in compliance of the order dated 20.06.2016 passed by the Revisional Authority read with clarification dated 18.12.2018 issued by respondent no.1-Secretary, Industries and Mines Department, wherein it was directed the Collector to treat certain cases as 'saved cases' for the purpose of grant of quarry lease.
3.1 It was next prayed to set aside the communication dated 24.06.2021 of respondent no.4- the Geologist, whereby, the Geologist conveyed to the petitioners that their applications for quarry lease were ineligible in view of Rule 29(1)(2) of the Gujarat Minor Mineral Concession Rules, 2017 (hereinafter referred to as the 'Minor Mineral Rules'). The said Rules came into force having been notified under Notification dated 24.05.2017.
3.2 Narrating the relevant facts and outlining the events in the background, the petitioner of the first case made application dated 15.01.2014 for Page 3 of 25 Downloaded on : Mon Oct 16 20:43:21 IST 2023 NEUTRAL CITATION C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023 undefined grant of quarry lease in respect of Government land bearing Survey No. 650 paiki admeasuring 2 hectares situated at village Dhank, Taluka Upleta, District Rajkot for the purpose of lime stone mineral. In the second case, the application was in respect of Survey No. 650 paiki admeasuring 3.40 hectares situated at same village and land was demanded for the same purpose.
3.2.1 The Applications came to be rejected by order dated 18.05.2015 passed by the competent authority. Against the said order rejecting the applications, the petitioners filed Revision Applications on 29.06.2015 under Rule 65(1) of the Gujarat Minor Mineral Rules, 2010. For the reasons spelt out in the order, the Revisional Authority found the Revision Application to be acceptable. The Revisional Authority passed order dated 20.06.2016 setting aside the order of the Collector, whereby the petitioners were held ineligible for grant of quarry lease, directing the Collector to pass a fresh order.
3.2.2 Upon remand as above, by the District Collector, Rajkot, in both the cases, passed order dated 30.05.2018 and dated 24.05.2018 respectively, refusing to accept the petitioners' request for grant of quarry lease. The Collector relied on Notification dated 24.05.2017 whereby the Minor Page 4 of 25 Downloaded on : Mon Oct 16 20:43:21 IST 2023 NEUTRAL CITATION C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023 undefined Mineral Rules, 2017, were notified and brought into force.
3.2.3 The Collector further stated in his order that the area under demand was required to be disposed of for quarry lease only by way of public auction. The Collector stated to provide that the petitioners could also participate in the auction in accordance with the rules. In other words, the Collector ordered that applications for grant of quarry lease, were not liable to be accepted straightway as per earlier procedural regime, in view of the new statutory Rules having come into force. The Rule 29(2) of the Rules provided that the pending applications shall be treated to be ineligible.
3.3 The petitioners thereafter addressed representations to the Collector, in which it was submitted that since the Secretary (Appeals) had remanded the case, the applications were required to be accepted. The petitioners contended in their representations that the orders were passed in similar cases in Junagadh district in respect of persons stated to be similarly situated, for grant of lease as per the old procedure, to request to treat their cases favourably.
3.4 When the Notification dated 24.05.2017 Page 5 of 25 Downloaded on : Mon Oct 16 20:43:21 IST 2023 NEUTRAL CITATION C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023 undefined notifying the Minor Mineral Rules was published, bringing into force the said Rules, certain applications were pending for grant of quarry lease. It appears that confusion prevailed at the end of authorities. Clarification was sought for by communication dated 20.10.2018 by the office of the Collector, Porbandar, from the Industries and Mines Department. Thereupon, communication dated 18.12.2018 was addressed from the Industries and Mines Department.
3.5 It was stated in the said clarificatory communication dated 18.12.2018, inter alia that in all those cases where Letters of Intent were issued prior to 25.04.2017, that is, before the date of notification of Rules, further procedure would have to be undertaken in accordance with Rule 29(2) of the said Gujarat Minor Mineral Rules, 2017. It was stated that in respect of those instances where the cases had been approved by the Revisional Authority before 24.05.2017 or in those cases where directions were issued for entering into agreement, in respect of such category of cases, upon satisfying the conditions that may have been imposed by the Revisional Authority, if any, or where the orders were without any conditions, such cases shall be treated as 'saved cases'. It was stated that in respect of 'saved cases', both for Page 6 of 25 Downloaded on : Mon Oct 16 20:43:21 IST 2023 NEUTRAL CITATION C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023 undefined the Government land and private land, the applications would be proceeded for grant of quarry lease.
3.6 On the basis of above clarification put forward by the authorities, the petitioners wanted the applications to be considered without applying the provisions of Rule 29 of the Minor Mineral Rules as 'saved cases'. Nothing was to yield for the petitioners pursuant to the representations they had made, rather, by communication dated 24.06.2021, the Geologist informed the petitioners that in their case, any order before 24.05.2017-the date of the Notification-was not passed by the Government and that in view of operation of rule 29(2) of the Rules of 2017, the applications of the petitioners would not be considered.
3.7 The aforesaid decision dated 24.06.2021 led the petitioners to file substantive Special Civil Application No. 5799 of 2021 and Special Civil Application No. 5791 of 2021 respectively, which, by order of this Court dated 19.05.2021 came to be disposed of.
3.7.1 What is noticeable from the order dated 19.05.2021 and dated 13.09.2021 respectively, passed in the said petitions is that learned Assistant Government Pleader appearing on behalf of Page 7 of 25 Downloaded on : Mon Oct 16 20:43:21 IST 2023 NEUTRAL CITATION C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023 undefined State made a statement that "the grievance of the petitioner will be considered and the authority will take appropriate decision within a period of two days from today considering the fact that time to execute the lease deed in case if the petitioner succeeds in getting the Letter of Intent expiring on 23.05.2021".
3.7.2 A further statement was made by learned Assistant Government Pleader, and recorded that "..once the petitioner's limited grievance raised in this petition in respect of the grant of Letter of Intent is redressed, for any further relief, the petitioner may not pray for revival of this petition and may avail appropriate remedy by filing a fresh petition". Pursuant to above statement by learned Assistant Government Pleader, learned advocate for the petitioners withdrew the petitions. The statement made by learned Assistant Government Pleader was suggestive that the grievance of the petitioner would be considered and would be redressed by granting the Letter of Intent.
3.8 Post the aforesaid order, the Collector passed order dated 24.06.2021, again rejecting the request of the petitioners. The petitioners filed restoration application seeking to revive the Special Civil Applications. Ultimately, the Page 8 of 25 Downloaded on : Mon Oct 16 20:43:21 IST 2023 NEUTRAL CITATION C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023 undefined petitioners withdrew the applications as per order dated 22.10.2021 with a view to file substantive petition for the same relief.
3.9 It is thereafter that the present petitions by the respective aggrieved petitioners came to be filed impugning aforementioned order dated 24.06.2021 in writ petitions, culminating into judgment and order of learned Single Judge, now under challenge in the present Letters Patent Appeals.
4. Learned Single Judge while allowing the petitions and setting aside the decision of the District Collector treating the applications of the petitioners to be ineligible for grant of quarry leases, inter alia observed that the remand of the case by the Revisional Authority was on 20.06.2016 and that the Collector took the decision at a later stage, and that it was only in the meantime that the Rules had come into force. Learned Single Judge then took the view to observe "in any event, the Government of Gujarat had clarified by communication dated 18.12.2018 that all cases where the Revisional Authority has passed an order allowing the Revision including by way of remanding the matter back to the District Collector for fresh consideration, the same shall be treated as 'saved cases', that is, to say that these cases shall have Page 9 of 25 Downloaded on : Mon Oct 16 20:43:21 IST 2023 NEUTRAL CITATION C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023 undefined to be treated and considered independent of the provisions of Rules of 2017."
4.1 Learned Single Judge further stated "...a Coordinate Bench of this Court in Special Civil Application No.5799 of 2021 recorded the statement on behalf of the respondent authority that the case of the petitioner shall be considered and that the authority shall take appropriate decision as regards the application of the petitioner for grant of quarry lease. In light of such statement made by the learned AGP, on instructions, the rejection of the application of the petitioner by the District Collector on 30.5.2018 as having become ineligible looses, its relevance and significance and pales into oblivion".
4.1.1 It was the view of learned Single Judge also that the communication dated 24.06.2021 by the Collector was not the decision, "The communication dated 24.6.2021, as rightly contended by the learned counsel for the petitioner, cannot be treated or considered as an order by the District Collector. It is in the nature of communication informing the petitioner that his application has become ineligible for consideration in light of Rules of 2017".
4.1.2 According to learned Single Judge in light Page 10 of 25 Downloaded on : Mon Oct 16 20:43:21 IST 2023 NEUTRAL CITATION C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023 undefined of such statement made by learned Assistant Government Pleader, the rejection of the application of the petitioners by the District Collector, treating the applicants to be ineligible looses its relevance and was of no significance. As noted above, learned Single Judge viewed that communication dated 24.06.2021 of the Collector could not be treated as an order of the Collector, but was only in the nature of communication informing the petitioner that the application had become ineligible in view of the Rules of 2017. Learned Single Judge, surprisingly enough was of the view that the said communication exhibited non- application of mind.
4.2 It was on such premise of the grounds and reasoning that learned Single Judge set aside the communication dated 24.06.2021 of the District Collector. The direction was issued that "The matter is remitted back to the Collector to decide the application of the petitioner afresh in light of the observations made by the Revisional Authority in its order dated 20.6.2016 without being influenced by the Rule 29 of Gujarat Minor Minerals Concession Rules, 2017, preferably within a period of three weeks.."
4.3 In other words, learned Single Judge expressly directed the authority to decide the Page 11 of 25 Downloaded on : Mon Oct 16 20:43:21 IST 2023 NEUTRAL CITATION C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023 undefined application without influenced by Rule 29 of the Gujarat Minor Mineral Concession Rules, 2017. The directions of learned Single Judge thus left no room for the Collector, but to decide the quarry lease applications de hors the statutory rules, in favour of the petitioners.
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 Page 12 of 25 Downloaded on : Mon Oct 16 20:43:21 IST 2023 NEUTRAL CITATION C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023 undefined 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.
(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, Page 13 of 25 Downloaded on : Mon Oct 16 20:43:21 IST 2023 NEUTRAL CITATION C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023 undefined 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 Page 14 of 25 Downloaded on : Mon Oct 16 20:43:21 IST 2023 NEUTRAL CITATION C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023 undefined 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 Page 15 of 25 Downloaded on : Mon Oct 16 20:43:21 IST 2023 NEUTRAL CITATION C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023 undefined 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. As the method of auction was provided in the new Rules, it was always open to the petitioners to participate in Page 16 of 25 Downloaded on : Mon Oct 16 20:43:21 IST 2023 NEUTRAL CITATION C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023 undefined 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.
Page 17 of 25 Downloaded on : Mon Oct 16 20:43:21 IST 2023NEUTRAL CITATION C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023 undefined 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. 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 Page 18 of 25 Downloaded on : Mon Oct 16 20:43:21 IST 2023 NEUTRAL CITATION C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023 undefined 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 Page 19 of 25 Downloaded on : Mon Oct 16 20:43:21 IST 2023 NEUTRAL CITATION C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023 undefined statutory rules. 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 Page 20 of 25 Downloaded on : Mon Oct 16 20:43:21 IST 2023 NEUTRAL CITATION C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023 undefined 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 Page 21 of 25 Downloaded on : Mon Oct 16 20:43:21 IST 2023 NEUTRAL CITATION C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023 undefined 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 Page 22 of 25 Downloaded on : Mon Oct 16 20:43:21 IST 2023 NEUTRAL CITATION C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023 undefined 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."
6. The inescapable conclusion emerges is that the Page 23 of 25 Downloaded on : Mon Oct 16 20:43:21 IST 2023 NEUTRAL CITATION C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023 undefined 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 Page 24 of 25 Downloaded on : Mon Oct 16 20:43:21 IST 2023 NEUTRAL CITATION C/LPA/718/2023 CAV JUDGMENT DATED: 13/10/2023 undefined in both the Special Civil Applications are set aside.
7. The two Letters Patent Appeals stand allowed.
Connected Civil Applications shall stand disposed of in view of the order passed in the Letters Patent Appeals.
(SUNITA AGARWAL, CJ ) (N.V.ANJARIA, J) BIJOY B. PILLAI Page 25 of 25 Downloaded on : Mon Oct 16 20:43:21 IST 2023