Ibrahim Hasan Koreja vs State Of Gujarat on 6 October, 2018

[Cites 25, Cited by 0]

Gujarat High Court

Ibrahim Hasan Koreja vs State Of Gujarat on 6 October, 2018

Bench: C.L. Soni

         C/SCA/9174/2018                                      ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 9174 of 2018
                               With
           R/SPECIAL CIVIL APPLICATION NO. 10341 of 2018
                               With
           R/SPECIAL CIVIL APPLICATION NO. 9355 of 2018
                               With
           R/SPECIAL CIVIL APPLICATION NO. 9556 of 2018
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                           IBRAHIM HASAN KOREJA
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
LEARNED SENIOR ADVOCATE MR.SHALIN MEHTA with MR VAIBHAV A
VYAS(2896) for the PETITIONER(s) No. 1
MR.D K.PUJ(3836) for the PETITIONER(s) No. 1
 for the RESPONDENT(s) No. 4
MS.NISHA THAKORE, ASST. GOVERNMENT PLEADER/PP(99) for the
RESPONDENT(s) No. 1
MR RITURAJ M MEENA(3224) for the RESPONDENT(s) No. 3
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2
==========================================================

 CORAM: HONOURABLE MR.JUSTICE C.L. SONI

                              Date : 06/10/2018

                            ORAL ORDER

1. These petitions are filed challenging the common order dated 12.06.2018, passed by the respondent no.2 the Collector, Kachchh Bhuj. By the impugned order, the Collector has ordered to resume the lands of Village:Kadol, Tal:Bhachau, Dist:Kachchh, which are part of unsurveyed lands in Kachchh Wild Life Sanctuary, by cancelling the lease of 38 persons including of the petitioners granted for salt production. It is stated in the impugned order that the area of great Rann of Kachchh was declared as Wild Life Sanctuary by the notification dated 28.02.1986, issued by Government of Gujarat, however, on such prohibited area the Page 1 of 21 C/SCA/9174/2018 ORDER Deputy Collector granted lease for salt production for the period of 1991 to 2011, which was not in consonance with the provisions of The Wild Life Protection Act, 1972 (the Act). It is further stated that the Assistant Collector /Deputy Collector, AnjarKachchh have renewed some lease, but considering the provisions of the Act, the orders for granting lease/ renewal of the lease are required to be cancelled as the Deputy Conservator of Forest, Bhuj has by his communication dated 27.12.2017, asked for immediate cancellation of the orders of granting or renewal of the lease in the areas of Wild Life Sanctuary.

2. Learned senior advocate Mr.Shalin Mehta appearing with learned advocate Mr.Vaibhav Vyas for the petitioners submitted that as mentioned in the original order of 1991, for grant of lease, the lease was granted to the petitioners after the DILR took measurement of different plots allotted to individual petitioners and after proper verification that the plot given on lease was open land whereon, no tree or bead were found nor the plots were either reserved for any public use or transferred to the Forest Department. Mr.Mehta submitted that during the original lease period of 20 years, the petitioners were not found to have committed breach of any of the conditions of the lease and since the Deputy Collector was satisfied for renewal of the lease, the orders were made for renewal of lease of the petitioners. Mr.Mehta submitted that now, before the renewal period is over, the respondent no.2 the Collector has abruptly passed impugned order cancelling the lease of the petitioners without issuing any notice or affording any hearing to the petitioners. Mr.Mehta submitted that till today final notification under section 26A of the Act declaring the areas specified in section18 notification is not issued. Mr.Mehta submitted that the right accrued to the Page 2 of 21 C/SCA/9174/2018 ORDER petitioners to use the lands for production of salt under the lease, could not have been taken away without complying with the principles of natural justice. Mr.Mehta submitted that if the petitioners were issued with the notice and afforded hearing, the petitioners could have pointed out that continuance of the lease would not affect the area of Wild Life Sanctuary as the lease area do not form part of the area specified as Wild Life Sanctuary. Mr.Mehta also referred to the provisions of the Act to submit that when specific provision is made in the Act to comply with the principles of natural justice before ordering eviction of the persons unauthorizedly occupying the forest land and for holding inquiry to decide on the rights claimed by persons on the forest land or on the land declared as Sanctuary, at least minimal principles of natural justice of giving hearing on touch stone of Article 14 of the Constitution was required to be followed before passing the impugned order.

3. Learned AGP Ms.Thakore submitted that after the notification was issued by the Government under Section 18 of the Act, nobody could have been allowed to acquire any right on the lands covered under the notification and therefore, original lease granted by the order of the Deputy Collector in the year,1991, was contrary to statutory provisions contained in the Act and could be said without authority of law and without jurisdiction. She submitted that in respect of lands for which declaration is made under Section 18, no other authorities except the authorities under the Act have jurisdiction to deal with the same and as provided under Section 27 of the Act there is total restriction on the entry of any person in the Sanctuary except the persons mentioned in Section 27 which would not include the petitioners. She submitted that from the year 1999, the Deputy Conservator of Forest has Page 3 of 21 C/SCA/9174/2018 ORDER repeatedly brought to the notice of the Collector that in breach of notification issued by the State Government, lease were granted to the petitioners and requested the Collector to cancel such lease, however, no instant action was taken and now pursuant to the last communication/request made by the Deputy Conservator of Forest, when the Collector has taken action by impugned order, the petitioners have come with grievance that no opportunity of hearing was afforded to them. She submitted that the respondent authorities have filed AffidavitinReply before this Court and placed on record the copy of notification issued under Section 18 in the year, 1986, and the map showing the area of Kachchh Wild Life Sanctuary wherein, the lands occupied by the petitioners are shown to be falling within the Sanctuary. She submitted that when there is clear mandate in the Act not to allow any activity on the areas specified as Sanctuary and when the lands, under the lease, occupied by the petitioners are part of the area specified as Sanctuary, and when this Court has afforded sufficient hearing to the petitioners, the impugned orders may not be interfered with on the ground of breach of principles of natural justice as no fruitful purpose will be served by remanding the matter to the Collector for giving hearing to the petitioners.

4. The Court having heard learned advocates finds that before the petitioners were initially granted lease by the Deputy Collector by different orders in the year, 1991, the State Government had already issued notification under Section 18 of the Act declaring its intention to constitute the area of great Rann of Kuchchh, within which the lands of various Villages including of Village Kadol are situated, as Sanctuary. Section 18 of the Act reads as under:

"18. Declaration of sanctuary The State Government may, by notification, declare its intention to constitute Page 4 of 21 C/SCA/9174/2018 ORDER any area other than an area comprised within any reserve forest or the territorial waters as a sanctuary if it considers that such area is of adequate ecological, faunal, floral, geomorphological, natural or zoological significance, for the purpose of protecting, propagating or developing wild life or its environment."] (2) The notification referred to in subsection (1) shall specify, as nearly as possible, the situation and limits of such area.

Explanation.For the purposes of this section, it shall be sufficient to describe the area by roads, rivers, ridges or other wellknown or readily intelligible boundaries."

5. As could be seen from the copy of notification, the areas specified in the notification to constitute as Sanctuary covers the lands of village Kadol as part of the great Rann of Kachchh. The lands given on lease by separate plots to the petitioners are within the limits of Village Kadol. As provided in Section 20 of the Act, after issuance of notification under Section 18, no right shall be acquired on and over the land comprised within the limits of area specified in such notification, except by succession, testamentary or intestate. Therefore, for the areas of village Kadol which is part of great Rann of Kachchh for which the intention is declared under Section 18, the Deputy Collector had no authority, power or jurisdiction to permit use thereof, by granting lease to the petitioners. The importance of declaration under Section 18 is further stressed by introducing Section 18(A) by amendment in the Act which reads as under:

"18 (A). Protection to sanctuaries (1) When the State Government declares its intention under subsection (1) of section 18 to constitute any area, not comprised within any reserve forest or territorial waters under that subsection, as a sanctuary, the provisions of sections 27 to 33A (both inclusive) shall come into effect forthwith.

Page 5 of 21 C/SCA/9174/2018 ORDER

(2) Till such time as the right of affected persons are finally settled under sections 19 to 24 (both inclusive),the State Government shall make alternative arrangements required for making available fuel, fodder and other forest produce to the persons affected, in terms of their rights as per the Government records.]"

By above provisions, the legislature has made it very clear that there could not be any permission like granting lease or license for use of the lands in the area which is to be constituted as Sanctuary, except the permission to the persons as mentioned in Section 27 and 28 of the Act and strict prohibition is imposed by Section 29 to 33 of the Act to save the Sanctuary from destruction. Therefore, the impugned order made by the Collector appears to be to ensure compliance of the legislative mandate and not to allow activities of salt production on the lands for which the declaration is made to constitute the same as Sanctuary.

6. Following are some judgments wherein law on principles of natural justice is enunciated.

In the case of Aligarh Muslim University and others Vs. Mansoor Ali Khan, reported in (2000) 7 SCC 529, the Hon'ble Supreme Court has held and observed in paras24, 25 and 34 as under:

"24. The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K. L. Tripathi v. State Bank of India, Sabyasachi Mukharji, J. (as he then was) also laid down principle that not mere violation of natural justice but de facto prejudice (other than non issue of notice) had to be proved. It was observed, quoting Wade Administrative Law (5th Edn. pp. 472

475), as follows: (SCC p. 58, para 31):

"[I]t is not possible to lay down rigid rules as to when principles of natural justice are to apply, nor as their scope and extent ........ There must have been some Page 6 of 21 C/SCA/9174/2018 ORDER real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subjectmatter to be dealt with and so forth."

Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala v. S. K. Sharma. In that case, the principle of 'prejudice' has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of M.P.

25. The 'useless formality' theory, it must be noted, is an exception. Apart from the class of cases of "admitted or indisputable facts leading only to one conclusion" referred to above, there has been considerable debate of the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M. C. Mehta, referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Singham, Megarry, J. and Straughton, L.J. etc. in various cases and also views expressed by leading writers like Profs, Garner, Craig, De Smith, Wade, D. H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the Court will be prejudging the issue. Some others have said, that there is no such absolute rule and prejudice must be shown. Yet, some others have applied viamedia rules. We do not think it necessary, in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case.

34. We may add a word of caution. Care must be taken, wherever the Court is justifying a denial of natural justice, that its decision is not described as a Page 7 of 21 C/SCA/9174/2018 ORDER preconceived view' or one in substitution of the view of the authority who would have considered the explanation. That is why we have taken pains to examine in depth whether the case fits into the exception."

In the case of Indu Bhushan Dwivedi Vs. State of Jharkhand and Another, reported in (2010) 11 SCC 278, the Hon'ble Supreme Court has held and observed in paras22 and 24 as under:

"22. As a general rule, an authority entrusted with the task of deciding lis between the parties or empowered to make an order which prejudicially affects the rights of any individual or visits him with civil consequences is duty bound to act in consonance with the basic rules of natural justice including the one that material sought to be used against the concerned person must be disclosed to him and he should be given an opportunity to explain his position. This unwritten right of hearing is fundamental to a just decision, which forms an integral part of the concept of rule of law. This right has its roots in the notion of fair procedure. It draws the attention of the authority concerned to the imperative necessity of not overlooking the cause which may be shown by the other side before coming to its decision.

24. However, every violation of the rules of natural justice may not be sufficient for invalidating the action taken by the competent authority/employer and the Court may refuse to interfere if it is convinced that such violation has not caused prejudice to the affected person/employee."

In the case of Dharampal Satyapal Limited Vs. Deputy Commissioner of Central Excise, Gauhati and others, reported in (2015) 8 SCC 519, relied on Mr. Mehta, the Hon'ble Supreme Court has held and observed in paras35,37,38,39, Page 8 of 21 C/SCA/9174/2018 ORDER 40,42,43,44,45,46,47 as under:

"35. From the aforesaid discussion, it becomes clear that the opportunity to provide hearing before making any decision was considered to be a basic requirement in the Court proceeding. Later on, this principle was applied to other quasijudicial authorities and other tribunals and ultimately it is now clearly laid down that even in the administrative actions, where the decision of the authority may result in civil consequences, a hearing before taking a decision is necessary. It was, thus, observed in A. K. Kraipak's case (AIR 1970 SC 150) (supra) that if the purpose of rules of natural justice is to prevent miscarriage of justice, one fails to see how these rules should not be made available to administrative inquiries. In the case of Maneka Gandhi v. Union of India and Anr.13also the application of principle of natural justice was extended to the administrative action of the State and its authorities. It is, thus, clear that before taking an action, service of notice and giving of hearing to the noticee is required. In Maharashtra State Financial Corporation v. M/s. Suvarna Board Mills and Anr.14, this aspect was explained in the following manner:

"3. It has been contended before us by the learned counsel for the appellant that principles of natural justice were satisfied before taking action under Section 29, assuming that it was necessary to do so. Let it be seen whether it was so. It is well settled that natural justice cannot be placed in a straightjacket; its rules are not embodied and they do vary from case to case and from one factsituation to another. All that has to be seen is that no adverse civil consequences are allowed to ensue before one is put on notice that the consequence would follow if he would not take care of the lapse, because of which the action as made known is contemplated. No particular form of notice is the demand of law: All will depend on facts and circumstances of the case.

37. Therefore, we are inclined to hold that there was a requirement of issuance of showcause notice by the Deputy Commissioner before passing the order of recovery, irrespective of the fact whether Section 11A of the Act is attracted in the instant case or not.

Page 9 of 21 C/SCA/9174/2018 ORDER

38. But that is not the end of the matter. While the law on the principle of audi alteram partem has progressed in the manner mentioned above, at the same time, the Courts have also repeatedly remarked that the principles of natural justice are very flexible principles. They cannot be applied in any straight jacket formula . It all depends upon the kind of functions performed and to the extent to which a person is likely to be affected. For this reason, certain exceptions to the aforesaid principles have been invoked under certain circumstances. For example, the Courts have held that it would be sufficient to allow a person to make a representation and oral hearing may not be necessary in all cases, though in some matters, depending upon the nature of the case, not only full fledged oral hearing but even crossexamination of witnesses is treated as necessary concomitant of the principles of natural justice. Likewise, in service matters relating to major punishment by way of disciplinary action, the requirement is very strict and fullfledged opportunity is envisaged under the statutory rules as well. On the other hand, in those cases where there is an admission of charge, even when no such formal inquiry is held, the punishment based on such admission is upheld. It is for this reason, in certain circumstances, even postdecisional hearing is held to be permissible. Further, the Courts have held that under certain circumstances principles of natural justice may even be excluded by reason of diverse factors like time, place, the apprehended danger and so on.

39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straightjacket formula , the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason perhaps because the evidence against the individual is thought to be utterly compelling it is Page 10 of 21 C/SCA/9174/2018 ORDER felt that a fair hearing 'would make no difference' meaning that a hearing would not change the ultimate conclusion reached by the decisionmaker then no legal duty to supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch v. Aberdeen Corporation20, who said that a 'breach of procedure...cannot give (rise to) a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain'. Relying on these comments, Brandon LJ. opined in Cinnamond v. British Airports Authority21that 'no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing'. In such situations, fair procedures appear to serve no purpose since 'right' result can be secured without according such treatment to the individual.

40. In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the Courts. Even if it is found by the Court that there is a violation of principles of natural justice, the Courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that order passed is always null and void. The validity of the order has to be decided on the touchstone of 'prejudice'. The ultimate test is always the same, viz., the test of prejudice or the test of fair hearing.

42. So far so good. However, an important question posed by Mr. Sorabjee is as to whether it is open to the authority, which has to take a decision, to dispense with the requirement of the principles of natural justice on the ground that affording such an opportunity will not make any difference? To put it otherwise, can the administrative authority dispense with the requirement of issuing notice by itself deciding that no prejudice will be caused to the person against whom the action is Page 11 of 21 C/SCA/9174/2018 ORDER contemplated? Answer has to be in the negative. It is not permissible for the authority to jump over the compliance of the principles of natural justice on the ground that even if hearing had been provided it would have served no useful purpose. The opportunity of hearing will serve the purpose or not has to be considered at a later stage and such things cannot be presumed by the authority. This was so held by the English Court way back in the year 1943 in the case of General Medical Council v. Spackman22. This Court also spoke in the same language in the case of The Board of High School and Intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.23, as is apparent from the following words:

"7. The learned counsel for the appellant, Mr. C. B. Aggarwal, contends that the facts are not in dispute and it is further clear that no useful purpose would have been served if the Board had served a show cause notice on the petitioner. He says that in view of these circumstances it was not necessary for the Board to have issued a show cause notice. We are unable to accept this contention. Whether a duty arises in a particular case to issue a showcause notice before inflicting a penalty does not depend on the authority's satisfaction that the person to be penalised has no defence but on the nature of the order proposed to be passed.

43. In view of the aforesaid enunciation of law, Mr. Sorabjee may also be right in his submission that it was not open for the authority to dispense with the requirement of principles of natural justice on the presumption that no prejudice is going to be caused to the appellant since judgment in R.C. Tobacco (AIR 2005 SC 4203) (supra) had closed all the windows for the appellant.

44. At the same time, it cannot be denied that as far as Courts are concerned, they are empowered to consider as to whether any purpose would be served in remanding the case keeping in mind whether any prejudice is caused to the person against whom the action is taken. This was so clarified in the case of Page 12 of 21 C/SCA/9174/2018 ORDER Managing Director, ECIL (AIR 1994 SC 1074) (supra) itself in the following words:

"31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and given the employee an opportunity to show how his or her case was prejudiced because of the nonsupply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the nonsupply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as it regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment.

45. Keeping in view the aforesaid principles in mind, even when we find that there is an infraction of principles of natural justice, we have to address a further question as to whether any purpose would be served in remitting the case to the authority to make fresh demand of amount recoverable, only after issuing notice to showcause to the appellant. In the facts of the present case, we find that such an exercise would be totally futile having regard to the law laid down by this Court in R.C. Tobacco.

46. To recapitulate the events, the appellant was accorded certain benefits under Notification dated July, 08, 1999. This Notification stands nullified by Section Page 13 of 21 C/SCA/9174/2018 ORDER 154 of the Act of 2003, which has been given retrospective effect. The legal consequence of the aforesaid statutory provision is that the amount with which the appellant was benefitted under the aforesaid Notification becomes refundable. Even after the notice is issued, the appellant cannot take any plea to retain the said amount on any ground whatsoever as it is bound by the dicta in R.C. Tobacco (supra). Likewise, even the officer who passed the order has no choice but to follow the dicta in R.C. Tobacco (supra). It is important to note that as far as quantification of the amount is concerned, it is not disputed at all. In such a situation, issuance of notice would be an empty formality and we are of the firm opinion that the case stands covered by 'useless formality theory'.

47. In Escorts Farms Ltd. (Previously known as M/s. Escorts Farms (Ramgarh) Ltd.) v. Commissioner, Kumaon Division, Nainital, U.P. and Ors.24, this Court, while reiterating the position that rules of natural justice are to be followed for doing substantial justice, held that, at the same time, it would be of no use if it amounts to completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. It was so explained in the following terms:

"64. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of Government Grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, moreso, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we, therefore, refrain from remanding these cases in exercise of our Page 14 of 21 C/SCA/9174/2018 ORDER discretionary powers under Article 136 of the Constitution of India."

In the case of State of Haryana and others Vs. Northern Indian Glass Industries Limited, reported in (2015) 15 SCC 588, the Hon'ble Supreme Court has held and observed in para23 as under:

"23. The prayer in the writ petition was for the issuance of a writ of certiorari quashing the resumption notice dated 6.1.2005 issued by the appellant State. In the impugned Judgment the Division Bench has opined that the principles of natural justice applied irrespective of the nature of the cause or the gravity thereof and are not mere platitudes. In our analysis of the exposition of law contained hereinabove, we think that this unjustly sets far too broad and wide a parameter to the perceptions of natural justice. Quite to the contrary, Courts should be "pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than precedential". We cannot lose perspective of the fact that protracted litigation had already taken place between the parties as a consequence of which the legal position of all affected parties had already become wellknown. It seems to us that in the writ petition, the challenge was predicated on the perceived failure to adhere to the audi alterem partem rule and not to the correctness of the decision to resume possession of the land. In any event, we harbour no manner of doubt that the circumstances of the case warrant the issuance of the resumption notice of the land by the appellant State. We also note that the 'resumption notice' has been issued to the respondent alone which, because of its actions, has forfeited whatsoever rights it may have enjoyed over the land in question. In fact the respondent may be liable to make over to the appellant State all the profit that it has illegally and unjustifiably reaped in its misutilization of the lands acquired for it for the purpose of setting up an industrial unit for manufacture of sheet glass with the accompanying projection of providing employment to almost a thousand workmen. How this resumption notice will be Page 15 of 21 C/SCA/9174/2018 ORDER implemented against third parties is a matter on which we would think it prudent not to make any observations. The appellant State may not treat the observations made by us above pertaining to third parties who have purchased land from the Respondent as conclusively circumscribing any relief to them and/or rendering it unnecessary to give any hearing to them. The appellant State will avowedly have to proceed in accordance with law, especially since it has not maintained a watchful eye on the manner in which the land was dealt with by the respondent."

7. The enunciation of law on the principles of natural justice by Hon'ble Supreme Court in above judgments, would leave it open to the Court to consider the nature of cause and the grievance brought before the Court, whether any prejudice is caused on account of noncompliance of principles of natural justice and also the nature of right claimed.

8. In the case on hand, since the impact of notification under Section 18 of the Act was prevailing prior to grant of lease by the Deputy Collector in 1991 to the petitioners and no right would accrue to anybody in respect of lands covered under the notification, the very grant of lease and renewal thereof, would stand nullified against the statutory provisions contained under Sections 18, 20, 27 and 28 of the Act. It is required to note that between 1991 till 2017, on different occasions, the Deputy Conservator of Forest, BhujKachchh has been specifically writing to the Collector respondent no.2, to cancel the lease granted for the lands covered under Section 18 notification however, the same was not taken seriously at the relevant time. In the Affidavitin Reply filed by the Assistant Conservator of Forest, and in the Maps annexed with the reply, the plots allotted on lease to the petitioners are shown to be falling within Kachchh dessert Wild Life Page 16 of 21 C/SCA/9174/2018 ORDER Sanctuary. These authorities are functioning under the Act and there is no reason to doubt their say on oath in AffidavitinReply with supporting Maps that the lands in occupation of the petitioners fall within the areas comprised in Sanctuary.

9. Learned Senior advocate Mr. Mehta however, submitted that if the notice was issued to the petitioners and hearing was granted to the petitioners, they would have successfully pointed out the actual site situation of the lands leased to them and that the lands occupied by them do not fall within the area of Sanctuary. Mr.Mehta also submitted that even going with the notification issued under Section 18, only some portion of village Kadol is included in the notification under Section 18 and as per the information of the petitioners, the lands occupied by the petitioners under lease are not covered within the lands of village Kadol specified as Sanctuary. He submitted that the petitioners though have asked for information with various documents under Right to Information Act, the petitioners still have not received such information but to comply with the principles of natural justice, the Court may give an opportunity to the petitioners to present their case before the Collector by remanding the matter to the Collector. He submitted that in other cases, the Collector has already issued notice and therefore, it is not open to the Collector to adopt different standards and to give different treatment to the petitioners who are similarly situated to those other persons. Copy of one such show cause notice dated 23.07.2018, is placed for perusal of the Court.

10. The Court however, finds that as on today, the petitioners have shown no material or any other evidence to controvert the say of authorities especially the Assistant Conservator of Forest in Page 17 of 21 C/SCA/9174/2018 ORDER AffidavitinReply and the Map prepared with the signature of Deputy Conservator of Forest showing the lands occupied by the petitioners falling within the areas specified to constitute the Sanctuary.

11. The Court therefore, finds that simply because the Collector had earlier issued show cause notice in some other case though in connection with the lands of village Kadol, such would not be a ground to interfere with the impugned order when the Court has given sufficient hearing to the petitioners and when it appears to the Court that giving of hearing before the Collector would be illusionary and futile. Therefore, the contention that in other similar case, since the Collector has earlier issued notice, the petitioners should also be given similar opportunity by the Collector cannot be accepted. The Court would interfere with the order passed without giving hearing to the affected party, when the Court finds that the deep scrutiny of dispute concerning right claimed by such party is required. But such is not the requirement in present case. The right claimed by the petitioners is to continue with the lease for the lands which are covered in the area specified to constitute the Sanctuary. Such right cannot stand against the notification issued under Section 18, against the provisions of Section 20 and further against the provisions Section 27 and 28 of the Act and therefore, non issuance of notice or non grant of hearing before terminating such right to hold the land on lease will not cause any prejudice to the petitioners.

12. Learned advocate Mr.D.K.Puj appearing for some of the petitioners however, submitted that Section 19 of the Act requires the Collector to determine the rights in and over the land comprised within the limits of the Sanctuary when the notification Page 18 of 21 C/SCA/9174/2018 ORDER has been issued under Section 18 of the Act and considering the importance of determination of such rights, when the legislature has inserted Section 18(B) by amendment in the Act for appointment of the Collector as the authority to inquire and determine the existence, nature and extent of rights in and over the lands comprised within the limits of Sanctuary, it could be said that the legislature has in its wisdom provided for giving enough opportunities to the persons who are claiming some rights in the lands to present their case and therefore, giving of hearing to the petitioners will not be simple formalities but will be in consonance with the spirit of the provisions made in Section 18(B) of the Act.

13. The Court finds that the rights envisaged in above provisions of the Act do not appear to be alike the right claimed by the petitioners under the lease for salt production. The determination of the rights contemplated under above provisions appear to be about the rights subsisted prior to issuance of notification under Section 18 for which the Collector is given powers under Section 24 and 25 to make appropriate orders either to exclude the lands from the limits of proposed Sanctuary or to make other orders as if the Collector is acting under the Land Acquisition Act. The Court finds that in any case, the petitioners cannot make any grievance in the context of provisions of Section 19 read with Section 18(B) of the Act as the petitioners have never claimed any right under the Act.

14. As could be seen from the details given in the impugned order, the renewal period for the petitioners nos.10 to 17 of Special Civil Application no.9355 of 2018, has otherwise come to an end on 31.07.2018. Therefore, those petitioners of the said petition would, in any case, not be justified in continuing with their grievance about noncompliance of principles of natural justice before Page 19 of 21 C/SCA/9174/2018 ORDER making the impugned order by the Collector against them.

15. Learned senior advocate Mr. Mehta however, relied on the judgment in the case of Kamla Kant Pandey, Vs. Prabhagya Van Adhikari Obra and Ors. reported in AIR (2005) Allahabad 136 to urge that the petitioners could be granted relief in terms of Section 29 of the Act which provides for grant of permission by the concerned authorities under the Act which can consider whether allowing the petitioners to continue with the lease of the land covered in the Sanctuary would result into destroying, exploiting or removal of any wild life.

16. In the above case, Allahabad High Court examined the action of the State Government of cancelling the mining lease which was operating from the area of Wild Life Sanctuary. In its final direction, the Allahabad High Court directed the petitioners of the said case not to carry out the mining operation and preservation thereof, until the matter was decided by the respondent whether to allow the petitioners to continue with the mining activities. Such nature of direction could not be issued in the present case as the nature of lease given to the petitioners would not call for in exercise of powers under Section 29 of the Act. However, the following observation in para 34 of the Judgment in the case of Kamla Kant Pandey (Supra) would show that the Act has overriding effect in so far as it relates to the activities prohibited under it, and it is only the authority functioning under the Act, and no other authority, has any power to give any permission, be it grant of lease or other permission, in connection with the lands specified to be constituted as Sanctuary.

34. The contention of the learned Standing Counsel to Page 20 of 21 C/SCA/9174/2018 ORDER the effect that the State Government itself is prohibited from issuing any such permit of mining leases has also to be countenanced. It is to be noted that once an area is declared to be within a sanctuary, no such activity, as in the present case, can be permitted except without a permit from the wildlife authorities and the State Government under the Wild Life (Protection) Act. The Wild Life (Protection) Act being a special Act is clearly intended to have overriding effect in so far as it relates to the activities prohibited under the said Act. This necessarily means that a mining lease or permit granted under the Minor Mineral (Concession) Rules is subject to permission being granted under the Wild Life (Protection) Act, 1972 provided the area within which the mining operations are to be carried out are within the territorial limits of the sanctuary. The State Government to this extent, has limited powers to grant mining leases and permits under the Minor Mineral (Concession) Rules, 1963 and related laws, subject to the limitations as indicated under the Wild Life Protection Act."

17. In above view of the matter, the Court finds that no interference is called for by this Court in the impugned orders in exercise of powers under Article 226 of the Constitution. The petition is therefore, rejected. Interim relief stands vacated. However, the petitioners are given three weeks time to vacate lands given under the lease, failing which the Collector and the authorized officers shall immediately resume the possession of the lands from the petitioners. Notice stands discharged.

(C.L. SONI, J) Manshi Page 21 of 21

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Gujarat High Court