SCA/12134/2000 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12134 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA ===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ===================================================== PRANLAL KANJIBHAI THAKRAL - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ===================================================== Appearance : Ms.Sangeeta Pahwa for M/S THAKKAR ASSOC. for Petitioner Mr.Ketan J.Dwivedi,learned Assistant Government Pleader for Respondent Nos.1 to 3 ===================================================== CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA SCA/12134/2000 2/11 JUDGMENT Date : 02/12/2008 ORAL JUDGMENT 1. This petition challenges the order dated 23-07- 1999 made by the District Collector,Jamnagar rejecting the application of the petitioner for grant of quarry lease for limestone and the order made by Additional Director, Geology Science and Mineral Department,Gujarat State, Gandhinagar dismissing the appeal on 29-06-2000 as being violative of Articles 14,19 and 21 of the Constitution of India. 2. The principal case of the petitioner is that on 23-06-1966 the petitioner applied for quarry lease from the land bearing Survey No.185 (New Survey No.197) in compliance with the requisite rules of Gujarat Minor and Mineral Rules,1965. That the petitioner made the application qua the said parcel of land in 1966 but due to litigations between the State Government and the successors of Barkhalidars and Girasdars till 1994 when the Supreme Court decided the matter finally,the application of the petitioner was kept pending. Vide order dated 23-07- SCA/12134/2000 3/11 JUDGMENT 1999 respondent No.2 informed the petitioner that the land for quarry lease,as prayed for, cannot be granted as superior quality limestones exist in the said land. 3. The petitioner carried the matter in appeal before State Government and the appeal was registered as Appeal No.408 of 1999. The petitioner stated that the order was made by the Collector without granting an opportunity of hearing, portion of the same land was given on lease to persons who had applied subsequently for the quarry lease of limestone in the year 1996 and hence there was no justification for refusing the claim made by the petitioner. The Appellate Authority having dismissed the appeal vide order dated 29-06-2000,the petitioner has approached this Court. 4. The learned advocate for the petitioner has assailed the impugned orders made by the District Collector and the Appellate Authority mainly on the ground that seven persons, who had made applications subsequent to the application of the petitioner, have SCA/12134/2000 4/11 JUDGMENT been granted quarry lease from the same land bearing Survey No.197. The petitioner has given specific details about the parties and Annexed the orders dated 31-8-1996 at Annexure “B” collectively. That thus the petitioner has been discriminated against. That the averments in this regard made in paragraph No.4 of the petition read as under: “4. The petitioner submits that the application of the petitioner for grant of quarry lease was rejected by the Collector for the reason that major minerals of lime stone exit in the land in question. However, the said ground is baseless and unsustainable in view of the fact that from the same land the quarry lease is granted to other persons who had applied subsequent to the petitioner much later in the year 1995-96. The petitioner submits that following persons who had applied subsequent to the petitioner in the year 1995-96 have been granted quarry lease from the same land bearing Survey No.197. (1)Aditya Jadeja (2)Bhartidevi (3)Shivrajwala (4)Janubha Gumansang Zala (5)Sanubha Gumansang Zala (6)Jaypalsing Sanubha Zala (7)Rohitkumar Sanubha Zala Annexed hereto and marked as ANNEXURE 'B' collectively are the copies of the orders dated SCA/12134/2000 5/11 JUDGMENT 31.8.96 passed by the Mamlatdar, Jam-Jodhpur granting quarry lease for the same land bearing Survey No.197.” 5. The learned Assistant Government Pleader prayed for time to tender additional affidavit. The said request has been rejected considering the fact that the affidavit in reply was already filed some time in May 2006 and no new facts have come on record subsequently. 6. The learned Assistant Government Pleader has placed reliance on averments made in paragraph Nos.5 to 8 of the affidavit-in-reply dated 3-5-2006,which read as under: “5. At the out set I say and submit that the petitioner has an alternative efficacious remedy by way of filing revision application before the Deputy Secretary,Industries and Mines,Gujarat State, but he has not availed the same and straight way approached this Hon'ble Court by way of this Special Civil Application. On this ground alone this petition is required to be dismissed. 6. At the out set I say and submit that Lime stone mineral used in industries is known as major minerals which is mostly used in Cement SCA/12134/2000 6/11 JUDGMENT Plant,Soda- Ash Plant and other chemical industries. The royalty rate at present is Rs.45/- per Ton. I further say and submit that the Lime Stones used in industries having more than 85% of calcium carbonate known as high grade Lime Stone. At present in this area two mining leases are granted under Major Minerals namely (1) Bharatiben S.Vala and (2) Chanabha J.Zala and another application of mining is under process. 7. I further say and submit there is no quarry lease is existing in this area at present. Lime Stone which is used as a building stone known as minor minerals and the rate of the royalty for minor minerals lime stone is Rs.18/- per Ton at present. 8. I further say and submit that the mining lease of lime stone under major mineral is granted under the Act namely Metal and Mineral Regulation and Development Act 1957 and Mineral Concession Rules 1960. So far as lime stone used as Minor Mineral i.e. building stone is granted under Gujarat Minor Mineral Rules 1966.” 7. When attention of the learned Assistant Government Pleader was invited to the fact that the aforesaid averments did not controvert the categorical averments made by the petitioner in SCA/12134/2000 7/11 JUDGMENT paragraph No.4 of the petition,the learned Assistant Government Pleader sought to rely on the remarks forwarded by the respondent-authority to the Office of the Government Pleader. Hence the Court has gone through the said remarks to ascertain whether any portion of the remarks has not been incorporated in the affidavit-in-reply. A bare perusal of the said remarks makes it more than abundantly clear that, to the contrary, paragraph No.1 of the said remarks in term accepts the case of the petitioner. The para- wise remarks are endorsed by the Collector, Jamnagar. In paragraph No.1, respondent No.2-authority has stated thus: “1. The Quarry lease application of the petitioner has been rejected and the applications of other applicants were granted – are true but the statement that of breaches of articles nos.14,19 and 21 is not true.”(emphasis supplied) 8. Hence it becomes clear that the respondent- authorities were not disputing the fact that the applications of other applicants were granted. Thereafter, in paragraph No.4 it is stated: SCA/12134/2000 8/11 JUDGMENT “It is to certify in consequence to the petitioner's application that the applicants listed in the list had applied for limestone and they were granted the leases, but, listed applicants' applied areas were bearing plenty of minor mineral limestone and hence they were granted leases as per rules. Further, in the land of same survey number the High Grade Limestone is available, wherein other applicants for mining leases are granted mining leases and some applications are pending for the decision at government level. For this matter, there is no question of individual injustice arise. Whichever the procedure has been adopted by the department is as per the prevailing rules and regulations.” 9. The aforesaid extract indicates that the authority is conscious of the fact that quarry lease for minor minerals has been granted for different areas of the same Survey Number. In the circumstances, the averments made in the affidavit- in-reply to the effect that only two persons, out of the seven named persons, were granted lease and that too only mining lease for major minerals is factually an incorrect averment. Even if for the sake SCA/12134/2000 9/11 JUDGMENT of argument, one proceeds on the footing that the lease granted to said two persons was for major minerals, insofar as the remaining five persons are concerned, it is not in dispute that their cases are identical to the case of the petitioner and they have been granted quarry lease for extracting minor minerals. 10. If this be the position, the respondent- authorities cannot plead that there is no violation of the provisions of Article 14 of the Constitution. In fact, when one reads the order made by the District Collector, reason No.3 in fact accepts that the area for which the petitioner had made an application was the same area for which the other applicants had applied, namely, for extracting minor minerals. Therefore the authorities have definitely committed breach of Article 14 of the Constitution by granting applications of other similarly situated applicants, all other things remaining equal. In the circumstances, the petitioner having made an application prior in point of time was entitled to have a decision in his favour before the applications SCA/12134/2000 10/11 JUDGMENT of other applicants,which were made subsequent to the application of the petitioner, were dealt with. Even on this count, the Appellate Authority has erroneously observed in paragraph No.5 of the appellate order that there was no question of priority being given to the application made by the petitioner. 11. Hence, considering the matter from any angle, the impugned order dated 23-07-1999 made by District Collector, Jamnagar (Annexure “A”) and the order dated 29-06-2000 made by the Appellate Authority (Annexure “C”) are hereby quashed and set aside. The respondent-authorities are hereby directed to process the application made by the petitioner and take a decision in this regard at the earliest, but not later than a period of four weeks from the date of receipt of a simple copy of this judgment, without waiting for a certified copy. Petition is allowed accordingly in the aforesaid terms. Rule is made absolute. There shall be no order as to costs. (D.A.Mehta,J) SCA/12134/2000 11/11 JUDGMENT arg