Rekhaben Sureshbhai Salar vs Additional Chief Secretary & 2

Heard learned advocate Dr.Shivgar P. Gosai for the petitioner and learned Assistant Government Pleader Ms.Divyangna Jhala appearing on an advance copy of the petition served on him.

2. Application of the petitioner for grant of quarry lease for the purpose of excavating mineral ordinary sand in the riverbed of Narmada in area opposite to Survey Nos.77, 78, 96 at Village Kakarpar, Taluka Zaghadiya, Bharuch, made on 10th October, 2008 came to be rejected by the Collector as per his order dated 31st March, 2011.

2.1 The rejection was on the ground that the area demanded for the quarry lease was included by the State Government in the block area and that petitioner Page 1 of 6 HC-NIC Page 1 of 6 Created On Fri Jun 10 23:23:04 IST 2016 C/SCA/6396/2016 ORDER has in his application categorically stated that he would excavate less than 4,000 MT of minor mineral in the first year, which is in contravention to Rule 62 of the Gujarat Minor Mineral Concession Rules, 2010.

3. The revisional authority before whom the petitioner carried the order of the Collector in the revision under Rule 65(1) of the Gujarat Minor Minerals Concession Rules, 2010, dismissed the revision application by his order dated 23rd December, 2015, impugned in this petition.

3.1 It was on more than one reason that the revisional authority found that the application of the petitioner for grant of quarry lease was not acceptable, and therefore confirmed the order of the Collector. The reason given by the Collector which came to be affirmed by the revisional authority that the area demanded by the petitioner was included in the block. The second reason weighed with the authority was that in view of provision of Rule 69 of the Gujarat Minor Minerals Concession Rules, 2010 and the Resolution dated 13th December, 2013 of the Industries and Mines Department, it was decided to dispose of the applications for quarry lease by resorting to process of auction.

4. Learned advocate for the petitioner wanted to harp that the impugned order was in breach of natural justice as the petitioner did not have opportunity to be heard and to be considered for his case. The contention was not possible to be Page 2 of 6 HC-NIC Page 2 of 6 Created On Fri Jun 10 23:23:04 IST 2016 C/SCA/6396/2016 ORDER countenanced in asmuch as it is clearly reflected from the impugned order that the submissions were made by the applicant-petitioner before the revisional authority. It is conceded by learned advocate for the petitioner in course of hearing of this petition that the applicant-petitioner was present before the revisional authority.

5. Once the opportunity was given and availed by the petitioner for putting-forth his case before the revisional authority and his submissions came to be considered by the revisional authority, it can hardly be contended that natural justice was breached. When an area of the lease is sought to be included in the block, inclusion of area of land as part of block would mean that they are the areas identified for the purpose of allotment of that area by way of putting quarry lease to auction. The ground furnished by the Collector and confirmed by the revisional authority is not liable to be interfered with, it being just, proper and reasonable.

5.1 As far as the other ground which weighed with the revisional authority that under the Resolution dated 13th December, 2013, the policy is adopted to allot the quarry lease by means of auction was entirely a good ground which guided and which weighed with the revisional authority in rejecting application of the petitioner. The submission of learned advocate was that his application was prior to 31st March, 2010, therefore such policy for auction was not applicable. This submission has to be evaluated in Page 3 of 6 HC-NIC Page 3 of 6 Created On Fri Jun 10 23:23:04 IST 2016 C/SCA/6396/2016 ORDER view of what is held in judgment dated 29th April, 2016 in Special Civil Application No.20552 of 2015 and allied matters. In the said judgment in group of petitions, the aspect of Resolution dated 13th December, 2013 with Rule 69 of the Rules as further informed by the law laid down by the Apex Court in case of Sulekhan Singh Vs State of Uttar Pradesh [AIR 2016 SC 228] has been considered by this Court.

5.2 The proposition recorded by the revisional authority that the quarry leases are to be disposed of as per the said Resolution and Rule by way of auction can in no way to be excepted as the same is only in accordance with the principle of fairness and equality, highlighted by the Apex Court in case of Sulekhan Singh (supra), particularly in paragraph 20 of the judgment. It also seeks support from the trite principle that government property, in all ordinary cases and circumstances, is liable to be disposed of by putting it into a public domain and by resorting to the process of auction.

5.3 Learned advocate Dr.Gosai submitted further that the Resolution dated 13th December, 2013 provides for auction only in respect of applications which are post-31st March, 2010. He submitted that his application being prior in point of time, may not be covered by the Resolution. He, in this regard, relied on decision of the Apex Court in Prakash Vs Phulvati [(2016) 2 SCC 36] in which in respect of Section 6 of Hindu Succession Act, 1956 as substituted by Hindu Succession (Amendment) Act, 2005, held that a statute Page 4 of 6 HC-NIC Page 4 of 6 Created On Fri Jun 10 23:23:04 IST 2016 C/SCA/6396/2016 ORDER cannot be operated retrospectively and that the amendment in law is a substantive provision. It was, therefore, submitted that the operation can only be prospective. The decision of Prakash (supra) was in the context of statute which reiterated the principle that a statutory amendment, unless otherwise expressly provided, will not have a prospective operation. This does apply in the facts of case on hand.

5.4 In Punjab University, Chandigarh Vs Subhash Chandra [AIR 1984 SC 1415] the Supreme Court was concerned with the Regulation dealing with the eligibility of candidates which have taken admission to the MBBS Course and was aspiring to admission in post-graduation. During the tenure of the studentship as medical graduate student, Rules for admission for post-graduate underwent change. The Supreme Court held that candidates had no vested right to be governed by the old Rules and to the Rules which were prevalent at the time when the question of their applicability arose, such prevalent Rules apply. Secondly, for the purpose of post-graduate admission, the amended Rules as prevalent at the time of seeking such admission were held to be applied and it was held that such application cannot be termed as retrospective application.

5.5 Regarding submission of learned advocate that the provision of disposing the quarry lease by way of auction would not apply to his case, it has to be emphasised and stated that an outweighing consideration and the decisive principle would be one Page 5 of 6 HC-NIC Page 5 of 6 Created On Fri Jun 10 23:23:04 IST 2016 C/SCA/6396/2016 ORDER which is underlined by the Apex Court in Sulekhan Singh (supra) in paragraph 20 of the judgment, namely that it is the process of auction which is the proper manner to meet the test of transparency and fairness in grant of quarry lease. Any other policy, if diversive, may have to be examined with greater scrutiny for its reasonableness in terms of Article 14 of the Constitution.

6. For the aforesaid reasons, the impugned orders are eminently just, proper and correct. No interference is required to be called for by this Court.

7. Petition stands dismissed.

(N.V.ANJARIA, J.) Anup Page 6 of 6 HC-NIC Page 6 of 6 Created On Fri Jun 10 23:23:04 IST 2016