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Bhalabhai Devabhai Vs. State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1980)2GLR620
AppellantBhalabhai Devabhai
RespondentState of Gujarat and anr.
Excerpt:
- - one of the three alternative conditions, therefore, was satisfied in the instant case. in case of a part of the land which was held by piraji bhikaji bhjara even the third alienative condition was satisfied because the renewed lease in respect of land held by him was revoked on 1st october 1975. it is clear, therefore, that the land in question is governed by rule 18(1)(c). therefore, in order to make it available for re-grant under rule 18(1)(c), it was necessary for the state government to issue a notification in the official gazette 'at least thirty days in advance. it may depend upon other natural factors as well......in order to make it available for re-grant under rule 18(1)(c), it was necessary for the state government to issue a notification in the official gazette 'at least thirty days in advance.' the first argument which mr. sompura has raised is that this rule is ultra vires section 15 of the mines and minerals (regulation and development) act, 1957, under which it has been made. sub-section (1) of section 15 provides as follows:the state government may, by notification in the official gazette, make rules for regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith.sub-section (2) and sub-section (3) of section 15 have no application to the present case. sub-sec (1) confers upon the state.....
Judgment:

S.H. Sheth, J.

1. The petitioner applied on 14th December 1978 for a lease of land adjoining survey No. 211 and survey No. 212 of village Bhat in Gandhinagar District. He wanted that lease to be granted under Gujarat Minor Mineral Rules, 1966 in order to enable him to remove sand from Sabarmati river bank. On 27th January 1979 his application was rejected. Two reasons were given in that order. Firstly, the Government had decided to plot out the land and auction it out for granting quarry leases secondly notification under Rule 18(1)(c) of Gujarat Minor Mineral Rules, 1966 was not published.

2. The question of issuing notification under Rule 18(1)(c) of Gujarat Minor Mineral Rules, 1966, arose under the following circumstances. One R.M. Patel was granted on 14th March 1973 a lease for one year in respect of a part of the land in question. On the expiry of the period of that lease, it was renewed for one more year. The renewed lease expired on 2nd March 1974. Thereafter it was not renewed. The land which was leased out to R.M. Patel was not leased out to any one else thereafter.

3. One Piraji Bhikaji Bajara obtained on 20th December 1972 a lease in respect of another part of this land for a period of one year. On the expiry of the period of that lease, it was renewed for one more year. It was again renewed for one more year. The period of lease which was renewed on two occasions would have ordinarily expired on 19th December 1975. However, by order dated 1st October 1975 the lease was revoked because the lessee had committed breach of condition No. 3 in Parts V and VI of the lease. Since the land in question was in two parcels leased out earlier, notification under Rule 18(1)(c) was required to be issued before it could be re-granted to any one.

4. Under these circumstances, the first contention which Mr. Sompura has raised is that Rule 18(1)(c) of the Gujarat Minor Mineral Rules, 1966, is ultra vires Section 15 of the Mines and Minerals (Regulation and Development) Act, 1957 and Article 14 of the Constitution. In order to examine the challenge which Mr. Sompura has raised, it is necessary to turn to Rule 18(1)(c). It reads as follows:

No area which was previously held or which is being held under a quarry lease or in respect of which an order has been made for the grant thereof but the applicant has died before the execution of a lease deed or in respect of which the order granting lease has been revoked under Sub-rule (4) of Rule 11, shall be available for regrant unless the date from which the area shall be available for regrant is notified in the Official Gazette at least thirty days in advance. Any application received before the date so notified in the Official Gazette shall be premature and shall not be entertained.

This clause governs three kinds of lands. They are as follows: (i) land which was previously held or which is being held under a quarry lease, (ii) land in respect of which an order has been made for the grant thereof but the applicant has died before the execution of the lease deed, and (iii) the land in respect of which the order granting lease has been revoked under Sub-rule (4) of Rule 11. The land in question in the instant case was leased out in two parcels to two persons, a? stated above, earlier. It was, therefore, previously held by the lessees. One of the three alternative conditions, therefore, was satisfied in the instant case. In case of a part of the land which was held by Piraji Bhikaji Bhjara even the third alienative condition was satisfied because the renewed lease in respect of land held by him was revoked on 1st October 1975. It is clear, therefore, that the land in question is governed by Rule 18(1)(c). Therefore, in order to make it available for re-grant under Rule 18(1)(c), it was necessary for the State Government to issue a notification in the Official Gazette 'at least thirty days in advance.' The first argument which Mr. Sompura has raised is that this rule is ultra vires Section 15 of the Mines and Minerals (Regulation and Development) Act, 1957, under which it has been made. Sub-section (1) of Section 15 provides as follows:

The State Government may, by notification in the Official Gazette, make rules for regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith.

Sub-section (2) and Sub-section (3) of Section 15 have no application to the present case. Sub-sec (1) confers upon the State Government power to make 'rules for regulating the grant of quarry leases' in respect of minor minerals and 'for purposes connected therewith'. In our opinion, power to regulate the grant of a quarry lease necessarily carries with the power not to re-grant a quarry lease for some time after it was once granted or granted and renewed thereafter. It is also necessary to remember that the State Government has been given power under Sub-section (1) of Section 15 to make rules 'for purposes connected,' inter alia, with quarry leases. Whether a quarry lease should be re-granted immediately upon the expiry of an earlier lease or it should not be re-granted for some time is a matter which squarely falls within the power of the State Government to regulate 'the grant of quarry leases' and also to take such other measures as are necessary 'for purposes connected' with quarry leases. We are, therefore, unable to find that Rule 18(1)(c) is ultra vires Sub-section (1) of Section 15.

5. The next part of the challenge is that Rule 18(1)(c) is ultra vires Article 14 inasmuch as it does not specify the period during which notification in the Official Gazette shall be issued under Rule 18(1)(c). Mr. Sompura has argued that omission on the part of the rule-making authority to provide for a period of time confers upon the State Government an arbitrary and capricious power not to issue any notification for any length of time. According to him, therefore, Rule 18(1)(c) inasmuch as it suffers from the vice of arbitrariness and caprice is ultra vires Article 14. We find no substance in this argument raised by Mr. Sompura. In the first instance, no one has a right to say that a certain Government property shall be leased out. The question of undue or hostile discrimination may arise if the State Government capriciously grants lease in respect of its property to one and denies to another. But, if the State Government takes a decision not to lease out its property to any one, either for all time to come or for some time, it cannot be said that refusal on the part of the State Government to do so is hit by Article 14 of the Constitution. It is in that context that we have stated that no one has a right to demand that a property belonging to the State shall be leased out. In the instant case, it is unfortunate that the State Government has not filed any affidavit-in-reply to show the rationale underlying Rule 18(1)(c). We have been left to ourselves to find that Rule 18(1)(c) is otherwise rational. Once a land is leased out for removal of a minor mineral, whether it should be re-granted or not for a similar purpose, may depend upon the availability or otherwise of a minor mineral or adequate availability or otherwise of a minor mineral in that area. It may depend upon other natural factors as well. Whether a river bank which is full of sand, as in this case, should be stripped barren of it and exposed to river water, particularly in times of floods, is a matter for the State Government to consider. Therefore, the power which has been conferred upon the State Government under Rule 18(1)(c) is a reasonable power in as much as it gives the State Government an opportunity to decide, after inter alia taking into account the natural factors obtaining in a particular area, whether that area should be re-leased or should not be re-leased. Therefore, it is difficult to say that Rule 18 (1)(c) suffers from the vice of arbitrariness or caprice. If, in a given case, power has not been exercised under Rule 18(1 )(c) for a reasonable period of time and if it is established that power ought to have been exercised within a particular period of time, the Court may issue a writ of mandamus directing the State Government to exercise that power. Therefore, though omission to specify a particular period in the impugned rule may give rise to a cause-of-action for instituting a petition for a writ of mandamus, it certainly does not vitiate the rule. In our opinion, therefore, Rule 18(1)(c) does not suffer from any infirmity. It is ultra vires Article 14. The first contention raised by Mr. Sompura, therefore, fails and is rejected.

6. The second contention which Mr. Sompura has raised relates to the notifications which the state Government has issued after the petitioner made application to the State Government for granting him quarry lease in respect of the land in question.

7. The facts of the case show that between 9th October 1978 and 4th March 1979 permits were granted to the petitioner eleven times for removing sand which is a minor mineral from the land in question. However, he wanted a regular lease for a longer period of time and not mere ad hoc permits. Therefore, on 18th September 1979 he made a fresh application to the State Government for granting him lease of the land in question for removing sand. Now, it appears that notification under Rule 18(1)(c) was issued on 30th August 1979 in respect of a part of the land in question. It was, however, not published in the Official Gazette. Therefore, it became infructuous. It appears that the petitioner made third application on 3rd October 1979. It was rejected on 61h February 1980. On 26th November 1979, the State Government issued two notifications and published them in the Official Gazette on 6th December 1979. These two notifications in terms stated that the land in question would be available for re-grant of lease after 31st December 1979. The distance of time between the date of publication of these two notifications in the Official Gazette and 31st of December 1979 was 24 days. Rule 18(1)(c), inter alia, provides that no area shall be available for regnant of leases unless the date from which the area shall be available for re-grant is notified in the Official Gazette at least thirty days in advance'. In the instant case, as stated above, the notifications were not published in the Official Gazette 'at least thirty days in advance'. They were published only 24 days in advance. Therefore, the notifications issued by the State Government were not validly published in the Official Gazette on 6th December 1979. Therefore, those notifications are liable to be quashed.

8. In the result, we uphold the second contention raised by Mr. Sompura and declare that notifications published on 6th December 1979 under Rule 18(1)(c) of Gujarat Minor Mineral Rules, 1966, are not valid as they do not comply with the provisions of Rule 18(1)(c). They are, therefore, struck down.

A writ of mandamus shall issue directing the respondents to desist and forbear from enforcing those two notifications. Rule is made absolute to the aforesaid extent with no order as to costs in the circumstances of the case. We may, however, state that the State Government shall be at liberty to issue and publish fresh notifications in accordance with the provisions of Rule 18(1)(c) of the Gujarat Minor Mineral Rules, 1966.


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