Heard learned advocate for the petitioner and learned AGP for the State. The petitioner, by way of this petition under Article 226 of the Constitution of India, has approached this Court with following prayers:
(A) to hold that circular dated 28.06.2011 annexed to the present petition at Annexure-A is illegal and unconstitutional and be further pleased to quash and set aside the same;
(B) to direct respondent State of Gujarat and respondent No. 1 and 2 in particular to get necessary permission for extraction and sale of major mineral in the form of limestone from respondent No.5 Ministry of Mines, Union of India before selling the limestone any further available with the State of Gujarat in the process of constructing a canal between Veraval to Jamnagar as a part of salinity prevention measure;
(C) during the pendency and/or final disposal of the present petition be pleased to stay operation, implementation and execution of circular dated 28.06.2011 annexed to the present petition at Annexure-A;
(D) during the pendency and/or final disposal of the present petition be pleased to restrain the respondents no.1 and 2 from selling limestone in the open market directly or indirectly through their agents, servants, contractors available with them as a part of construction of the canal between Veraval to Jamnagar being part of salinity control measure;
(E) to award the costs of the present petition;
(F) to pass such other and further order/s in the interest of justice be granted.
The petitioner has made averments in the memo of the petition indicating that the petitioner is a permanent resident of Devdi Village of Talala Taluka, Dist. Junagadh and he is into the business of agriculture and other miscellaneous commercial activities during other season and he is not into mines and minerals. The petitioner, by way of this petition, has challenged the legality and validity of circular dated 28.06.2011 on the ground that the State does not have any power, authority or legitimate right to issue this circular as the mineral, limestone, dolomite, quartz are admittedly 'major minerals' governed by the provision of the Mines and Mineral (Development and Regulation) 1957 and therefore, this circular being contrary to the provisions of the said act and falling outside the purview of the subject minerals which are falling within the jurisdiction of the State, the said circular could not have been issued. The respondents have, in their affidavit in reply on page 41, taken up specific contention with regard to the locus standi of the petition to file and maintain the petition under Article 226 of the Constitution of India. This contention has remained uncontroverted in any manner.
Learned AGP, in the beginning, submitted that the petition is seriously resisted on account of lack of locus standi in the petition to file and maintain the present petition. Learned advocate for the petitioner submitted that the petitioner is a citizen of India and domicile of Gujarat and therefore, any illegality done by State could be said to be affecting him and he has right to challenge the same by way of petition under Article 226 of the Constitution of India.
That apart, no other contentions have been raised for justifying the locus standi on part of the petitioner, the Court is of the considered view that this petition is required to be dismissed for the following reasons namely:
(1) The petitioner has moved this Court in his personal capacity under Article 226 of the Constitution of India on the ground that he being a citizen of this Country has right to challenge illegality in any form perpetrated by either the State or its instrumentality and locus in such a situation cannot be challenged by the State. In my view, this submission is wholly misconceived to say that it deserves outright rejection as the purport of Article 226 of the Constitution of India is absolutely clear. The petition when filed for invoking Article 226 of the Constitution of India, it is duty cast upon the petitioner to establish his right, if any and/or obligation flowing to him which he needs enforcement or breach of any duty which affects him and therefore, in absence of these ingredients the petitioner cannot maintain this petition in his personal capacity.
(2) Learned advocate for the petitioner has very fairly submitted that the petitioner has not approached this Court in any manner except in his personal capacity as the citizen of this Country and has right to approach the Court under Article 226 challenging any illegality and/or irregularities perpetrated by the State or its instrumentality.
(3) Learned advocate for the petitioner has further contended that the petitioner is entitled to challenge the circular being unconstitutional, unauthorized and without any jurisdiction as the said circular violates the basic structure of the Constitution of India and distribution of obligation between the State and the Central. This petition is absolutely maintainable, this contention is also to say the least misconceived and requires outright rejection. The petitioner has, as it is stated hereinabove, duty cast upon him under the very constitution that he is entitled to move the Court for redressal of the grievances touching upon his life, liberty and property. The petitioner has narrated about his credential in para 3 of the petition which are set out as under:
"3. The petitioner is a permanent resident of Devdi Village of Talala Taluka, District Junagadh. He is into the business of Agriculture and other miscellaneous commercial activities during the other seasons. He is not into mines and minerals. He is permanent resident of State of Gujarat. He is a respected and distinguished citizen and has got no antecedents."
(4) Apart there from there exists no other averment qua the credential of the present petition. The petitioner, in my view, has to establish any personal injury or existence any personal duty, breach whereof is claimed in the instant case, the petitioner has very fairly admitted in the memo of the petition on oath that the petitioner has got nothing to do either with mineral or mining of minerals at all. When the petitioner has very candidly and fairly admitted on oath before this Court that the petitioner is having no personal injury or grievances qua issuance of the circular impugned and petitioner is interested in maintaining this petition only on the ground of lack of jurisdiction or authority in the State, then in my view, this petition cannot be maintained and is required to be dismissed.
(5) Dismissal of this petition is not dismissal of the contention of the petitioner qua lack of jurisdiction as in my view if at all the petitioner is feeling aggrieved on account of this circular, then he has a public spirited litigation to establish his filing petition as such challenging the action of the State or wherein he will have to also establish his credential and his genuine interest as a public interest litigation in the litigation to be filed. In respect of the decisions in case of Director of Settlements, A.P. and ors vs. M.R.Apparao and anr. reported in (2002) 4 SCC page 638 the Apex Court has now laid down in unequivocal terms the test required to be passed by the public spirited citizen for maintaining petition under the public interest litigation and in our High Court also there are rules governing the petitions to be filed as public interest litigation and those petitions are required to be filed under the nomenclature qua public interest litigation or public interest writ petition. Admittedly, this petition does not qualify any of the norms mentioned in the list nor has the petitioner claimed, in any manner for this petition is filed by way of public interest litigation. Therefore, in my view this petitions required to be dismissed without examining the matter on merits as the petitioner has no locus standi to maintain this petition if each and every citizen without any personal injury is permitted to file petition of this nature then I am afraid that would amount to take greater injustice to rule of law which would not book such kind of approach on the part of the citizen therefore without going into the merits of the matter, this petition is required to be dismissed. Notice is discharged with no order as to costs. This dismissal shall not come in the way of the petitioner in filing appropriate petition by way of public interest litigation if he is qualified to file such a petition in view of the 'The High Court of Gujarat (Practice and Procedure for Public Interest Litigation) Rules,2010. At this stage, Ms. Vishen has contended that Court may observe that the Court has not decided in any manner against the such power and or decision for issuing circular. This request is misconceived as the Court has in terms stated hereinabove that the Court has not touched the merits of the matter qua the circular in question. The Court has dismissed the petition only on ground of lack of locus standi in the petitioner to maintain this petition in this form, in his personal capacity and as a public spirited litigation; if and when such petitions are filed the State's right to oppose the same on account of the petitioner in being public interest litigation is always open. State has considered its being a public spirited litigation.
In view of dismissal of this application, civil application does not survive. Hence, civil application stands dismissed.
[S.R.BRAHMBHATT, J.] JYOTI Top