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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Sonia Gokani, J.
Devjibhai Nathabhai Vaghera - Petitioner
Versus
State of Gujarat - Respondent
R/Special Civil Application No. 7058 of 2020
Decided On : 01-06-2020
Gujarat Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 - Rule 18(A) - Order 39 Rule 2A - Constitution of India,1950 - Article 226 - Petitioner has invoked extraordinary jurisdiction vested in this Court seeking directions qua respondent authorities to forthwith unlock its lease holder Code - Petitioner most humbly and respectfully prays that may be pleased to issue a writ of mandamus or a writ in nature of mandamus or any other appropriate writ order or directions directing respondents authorities to unlock Lease Holder - Petitioner has been granted quarry lease in his favor by order of Government in month - While such period of lease continued a show cause notice for alleged illegal mining and for recovery of huge amount has been issued present petitioner by respondent Authority - Challenging same petitioner filed Special Civil Suit which is pending before Court of Senior Civil Judge - Petitioner also moved an application for injunction in said Special Civil Suit and trial Court vide its order in absence of any reply filed by respondent granted application for injunction in favor of petitioner - By way of mandatory direction Civil Court directed respondent authority to open and unlock leaseholder - While so doing, the Court also directed that neither order nor any of observations made therein shall come in way of respondent in recovery as may be permissible nor would it come in way of respondent in proceeding with departmental appeal which had been already preferred by petitioner Statute before concerned authority of Appeal and Flying squad - Court below specifically held that none of observations shall be taken recourse to by petitioner at time of proceeding with appeal or in matter of recovery - Despite this mandatory order respondent chose not to abide by same and therefore petitioner initiated action of Civil Procedure Code seeking action against respondent authority for sending concerned officer for attachment of property etc - Court issued show cause notice to the respondent and also framed issue on as to whether there was breach Order Rule of Civil Court - Held, Court also needs to make a specific mention of fact that it agrees with submissions made by Assistant Public Prosecutor from overall scrutiny of respondent authority could have insisted for amount to be deposited at stage of opening of leaseholder account when both parties were before this Court - However at that stage since Appeal was yet pending and Respondent had not implemented order of Court and therefore chose not to insist on anything without raising any legal challenge to order of injunction cannot furnish ground to insist on opening of leasehold account without approaching provisional authority or without approaching Civil Court at this stage in this petition - Court for aforementioned reasons is not entertained petitioner however if chooses to go before concerned Court it shall decide its own course in accordance with law and on strength of merits of matter of both sides shall adjudicate issue without further loss of time - So far as revision authority is concerned it also without being influenced by any of observations of this Court shall independently decide matter as far as possible expeditiously within Four weeks - Civil Court if is approached - it shall decide matter within weeks from date of receipt o copy of this order giving opportunities to both sides - Petition disposed (Para 17)
Facts of the Case:
Petitioner has been granted quarry lease in his favour by the order of the Government in the month of May, 2017. While such period of lease continued, a show cause notice for alleged illegal mining and for the recovery of huge amount has been issued the present petitioner by the respondent Authority. Challenging the same, the petitioner filed Special Civil Suit No.57 of 2018, which is pending before the Court of learned 2nd Additional Senior Civil Judge, Jamnagar. The petitioner also moved an application for injunction in the said Special Civil Suit and the trial Court, vide its order.
Finding of the Court:
Court also needs to make a specific mention of fact that it agrees with submissions made by Assistant Public Prosecutor from overall scrutiny of respondent authority could have insisted for amount to be deposited at stage of opening of leaseholder account when both parties were before this Court - However at that stage since Appeal was yet pending and Respondent had not implemented order of Court and therefore chose not to insist on anything without raising any legal challenge to order of injunction cannot furnish ground to insist on opening of leasehold account without approaching provisional authority or without approaching Civil Court at this stage in this petition - Court for aforementioned reasons is not entertained petitioner however if chooses to go before concerned Court it shall decide its own course in accordance with law and on strength of merits of matter of both sides shall adjudicate issue without further loss of time - So far as revision authority is concerned it also without being influenced by any of observations of this Court shall independently decide matter as far as possible expeditiously within Four weeks - Civil Court if is approached - it shall decide matter within weeks from date of receipt o copy of this order giving opportunities to both sides.
Result: Petition disposed
ORDER :
1. By way of this petition, present petitioner has invoked the extraordinary jurisdiction vested in this Court under Article 226 of the Constitution of India seeking directions qua the respondent authorities to forthwith unlock its lease holder Code No. QL0107040514.
2. Following are the relief’s sought for in this petition with the factual matrix briefly stated herein after:
“(20) IN the premises aforesaid, the petitioner most humbly and respectfully prays that:
(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions directing the respondents authorities to unlock the Lease Holder Code No.QL0107040514 forthwith;
(B) YOUR LORDSHIPS may be pleased to hold the respondents authorities guilty of contempt of the order dated 28.01.2019 passed by the ld.2nd Additional Senior Civil Judge, Jamnagar below Exh.5 application in Special Civil Suit NO.57 of 2018;
(C) During the pendency and final disposal of the present petition YOUR LORDSHIPS may be pleased to direct the respondent authorities to unlock the lease holder Code No.QL0107040514;
(D) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case;”
3. The petitioner has been granted quarry lease in his favour by the order of the Government in the month of May, 2017. While such period of lease continued, a show cause notice for alleged illegal mining and for the recovery of huge amount has been issued t the present petitioner by the respondent Authority. Challenging the same, the petitioner filed Special Civil Suit No.57 of 2018, which is pending before the Court of learned 2nd Additional Senior Civil Judge, Jamnagar. The petitioner also moved an application for injunction in the said Special Civil Suit and the trial Court, vide its order dated 28.01.2019, in absence of any reply filed by the respondent, granted the application for injunction in favour of the petitioner. By way of mandatory direction, the Civil Court directed the respondent authority to open and unlock the leaseholder Code No.QL0107040514. While so doing, the Court also directed that neither the order nor any of the observations made therein shall come in the way of the respondent in recovery as may be permissible nor would it come in the way of the respondent in proceeding with the departmental appeal, which had been already preferred by the petitioner under the Statute, before the concerned authority of Appeal and Flying squad on 09.01.2019. The Court below, specifically held that none of the observations shall be taken recourse to by the petitioner at the time of proceeding with the appeal or in the matter of recovery. Despite this mandatory order, the respondent chose not to abide by the same, and, therefore, the petitioner initiated action under Order 39 Rule 2A of the Civil Procedure Code seeking action against the respondent authority for sending concerned officer for attachment of the property etc. on 01.02.2019. The Court issued show cause notice to the respondent and also framed issue on 07.03.2019 as to whether, in fact, there was breach under Order 39 Rule 2A of the order of the Civil Court.
4. This had aggrieved the present petitioner since the Court did not decide the question of breach and therefore, he approached this Court, by way of an Appeal from Order No.101 of 2019 and also moved a Civil Application for mandatory direction before this Court.
5. On 03.04.2019, this Court (Coram: A.J. Shastri, J.) issued a notice making it returnable on 12.04.2019 on the ground that one of the terms of the order had not been complied with, by the respondent and thereby it committed breach. On the returnable date, the respondent appeared. It can be culled out that on 22.08.2019, when the matter was taken up for hearing, learned Assistant Public Prosecutor submitted that the lease in question is unlocked by the authorities. The same had been confirmed by the
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