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2020 DIGILAW 504 (GUJ)

Devjibhai Nathabhai Vaghera v. State of Gujarat

2020-06-01

SONIA GOKANI

body2020
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. 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 learned advocate for the petitioner herein, who chose to withdraw the Appeal from Order as well as Civil Application. 6. It appears that, thereafter, the petitioner was permitted to operate by unlocking the leaseholder code till the statutory appeal got concluded on 04.02.2019. It appears that on 25.03.2020, there was a nation wide lockdown and the mining was not operational. 6. It appears that, thereafter, the petitioner was permitted to operate by unlocking the leaseholder code till the statutory appeal got concluded on 04.02.2019. It appears that on 25.03.2020, there was a nation wide lockdown and the mining was not operational. Once the lockdown ended for Jamnagar district, the petitioners were desirous of continuing their mining activities. When it realized that leaseholder code of the petitioner was once again locked, it has seriously aggrieved him and hence, he has chosen to approach this Court. According to the petitioner, such an action is wholly illegal, arbitrary and without any authority. It addressed a communication dated 23.04.2020 requesting the authorities to unlock the code, as the same would amount to defiance of the order of the Civil Court and the same was not disregarded an by the authority, which acted in absolutely illegal and arbitrary manner. 7. It is averred by this Court that there is clear direction of learned 2nd Additional Senior Civil Judge, Jamnagar mandating the authority concerned to unlock the code and not to stop the petitioner from using the same till the final decision. However, the Respondent authorities have not abided by such directions and overreached the process of law and misused the process and have acted in absolutely capricious manner. They are required to abide by the order of learned 2nd Additional Senior Civil Judge, Jamnagar dated 28.01.2019, which has attained finality and, therefore, the authority concerned shall need to follow such an order. Action of the authority being absolutely contrary to the provisions of Articles 14,15,19 and 21 of the Constitution of India and as the petitioner is suffering from a huge loss due to lock down and are further incurring loss, because of the illegal action of the authorities, this petition has been preferred. 8. According to the petitioner, there is no further efficacious remedy available as due to pandemic and lock down, Civil Courts are not accepting interlocutory applications. 9. This Court (Coram: B.A. Vaishnav, J.) on 13.05.2020 issued notice which was duly served upon the Respondents. 10. Affidavit-in-reply is filed by the Respondent No.3- Geologist Mr.Mehul Dave stating on oath that he is conversant with the entire issue. It is urged that alternative efficacious remedies are available. A mechanism is provided under Rule 18(A) of the Gujarat Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017. 10. Affidavit-in-reply is filed by the Respondent No.3- Geologist Mr.Mehul Dave stating on oath that he is conversant with the entire issue. It is urged that alternative efficacious remedies are available. A mechanism is provided under Rule 18(A) of the Gujarat Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017. The query lease was granted for mining in May, 2017 for the period of 03 years. The authority had issued show cause notice on 31.08.2018 to the petitioners to deposit amount of Rs.1,57,68,7,189/- towards penalty of illegal excavation of sand. On 05.12.2018, the Deputy Director, Appeal and Flying Squad, Gandhinagar passed an order of penalty. On 11.12.2018, the authority had locked the code due to the said illegal action. Being aggrieved by the said show cause notice, the Special Civil Suit has been filed, where the Court, while granting injunction to unlock the leaseholder code also had directed that for recovery of the amount of penalty and Appeal proceedings, observations of the Court may not come in the way of the proceedings. 10.1 It is the say of the respondent authority that the appeal preferred before the Additional Director, Appeals and Flying Squad, Gandhinagar being Appeal No.7 of 2019 has resulted against the petitioner on 04.02.2020, and therefore, the lease hold lock was applied. Thus, in view of the fact that the appeal preferred by the petitioner challenging the order imposing penalty since was rejected, the Respondent can lock the same unless penalty is paid. 10.2 It is further the say of the respondent that Rule 18(2)9a) of the Rules of 2017 permits the leaseholder to operate the lease after payment of the amount of penalty or, in a given case, if the lease holder chose to challenge the order in Revision before the Commissioner of Geology and Mining as per Rule 18 of the Rules, and in that case, the leaseholder can deposit 25% of the penalty amount with the Government for the purpose of reopening of lease hold online royalty account. The State Government is in the process of preparing a proposal for filing application for vacating the order of injunction dated 28.01.2019 passed by learned 2nd Additional Senior Civil Judge, Jamnagar. 11. In the rejoinder affidavit of the petitioner, he has denied all the details given in the affidavit-in-reply. 12. This Court has extensively heard Mr. Nishit P. Gandhi, learned advocate for the applicant and Ms. 11. In the rejoinder affidavit of the petitioner, he has denied all the details given in the affidavit-in-reply. 12. This Court has extensively heard Mr. Nishit P. Gandhi, learned advocate for the applicant and Ms. Nidhi Vyas, learned Assistant Public Prosecutor for the State and also considered legal authorities sought to be relied upon by them. 13. At the outset, it is to be noted that this petition has been preferred on the ground that due of lock down, the Civil Courts are not taking up the matters and, therefore, the petitioner cannot be left remediless. On making an enquiry from the Registrar (Judicial), he has conveyed to this Court that the trial Courts are taking up urgent civil matters, more particularly, if it relates to injunction application or any breach of injunction where urgency is made out. Therefore, the very cause does not survive. Learned advocate Mr. Gandhi for the petitioner was given an option to withdraw this application on this ground. However, he has chosen, on instructions, not to withdraw. This Court is of the opinion that when the Special Civil suit is already pending before the Civil Court, challenging the very show cause notice, where the Court has granted mandatory injunction in favour of Petitioner with additional direction to the respondent not to be deterred by such injunction so far as recovery of the amount, as permissible under the law, if needs to be undertaken, approaching this Court straightaway is itself not desirable nor should it be entertained by the Court. At the time when the petitioner approached this Court, possibly he was under the belief that the civil courts are not taking up the civil matters due to lock down in wake of pandemic of COVID- 19 virus, although, without approaching the trial court. However, after once it has been confirmed from the administration of the District Court of the concerned district through the Registrar (Judicial) that all urgent applications of injunction are being entertained by the civil court, insisting on proceeding with this petition rather than approaching the court concerned should not be encouraged nor entertained by the court. This petition could be straight way disposed of by not entertaining on the ground of availability of efficacious remedy and yet not being resorted to with cost since the petitioner chooses not to approach the civil Court for no valid reasons. This petition could be straight way disposed of by not entertaining on the ground of availability of efficacious remedy and yet not being resorted to with cost since the petitioner chooses not to approach the civil Court for no valid reasons. However, considering initial circumstances under which this petition has been preferred where there did exist ambiguity over the civil court’s availability for civil work, no order of cost is imposed. Moreover, there is an additional ground for not entertaining this Petition. Principle are well laid down for also entertainment of Petition under Article 226 even when alternative remedy is available, here, the Petitioner chose the jurisdiction of Civil court against Show Cause notice and also for its breach initially and hence, he cannot be permitted to now ride on two horses, taking a vault face. 14. This Court is conscious of the fact that after once the specific order had been passed by the trial court and when the respondent had not unlocked the leaseholder account of the petitioner, it had approached this Court by way of Appeal from Order. When the trial Court in an application under Order 39 Rule 2A of the CPC chose to frame the issue against which during the Appeal from Order was preferred and at the time of hearing, the respondent chose to unlock the code, when it was expressed before this Court that the petitioner was desirous of seeking permission to withdraw the application as well as Civil Application and such permission was granted. At the same time, this Court cannot be unmindful of the fact that the appeal preferred on 09.01.2019 before the Deputy Director, (Appeals and Flying Squad), Gandhinagar, was pending at that stage for adjudication. The said appeal came to be decided in the interregnum on 04.02.2020 in Appeal No.7 of 2019, after giving the fullest opportunities to both the sides. Because this appeal resulted against the petitioner, his account came to be locked. 15. Against this rejection of the appeal, he has approached the revisional authority and his revision is pending, as two times revision applications are permissible under the law. Because this appeal resulted against the petitioner, his account came to be locked. 15. Against this rejection of the appeal, he has approached the revisional authority and his revision is pending, as two times revision applications are permissible under the law. It is to be noted that Rule 18(2) (a) of the Rules, 2017 permits the leaseholder to approach the Revisional authority for opening of the leaseholder account either after the payment of the amount of penalty or on leaseholder depositing minimum 25% of the penalty amount with the Government or the State authority, it also can permit reopening of the leaseholder account. The petitioner has chosen to do neither of it. It has though preferred revision application, it has not gone before the concerned authority for reopening of the account knowing fully well that he needed to deposit minimum 25% of the amount of penalty, if it so chose to do it. Therefore, instead of taking recourse to efficacious remedy available departmentally, he has preferred to approach this Court under Article 226 of the Constitution on the ground of Civil Court's jurisdiction not being available and when it is already available, as mentioned hereinabove, it has still been insisted on this Court to opine on merits in this petition under Article 226 of the Constitution of India rather than approaching by way of a remedy, which he himself has chosen at the first instance. 16. Noticing the fact that from the order of appellate authority that district authorities and the police are frequently getting complaints of illegal mining, disclosing the details, which have been furnished by the petitioner with glaring facts, which have emerged, this Court is of the opinion that the petitioner shall have the option either before the Civil Court where it has chosen to approach or go before the revisional authority making a request for reopening of the leaseholder account. 17. The court also needs to make a specific mention of the fact that it agrees with the submissions made by the learned Assistant Public Prosecutor Ms. Vyas from the overall scrutiny of the facts that the respondent authority could have insisted for 25% of the amount to be deposited at the stage of opening of the leaseholder account when both the parties were before this Court. Vyas from the overall scrutiny of the facts that the respondent authority could have insisted for 25% of the amount to be deposited at the stage of opening of the leaseholder account when both the parties were before this Court. However, if, at that stage, since Appeal was yet pending and since the Respondent had not implemented the order of the trial Court and therefore, chose not to insist on anything without raising any legal challenge to the order of injunction, cannot furnish the ground to insist on the opening of the leasehold account without approaching the revisional authority or without approaching the Civil Court at this stage in this petition, under Article 226 of the Constitution. 18. Resultantly, this petition, for the aforementioned reasons, is not entertained. The petitioner, however, if choses to go before the concerned Court, it shall decide its own course, in accordance with law, and on the strength of the merits of the matter of both the sides shall adjudicate the issue without further loss of time. So far as the revisional authority is concerned, it also, without being influenced by any of the observations of this Court, shall independently decide the matter, as far as possible expeditiously within Four weeks. The Civil Court, if is approached, it shall decide the matter within 10 weeks from the date of receipt of the copy of this order giving opportunities to both the sides. 19. Petition stands disposed of accordingly.