1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.316 OF 2009 M/s.D.S.Kulkarni Developers Ltd. .. Appellant Versus State of Maharashtra & Ors. .. Respondents Mr.Madhav Jamdar with Ms.Pooja Tidolkar with Prachiti Darda i/b. M/s.ALMT Legal for appellant Mr.A.R.Patil, AGP for respondent Nos. 1 to 3. CORAM : S.C.DHARMADHIKARI, J. DATE : 27th April 2010. P.C.: 1] This is an appeal from order by the original plaintiff. The original plaintiff is aggrieved by refusal of the trial court to grant interim injunction in terms of prayers of applicant made in that behalf. 2] The injunction that was sought was against the original defendant No.3 Tahsildar restraining him from implementing in any manner the order dated 30th April 2007. 3] The appellant contended that the suit is filed for declaration and 2 injunction that the order is illegal, null and void. The appellant plaintiff is a builder and developer. It is a limited company. It is developing certain properties at Hadapsar, Pune. The building plans were submitted which were sanctioned and, thereafter, the order dated 6th March 2006 was passed directing the appellants to pay a sum of Rs.9,02,356/- being non agricultural assessment. 4] Despite this position, on 21st February 2007 a notice was received alleging that the plaintiff excavated Murum illegally and unauthorisedly. A reply was filed pointing out that the land was developed pursuant to the sanctioned plans and there is no question of any unauthorised excavation when the land is being levelled and the construction is made. 5] The grievance is, ignoring all these pleas a royalty and penalty was imposed in the sum of Rs.50,21,800/- i.e. Rs.7,17,400 being royalty whereas the balance is penalty for the alleged unauthorised excavation. 6] It is this notice and order which is the subject matter of the suit and the prayer was to stay the operation of the notice. 3 7] Upon the appeal from order being placed before this Court, a notice was directed to be issued to the respondents original defendants and in the meanwhile status quo was granted. 8] The appeal was placed for admission today and with the consent of parties, it is taken up for hearing forthwith. 9] The Court below has essentially gone by the objection to the jurisdiction and held that the notice under challenge cannot be made subject matter of a civil suit. Therefore, the declaration and permanent injunction cannot be granted by civil court. My attention was invited by Mr.Patil to some of the paras of the impugned judgement including para 9 and it is contended that even on merits, the application for injunction is rejected. Mr.Patil submits that the appellants have not made out any prima facie case so also the balance of convenience is not in their favour. On the other hand these are dues owed to Government and which must be paid and may be paid subject to outcome of the litigation. 10] Mr.Jamdar appearing for appellants on the other hand submits that the law on the point is clear and Full Bench of this Court in its decision 4 reported in 2006(6) BCR page 6 (Gopinath Ganpatrao Pensalwar Vs. State of Maharashtra) clearly holds that the suit is not barred. He submits that there is no discussion insofar as merits are concerned as to how notice could have been issued in the teeth of the permissions and sanctions which are granted. 11] With the assistance of learned Counsel for parties, I have perused the order under challenge. To my mind, the learned Judge has essentially based his prima facie conclusion on the jurisdiction of the civil court. That is something which need not be conclusively decided at this stage. Suffice it to state that the objection to the jurisdiction of the civil court being raised does not mean that no ad-interim orders can be granted. Further, neither is the Full Bench decision of this court noticed nor its effect considered by the trial court. Prima facie, the jurisdiction of the civil court is not barred. Further, the appellant has produced material including demonstrating that if the Mines and Minerals Act, 1957 is applicable, then, the Tahsildar has no authority to issue the impugned notice. In the instant case, the legality and validity of the notice is under challenge. 5 12] It is the grievance of the appellants that the notice could not have been issued, once the land is permitted to be used for non agricultural purpose and assessment has been done. Further, the Court below has not adverted to any of the documents including the statements and panchanama. 13] For these reasons to my mind, the appellant plaintiff did make out an arguable case. As far as balance of convenience and irreparable loss is concerned, the Court below could have passed appropriate order balancing rights of both parties, including safeguarding Government revenue, if any. 14] In the circumstances, the following order would meet the ends of justice. 15] During the pendency of the suit, there shall be an injunction restraining, respondents original defendants from giving effect to the notice dated 21st February 2007 and the order dated 30th April 2007 on the condition that the appellants deposit in the trial court a sum of Rs. 7,18,000 and give security to the satisfaction of the trial court for the 6 balance amount. 16] The amount be deposited with a period of four weeks from today so also the security be furnished and on compliance therewith, there will be an injunction in the aforementioned terms against the respondents. In default, the order would stand vacated forthwith. 17] This will be an interim arrangement during the pendency of the suit. However, the trial court to endeavour and dispose of the subject civil suit No.1002 of 2007 as expeditiously as possible. 18] It is clarified that no opinion on merits is expressed and all contentions of both sides are kept open. The trial court to decide the suit uninfluenced by the observations in the impugned order so also the instant order. (S.C.DHARMADHIKARI, J)