SCA/5696/2007 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5696 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= GUJARAT STATE ROAD TRANSPORT CORPORATION & 2 - Petitioner(s) Versus ABDULHAMID M SHAIKH - Respondent(s) ========================================================= Appearance : MR HS MUNSHAW for Petitioner(s) : 1 - 3. RULE SERVED for Respondent(s) : 1, MR SK BUKHARI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 11/07/2008 ORAL JUDGMENT 1. The petitioner – Gujarat State Road Transport Corporation has filed this petition SCA/5696/2007 2/8 JUDGMENT under Articles 226 and 227 of the Constitution of India praying for quashing and setting aside the impugned judgments dated 10.1.2007 passed by the Additional District Judge, Fast Track Court No.5 at Bharuch in Misc. Civil Appeal No.101 of 2006 and the order dated 27.11.2006 passed by the Second Additional Senior Civil Judge at Bharuch below Ex.5 in Regular Civil Suit No.504 of 2006. 2. This Court has issued rule on 2.3.2007, after following judgment of this Court in the case of Ramubhai Dahyabhai Rathod Vs. Surat Municipal Corporation and others, GLR 2000 (3) 2679. The Court has also stayed the order of trial Court as well as the appellate Court. 3. Heard Mr.Rajesh Chauhan, learned advocate appearing for Mr.H.S.Munshaw, learned advocate for the petitioner and Mr. Sunil SCA/5696/2007 3/8 JUDGMENT Mehta, learned advocate appearing for Mr.S.K.Bukhari, learned advocate for the respondents. 4. It is the case of the petitioner that the petitioner alloted a stall at Bharuch for a period of 10 months to the respondent through letter dated 30.11.2005 for running a business of general and cutlery items. The respondent started business with effect from 12.12.2005. Several notices were issued to the respondent for carrying on business of other items on receipt of complaints by the Managing Director of the Corporation. The terms of the license expired on 11.10.2006. The Depot Manager at Bharuch was of the view that the license period should not be extended. 5. The petitioner, therefore, issued notices to the respondents to hand over possession of the stall. Ultimately on completion of the SCA/5696/2007 4/8 JUDGMENT license period of 10 months the possession was taken over on 24.11.2006. 6. The respondent has, thereafter, filed Civil Suit No.504/2006 in the Court of learned Civil Judge (S.D.) Bharuch. The possession of the stall was already taken by the petitioner and yet the Trial Court passed an order on 27.11.2006 to the effect that the respondent should not be vacated from the property. 7. Being aggrieved by the said order of the learned trial Judge the petitioner preferred Misc. Civil Appeal No.101 of 2006 before the District Court at Bharuch and the said Appeal was also dismissed on 10.1.2007. 8. It is these two orders, which are under challenge in the present petition. 9. Mr.Chauhan, learned advocate appearing for SCA/5696/2007 5/8 JUDGMENT the petitioner has submitted that the trial Court has no jurisdiction to hear and decide the interim relief application and civil suit. He has further submitted that the lower Appellate Court has erred in not determining the issue of the jurisdiction of the lower Court and, therefore, even the judgment of the District Court is erroneous and requires to be quashed and set aside. He has further submitted that the stall was offered on leave and license basis for a period of 10 months on various terms and conditions mentioned in the tender form as well as the letter dated 23.11.2005 and letter dated 30.11.2005. The respondent was under an obligation to use the said stall only for general cutlery purpose. It is further submitted that several complaints were made against the respondent to the effect that the respondent violated terms and conditions and was selling music cassettes etc, which were prohibited and, therefore, SCA/5696/2007 6/8 JUDGMENT the respondent was issued notices and given ample opportunities to correct himself. He has further submitted that the reports were received by the Divisional Controller from the lower authorities about the violation of the terms and conditions. 10. He has further submitted that the period of contract started from 12.12.2005 and it was ended on 11.10.2006 and the said contract was not extended thereafter. The petitioner has already taken possession of the stall from the respondent. After taking over possession, suit was filed wherein order of interim relief was passed and the said order was confirmed by the said Court. Both the orders are without jurisdiction and hence the same are required to be quashed and set aside. 11. Mr.Mehta, learned advocate appearing for the respondent on the other hand has SCA/5696/2007 7/8 JUDGMENT submitted that there is concurrent finding of the Courts below and hence this Court should not entertain the present petition while exercising its jurisdiction under Article 227 of the Constitution of India. He has further submitted that the respondent's goods are lying in the stall and the respondent is in possession. The petitioner has sealed the premises and hence the seal is required to be removed and in any case the respondent be permitted to take away the goods lying in the said stall. 12. Having heard learned advocates appearing for the respective parties and having gone through the orders of the Courts and having considered the fact that the license period has already expired and the petitioner has taken possession from the respondent, the Courts below committed grave error in granting interim injunction in favour of the respondent. When the license period is over SCA/5696/2007 8/8 JUDGMENT and possession is taken back there is no question of granting any injunction in the matter. Both the Courts have, therefore, clearly acted in excess of the jurisdiction and hence this is a fit case where Court has to exercise its jurisdiction under Article 227 of the Constitution of India. The orders passed by the Court below are, therefore, quashed and set aside. Interim injunction granted by the Court and confirmed by the appellate Court stands vacated. It is, however, made clear that if any goods of the respondent are lying in the stall in question he may be permitted to take away the said goods. 13. Subject to the aforesaid clarifications and directions this petition is accordingly allowed. Rule is made absolute without any order as to costs. (K. A. PUJ, J.) kks