SCA/6976/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6976 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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 ? ========================================================= NAKUBHAI BAPUBHAI KHACHAR & 5 - Petitioner(s) Versus RAVJIBHAI KARAMSIBHAI UTELIYA & 3 - Respondent(s) ========================================================= Appearance : MR JIGAR P RAVAL for Petitioner(s) : 1 - 6. MS MAMTA R VYAS for Respondent(s) : 1, None for Respondent(s) : 2 - 3. MR KL PANDYA AGP for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 08/07/2008 ORAL JUDGMENT 1. Rule. Ms.Mamta Vyas, learned advocate waives the service of notice of rule on behalf of the respondent No.1 and Mr.K.L. Pandya, learned Assistant Government Pleader waives the service of notice of rule on behalf of the respondent Nos.2 to 4. SCA/6976/2008 2/6 JUDGMENT 2. With the consent of the parties, the matter is taken up for final hearing. 3. By way of this petition under Article 227 of the Constitution of India, the petitioners – original plaintiffs have prayed for appropriate writ, order and/or direction, quashing and setting aside the impugned judgement and order dtd.27/3/2008 passed by the learned Presiding Officer, FTC No.6, Bhavnagar in Misc.Civil Application No.157 of 2007. 4. It is not in dispute that the respondent No.1 is allotted land admeasuring 1 Acres out of Survey No.147/8 of village Itariya, Taluka Gadhada, District Bhavnagar, on lease for mining purpose. 5. It was apprehended that the respondent No.1 was carrying the mining activity on the land bearing Survey No.147/2, which according to the plaintiff belongs to him and therefore, the petitioners – original plaintiff preferred Regular Civil Suit No. 491 of 2007 in the court of learned Principal Senior Civil Judge, Bhavnagar for declaration and SCA/6976/2008 3/6 JUDGMENT permanent injunction. In the said suit, the plaintiff submitted an application at Ex.5 for interim injunction restraining the respondent No.1 herein – original defendant No.1 from continuing mining activities in the land bearing Survey No.147/2. The learned Principal Senior Civil Judge, Bhavnagar, vide order dtd.13/9/2007 allowed the application Ex.5 and granted interim injunction as prayed for in terms of para 10A and 10B of the application Ex.5. Being aggrieved with the said order passed below application Ex.5 dtd.13/9/2007 in Regular Civil Suit No. 491 of 2007, the respondent No.1 herein – original defendant No.1 preferred appeal being Misc.Civil Appeal No.157 of 2007, which came to be heard by the learned Presiding Officer, FTC No.6, Bhavnagar, who vide his judgement and order dtd.27/3/2008 allowed the said appeal by quashing and setting aside the order passed below Ex.5 in Regular Civil Suit No. 491 of 2007 dtd.13/9/2007 and hence the petitioners – original plaintiff are before this court by way of present petition under Article 227 of the Constitution of India. 6. Mr.Jigar Raval, learned advocate appearing on behalf of the petitioners has submitted that it is not in dispute SCA/6976/2008 4/6 JUDGMENT that the respondent No.1 is allotted land admeasuring 1 Acres out of Survey No.147/8 of village Itariya, Taluka Gadhada, District Bhavnagar, on lease for mining purpose and therefore, he can not carry mining activity in any other land, more particularly in land bearing Survey No.147/2 and therefore, it is submitted that the learned appellate court has committed an error in allowing the appeal and the trial court justified in restraining the respondent No.1 – original defendant No.1 from carrying mining activity in the land bearing Survey No.147/2. 7. Ms.Mamta Vyas, learned advocate appearing on behalf of the respondent No.1 – original defendant No.1 is not disputing that the respondent No.1 is allotted land admeasuring 1 Acres out of Survey No.147/8 of village Itariya, Taluka Gadhada, District Bhavnagar, on lease for mining purpose. She has also admitted that the respondent No.1 – original defendant No.1 cannot carry any mining activity in the land other than land bearing Survey No.147/8 of village Itariya, Taluka Gadhada, District Bhavnagar. 8. In view of the above and when the the respondent No.1 is SCA/6976/2008 5/6 JUDGMENT allotted land admeasuring 1 Acres out of Survey No.147/8 of village Itariya, Taluka Gadhada, District Bhavnagar, on lease for mining purpose, the respondent No.1 cannot carry mining activity on the land other than land admeasuring 1 Acre out of Survey No.147/8 of village Itariya, Taluka Gadhada, District ; Bhavnagar. Under the circumstances the impugned orders passed by the Presiding Officer, FTC No.6 Bhavnagar, in Misc.Civil Appeal No.157 of 2007 dtd.27/3/2008 requires to be quashed and set aside by restraining the respondent No.1 – original defendant No.1 from carrying mining activity on the land other than land bearing Survey No.147/8. 9. For the reasons stated above, the petition succeeds. The impugned Judgement and order passed by the Presiding Officer, FTC No.6, Bhavnagar in Misc.Civil Appeal No.157 of 2007 dtd.27/3/2008 is hereby quashed and set aside and the respondent No.1 herein – original defendant No.1 is hereby restrained from carrying any activity on the land bearing Survey No.147/2 of village Itariya, Taluka Gadhada, District ; Bhavnagar. The Collector, Bhavnagar – respondent No.1 and the Mamlatdar, Gadhada, District ; Bhavnagar are directed to monitor and see that the SCA/6976/2008 6/6 JUDGMENT respondent No.1 – original defendant No.1 shall carry mining activity in the land admeasuring 1 Acre out of Survey No.147/8 of village Itariya and see to it that the respondent No.1 herein shall not carry any activity on the land bearing Survey No.147/2 or on any other land of village Itariya. 10.Rule is made absolute accordingly. Office to issue writ of this order immediately. In the facts and circumstances of the case, there shall be no order as to costs. [M.R. SHAH, J.] rafik