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Judgment
Rajendra M. Sareen, J
[1] The petitioner has preferred present petition under Article 226 of the Constitution of India for the following main reliefs:
“20(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 respondent authorities to unlock the Lease Holder Code no. QL0107039414 forthwith;
(B) YOUR LORDHIPS may be pleased to hold the respondent authorities guilty of contempt of the order dated 20.01.2020 passed by the ld. 3rd
Additional Senior Civil Judge, Jamnagar below Exh. 5 application in Special Civil Suit no.39 of 2019;â€
[2] It is the case of the petitioner that the petitioner is earning her livelihood by doing mining business and vide order dated 30.11.2015, the petitioner
was granted quarry lease for mining of sand lease holder Code No. QL0107039414 was granted to the petitioner.
[3] It is also the case of the petitioner that on 30.07.2018, a notice was issued to the petitioner asking her to deposit an amount of Rs.1,32,11,200/- for
the alleged illegal excavation of the sand and thereafter order dated 27.12.2018 also came to be passed, against which appeal is preferred and same is
pending before the competent authority at Gandhinagar.
[4] It is also the case of the petitioner that the respondent authorities illegally locked lease holder code of the petitioner, due to which petitioner could
not continue here business though the lease period is still continuing.
[5] It is also the case of the petitioner that the petitioner preferred Special Civil Suit No.39 of 2019 before the learned Principal Senior Civil Judge,
Jamnagar seeking declaration and injunction. In the said suit, application Exh.5 seeking temporary injunction was allowed and the respondent
authorities were directed to unlock the on-line lease permission of the petitioner and the said order has attained finality as not challenged.
[6] It is also the case of the petitioner that despite order dated 20.01.2020, the lease holder code of the petitioner was not unlocked. The petitioner has
also made several oral as well as written representation dated 27.01.2020 and 24.04.2020 and thereafter, petitioner preferred application for breach of
injunction before the learned Civil Court and the same is pending and notice is yet not issued due current Covid-19 Pandemic.
[7] It is also the case of the petitioner that there is clear direction of the learned 3rd Additional Senior Civil Judge, Jamnagar directing the respondent
authorities to forthwith open the lease holder code and not to stop the petitioner from using the same till contrary order is passed by the competent
authority and it is specifically observed by the Civil Court that the observation shall not come in the way of the respondent authorities for recovery, as
may be permissible. The respondent No.3 also wrote letter informing respondent No.2 about injunction order passed in favour of the petitioner.
Despite the mandatory order, the respondent authorities have chosen not to abide by the same and the lease holder code of the petitioner is not
unlocked, and since application under Order 39 Rule 2 of the CPC is pending due to Pandemic situation and the Civil Courts are not hearing the
interlocutory applications, the petitioner has no other alternative remedy but to prefer present petition.
[8] This Court (Ms.Justice Sangeet K.Vishen) issued notice vide order dated 12.06.2020 making it returnable on 26.06.2020 considering the fact that
order has been passed however, the authorities have not taken any steps to unlock the lease account.
[9] On the returnable date, the respondents appeared through learned AGP and learned AGP sought time for filing reply. However, no reply has been
filed till date.
[10] With the consent of the learned advocates appearing for the respective parties, present petition is taken up for final hearing today.
[11] Heard Mr.Nishit Gandhi, learned advocate for the petitioner and Mr.Bharat Vyas, learned AGP for the respondents â€" State.
[12] 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. But now 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. 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. But, now the situation is
changed and all urgent applications of injunction are being entertained by the civil courts. Therefore, this petition could be straight way disposed of by
not entertaining on the ground of availability of efficacious remedy. 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, the petitioner cannot be permitted to now ride on two horses, taking a vault face.
[13] Resultantly, this petition, for the aforementioned reasons, is not entertained. The petitioner has already availed the remedy before concerned Civil
Court and hence, the concerned Civil Court shall decide the application of the petitioner under Order 39 Rule 2(A) of the CPC in accordance with law
and on the strength of the merits of the matter of both the sides and shall adjudicate the issue without further loss of time and shall decide the entire
matter, after giving opportunities to both the sides, preferably within a period of 10 weeks from the date of receipt of copy of this order.
Petitioner is at liberty to produce the copy of this order before the Trial Court.
[14] Petition stands disposed of accordingly.