Induba Jitendrasinh Limbad vs The State Of Gujarat & 2

Heard learned advocate Mr.U.I. Vyas for the petitioner and learned Assistant Government Pleader Mr.Tirthraj Pandya.

2. By the impugned order of the Collector dated 30th June, 2007, the Collector has refused to accept the application of the petitioner for grant of quarry lease in the area of Bhogavo River at Wadhwan. Two main grounds are stated for not granting the application of the petitioner. The first is that the area in question falls within radius of 5 kilometer from the urban area of Wadhwan city. The second reason furnished is that if the mining lease is granted, because of excavations, the area would exposed to adverse environment consequences.

remedy of revision available as provided under Rule 9 of the Gujarat Minor Minerals Rules, 1966.

4. As the Court was loath to entertain this writ petition on the aforesaid count, learned advocate for the petitioner submitted that since the petition is admitted, this Court may decide the same on merits and the petitioner may not be relegated to the alternative remedy. Learned advocate relied on judgment in N.K. Karangia Vs State of Gujarat [2012 (5) GLR 4296]. He further relied on another decision of this Court in Jagjivan Mulchand Chokshi Vs Manilal Mohanlal Soni, since Deced. through his heirs [2005 (3) GLH 97], to submit that once the petition is admitted, question of alternative remedy pales into insignificance.

5. In State of Uttar Pradesh Vs Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti [(2008) 12 SCC 675] the Supreme Court did not agree with the proposition that after the admission of the petition, as an invariable rule, the petitioner cannot be relegated to the alternative remedy available. In paragraphs 37 and 28 of the aforesaid decision it was held thus, "Preliminary objection raised by the Corporation before the High Court was well founded and ought to have been upheld. True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ court. It has been so held even by the Supreme Court in several cases that even if alternative remedy is available, it cannot be held that a writ petition is Page 2 of 5 HC-NIC Page 2 of 5 Created On Sat May 07 01:39:51 IST 2016 C/SCA/18315/2007 ORDER not maintainable. However, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even the Supreme Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ petition albeit wrongly and granted relief to the petitioner." (Paras 37 and 38)

6. In the aforesaid view, as an alternative remedy is available, this Court is not inclined to exercise the writ jurisdiction to go into the grounds of rejection and consequently the challenge to the order. The petitioner deserves to be relegated to the alternative remedy. Moreover, as stated above, looking to the subject matter and reasons provided in the Collector's order, it is only appropriate that the mining authorities who are themselves look into the matter in the revisional jurisdiction and consider the case of the petitioner appropriately. The factual aspects of the matter and issue involved as well as the ground on which the order of the Collector is based, are such that it would be more appropriate that the authorities under the Act examines the dispute through alternative forum available under the statute, for, they are the appropriate authorities to go into such questions. For the sole ground as above, this petition is not entertained.

7. Learned advocate for the petitioner apprehended that after passage of this many time, revisional authority may not entertain the revision application. In this regard, it is observed that Page 3 of 5 HC-NIC Page 3 of 5 Created On Sat May 07 01:39:51 IST 2016 C/SCA/18315/2007 ORDER filing and pendency of the present petition shall be a valid ground for the petitioner. Revision, if filed within a period of six weeks from today, shall be accepted by the revisional authority and the revisional authority shall decide the revisional strictly in accordance with law and on its own merits.

8. Since the relief was granted at the time of admission of the petition and has continued for all the time, the submission of learned advocate for the petitioner to continue the same is reasonable, interim relief granted by this Court in order dated 30th November, 2007 is directed to be continued till the petitioner approaches revisional authority or for further period of six weeks, whichever is earlier in point of time. However, it is clarified that this Court has not at all gone into the merits of the case of the petitioner, and even the continuance of interim relief as per the above direction shall not be treated as expression on merits.

8.1 It will be open for the petitioner to file a separate application for interim relief along with the revision application, which may also be considered by the revisional authority in accordance with law and on merits without being in any way influenced by the present order or continuance of interim relief allowed as above for limited purpose.

9. Rule is discharged.

10. Subject to above qualification and limited extension of interim relief, the same will stand Page 4 of 5 HC-NIC Page 4 of 5 Created On Sat May 07 01:39:51 IST 2016 C/SCA/18315/2007 ORDER vacated in this proceedings. No costs.

(N.V.ANJARIA, J.) Anup Page 5 of 5 HC-NIC Page 5 of 5 Created On Sat May 07 01:39:51 IST 2016