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KHUBIRAM versus STATE

High Court of Rajasthan

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KHUBIRAM v STATE - CR Case No. 16 of 2007 [2007] RD-RJ 1994 (16 April 2007)

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR. :::

JUDGMENT

Khubiram Suthar. vs.

State of Rajasthan and others.

S.B.CIVIL REVISION PETITION

NO.16/2007 UNDER SECTION 115 CPC

AGAINST THE ORDER DATED 21.12.2006

PASSED BY SHRI KEDAR LAL GUPTA,

ADDITIONAL DISTRICT JUDGE (FAST

TRACK) NO.2, BHILWARA IN CIVIL

ORIGINAL SUIT NO.133/2006.

DATE OF JUDGMENT ::: 16.4.2007

PRESENT

HON'BLE MR. PRAKASH TATIA, J.

Mr.R Bhansali, for the petitioner.

Mr.HL Kela, for the respondent no.7.

Mr.HR Soni, AGA, for the respondents no.1 to 6.

-----

BY THE COURT:

Heard learned counsel for the parties.

The plaintiff/respondent no.7 filed a suit for declaration and injunction alleging that the plaintiff was granted mining leases of property ML NO.18/91 situated in Village Bagatpura, Tehsil Deogarh, District

Rajsamand. The respondent mining department after 30 years of grant of lease to the plaintiff, granted lease in favour of defendant no.7/petitioner. By this lease, according to the plaintiff, the petitioner wants to excavate the mineral from mine of the plaintiff. The plaintiff, therefore, filed a suit for declaration and injunction.

In the suit, the petitioner/defendant no.7 submitted an application under Order 7 Rule 11 CPC and prayed dismissal of the plaintiff's suit on the ground of want of territorial jurisdiction and further sought dismissal of suit on the ground of availability of effective alternate remedy under the Rajasthan Minor

Mineral Concession Rules, 1986 (for short 'the Rules of 1986') whereunder civil suit is barred.

The trial court dismissed the application of the petitioner even after holding that in fact, the property for which the relief has been sought is situated within Rajsamand District but since the plaintiff's lease was granted from the office of defendants situated within the territorial jurisdiction of Court at Bhilwara, therefore, the suit is maintainable in the Court at Bhilwara. The trial court also took note of the fact that admittedly, the petitioner is in the jurisdiction of Rajsamand District

Court only and still without assigning any reason dismissed the petitioner's application. So far as the civil court's jurisdiction with respect to the suit in question is concerned, the trial court held that the suit is not barred by the provisions of the Rules of 1986.

Hence, this revision petition.

It is not in dispute that the property in dispute is situated within the territorial jurisdiction of the

Court at Rajsamand and Section 16 CPC specifically provides that suit can be filed only within the jurisdiction of the court which court has jurisdiction over the property in dispute. Grant of mining lease in favour of the plaintiff or defendant no.7 in the present facts of the case was absolutely irrelevant because of the reason that the plaintiff's own lease is not under challenge as nobody has challenged the same.

The plaintiff's case is that the defendant no.7 has been granted lease and on the strength of that lease, the defendant no.7 wants to excavate the mineral from the land of the plaintiff which is situated in the territorial jurisdiction of Rajsamand Court, therefore, the subject matter of the suit is situated within the territorial jurisdiction of Rajsamand Court. Therefore, the plaintiff's suit at Bhilwara was not maintainable.

In the same way, the defendant no.7, against whom decree is sought, is situated within the jurisdiction of Rajsamand District Court and none of the cause of action accrued at Bhilwara, therefore, the suit was not maintainable in the Court at Bhilwara on this count also.

Learned counsel for the State supported the petitioner and stated that the suit of the plaintiff is barred because of the reason that Section 48 provides remedy against any unauthorised mining operation by any person or against any person and further the orders passed under Rule 48 are appealable under Rule 43 before the competent authority. Learned counsel for the

State relied upon the judgment of this Court delivered in the case of Satyanarayan and etc. vs. Mining

Engineer reported in 1996 AIHC 5067 and the judgment of the Apex Court delivered in the case of The Municipal

Corporation of Delhi vs. Suresh Chandra Jaipuria and another reported in AIR 1976 SC 2621. The Hon'ble Apex

Court in Suresh Chandra Jaipuria's case (supra) held that Section 41(h) of Specific Reliefs Act lays down that an injunction, which is a discretionary equitable relief, cannot be granted when an equally efficacious relief is obtainable in any other usual mode or proceeding.

I considered the submissions of learned counsel for the parties and perused the reasons given by the court below in the impugned order.

The judgment of this Court delivered in the case of Satyanarayan (supra) has no relevance in the facts and circumstances of the case because of the fact that the plaintiff has not challenged the quarry license or lease granted to the defendant no.7/petitioner. His entire case is that since his lease was granted 30 years back and he is in possession of the entire mining area for which the lease has been granted and by any deed executed in favour of the defendant no.7/petitioner, the petitioner cannot enter into the filed of plaintiff. In view of the above, even if the mining lease remains as it is, still the plaintiff's right accrued to him by lease granted to him by the mining department, cannot be affected is the claim of the plaintiff, therefore, the judgment of this Court delivered in Satyanarayan's case (supra), which was in relation to renewal of lease and its refusal, has no application to the present facts and circumstances of the case.

The judgment of the Hon'ble Supreme Court delivered in the case of Suresh Chandra Jaipuria

(supra) is also of no help because the respondent failed to show any efficacious alternate remedy than the suit and, therefore, the trial court was right in holding that the suit is triable by the civil court.

In view of the above, this revision petition is partly allowed, the order of the trial court dated 21.12.2006 is set aside and it is held that the plaintiff's suit, though is not liable to be dismissed or is not liable to be rejected on the grounds mentioned in the petitioner's application but for want of territorial jurisdiction of the court, it is ordered that the plaint be returned to the plaintiff for presentation in the proper Court. The plaintiff shall be entitled to withdraw the plaint within a period of one month from today for presentation in the Court.

The trial court shall fix the date of appearance of both the parties in the transferee court.

(PRAKASH TATIA), J.

S.Phophaliya


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