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CA/1447/2010 1/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR DIRECTION No. 1447 of 2010
In
SPECIAL
CIVIL APPLICATION No. 13940 of 2009
=====================================
RUKHADBHAI
DANABHAI SOLANKI THROUGH POWER OF ATTORNEY - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=====================================
Appearance
:
MR AD OZA for Petitioner(s) :
1,
MR HK PATEL, AGP for Respondent(s) : 1,
None for
Respondent(s) : 2,
MR SUDHANSHU PATEL with MR AMAR D MITHANI for
Respondent(s) : 3,
=====================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 23/04/2010
ORAL
ORDER
1.0 This
Court had ordered to hear this application with the main matter on
9th March 2010. In view of the fact that the Court is not
able to take up final hearing of the main matter, this matter is
taken up for consideration.
2.0 In
this Civil Application, the applicant original petitioner has
prayed as under:
8
(B). Direct the respondents to permit the applicant to sell the
proceeds / building limestone excavated and to be excavated in
pursuance of the order dated 01.01.2010 passed by this Hon’ble Court;
pending admission, hearing and final disposal of the main petition.
3.0 The
learned
advocate for the petitioner submitted that the petitioner is
doing the business for last so many years and the respondent no. 3
knew about the same and therefore, at this stage, respondent no. 3
cannot be heard of saying that the petitioner has no right whatsoever
to excavate from the land in question.
3.1 The
learned advocate Mr. Sudhanshu Patel for respondent no. 3 submitted
that under the Rules, it is not permissible for the petitioner to
continue the excavation activity and therefore, in the event, the
Court comes to the conclusion that the petitioner is not entitled to
excavate, the amount of the material excavated minus the expenses for
the excavation cannot be allowed to be appropriated by the
petitioner. He, therefore, submitted that the Court has to strike
the balance between the interest of the Government on one hand and
that of the petitioner on the other.
4.0 In
view of the aforesaid submissions made of the learned advocates for
the contesting parties, it is deemed fit that the petitioner be
permitted to sell the excavated material and which may be excavated
in pursuance to the order dated 1st January 2010
hereafter, on certain conditions. The conditions shall be as under:
i) The
petitioner shall tender true and correct accounts of the sale of the
excavated material with the department every month starting from 1st
May 2010 and on first day of every month.
ii) For
the entire sale proceeds which may be effected pursuant to this
order, an undertaking shall be filed before this Court with a copy to
the other side and with a copy to the department, undertaking that,
in the event, the Court passes any adverse order against the
petitioner, the petitioner will reimburse that amount to the
Government as per the order of this Court. The undertaking be filed
on or before 30th April 2010.
iii) The
petitioner shall furnish the Bank Guarantee for 25% of amount of the
sale proceeds at the end of every month for the sale which may take
place during the month. The Bank Guarantee be filed every month
before 10th day of the month for the sale proceeds of the
preceding month. It is further directed that the Bank Guarantee
shall be kept alive till the final disposal by this Court.
4.1 With
these directions, the Civil Application is disposed of. Direct
service is permitted.
[
Ravi R. Tripathi, J. ]
hiren
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