NANALAL ARJUN Vs. STATE OF ORISSA

JUDGEMENT

(1.) The Petitioner has filed this Writ Petition under Article 227 of the Constitution of India challenging the Order Dated 11.7.2008 passed by the Learned District Judge, Khurda in FAO No. 104 of 2007 confirming the Order Dated 12.10.2007 passed by the Learned Civil Judge (Senior Division), Bhubaneswar in Interim Application No. 442 of 2007 arising out of Civil Suit No. 550 of 2007.

(2.) THE facts as unfolded in the petition are as follows: One Arjun Lodha & his sons constituted a partnership firm on 4.11.1953 in the name & style of 'M/s. Arjun Lodha'. They carry on partnership business including the business of mining. The firm applied for mining lease (iron ore) in respect of Schedule -A area. Accordingly, a lease deed was executed between the State of Orissa & the partnership firm. The partnership firm was again reconstituted on 21..10;1982.Theree.fter, as there arose some dispute between the partners of the firm, the same was referred to Arbitrator as per Clause 24 of the reconstituted partnership deed. The Arbitrator passed the award on 10th August, 1989 directing the present Petitioner Nanalal Arjun to retire from the partnership firm after allocation of certain properties. The present Petitioner & Opposite Party Nos. 5 & 6 are the sons of Arjun Lodha. The award of the Arbitrator was challenged before the Learned Subordinate Judge, Chainbasa who by his Order Dated 5.5.1992 set aside the same. Against the said order, Opposite Parties 5 & 6 carried an appeal to the High Court of Jharkhand at Ranchi which by its Order Dated 27.2.1998 allowed the appeal, set aside the order of the Learned Subordinate Judge, Chainbasa & remanded the matter for fresh disposal. On remand, the Learned Subordinate Judge again set aside the award on 12.7.2005. The said order is under challenge before the High Court of Jharkhand & pending for disposal. The Petitioner claimed that he continues to be the partner of Arjun Lodha Partnership Firm & it cannot be construed that he is a retired partner. Opposite Parties 5 & 6 in order to deprive the Petitioner of his legal right, forcibly did not allow him to participate in the mining business & exercise his lease hold right. Therefore, he made a representation on 23.11.2006 to the Deputy Director of Mines, Joda, Keonjhar for consideration of his grievance. After hearing both the sides, the Deputy Director of Mines on 3.2.2007 directed Opposite Parties 5 & 6 to stop mining operation. Challenging the said order, Opposite Parties 5 & 6 filed W.P.(C) No. 1542 of 2007 before this Court & the said Writ Petition was disposed of on 12.2.2007 directing Opposite Party No. 3 to consider effectively the controversy between the parties afresh. The Deputy Director of Mines after hearing the parties on 6.3 2007 came to a conclusion that Opposite Parties 5 & 6 were recognized by the Government to be operating the mining lease & allowed them to continue with the mining operation. Challenging the said order, the Petitioner filed W.P.(C) No. 3411 of 2007 which was disposed of on 25.7.2007 with the observation that the Petitioner may file a civil suit as the disputes involved were questions of fact & required to be proved. Thereafter, the Petitioner filed Civil Suit No. 550 of 2007 along with Interim Application No. 442 of 2007 before the leaned Civil Judge (Senior Division), Bhubaneswar. Opposite Parties 5 & 6 appeared in the suit & filed their objection. After hearing both the sides, the Learned Civil Judge (Senior Division), Bhubaneswar by his Order Dated 12.10.2007 rejected Interim Application No. 442 of 2007 holding that prima facie case was in favour of Opposite Parties 5 & 6 & they would suffer irreparable loss & injury if they would be injuncted as they were operating the mining lease in respect of Schedule A & B lands since 6.8.1996 till then; that balance of convenience was also in their favour as they were in possession of the mines & that the loss sustained by the Petitioner could be compensated as per the result of the suit. Being aggrieved by the said order, the Petitioner filed FAO No. 104 of 2007 before the Learned District Judge, Khurda who on 11.7.2008 confirmed the Order Dated 12.10.2007 passed by the Learned Civil Judge (Senior Division), Bhubaneswar. Challenging the said order of the Learned District Judge, the present Writ Petition has been filed.

(3.) LEARNED Counsel appearing for Opposite Parties 5 and 6 submitted that they are in possession of the mines, continuing with the partnership business and operating the mines. The Government of Orissa leased out the mines in their favour. Accordingly, the prima facie case is in their favour and the balance of convenience is also in their favour as they are in possession of the mines and operating the same since long. If they are restrained from operating the mines, they will sustain irreparable loss and injury. The Petitioner at no point of time was in possession of the mines or recognized by any authority. Therefore, the Learned Civil Judge (Senior Division), Bhubaneswar was right in rejecting the application of the Petitioner for injunction which has been confirmed by the Learned District Judge, Khurda.