Rajasthan High Court - Jodhpur
Azure Power Forty Three Pvt. Ltd vs Javed Knan on 25 August, 2021
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision Petition No. 35/2021
Azure Power Forty Three Pvt. Ltd., Fifth Floor Southern Park, D Ii
Saketh Palace, New Delhi, Sight Office, Village Daudsar, Tehsil
And District Bikaner
----Petitioner
Versus
Javed Knan S/o Khaleel Ahemad, Aged About 26 Years, Ward No.
16, Jat Colony, Gharsana, District Sriganganagar
----Respondent
For Petitioner(s) : Mr. R.K. Thanvi, Sr. Adv. assisted by
Mr. Narendra Thanvi.
Mr. Virendra Acharya.
For Respondent(s) : Mr. Muktesh Maheshwari.
HON'BLE MR. JUSTICE ARUN BHANSALI
Judgment
25/08/2021
This revision petition is directed against the order dated
08.04.2021 passed by the Additional District Judge No.4, Bikaner,
whereby the application filed by the petitioner under Order VII,
Rule 11 CPC seeking rejection of the plaint has been dismissed.
The suit was filed by the respondent-plaintiff under Section 6
of the Specific Relief Act, 1963 ('the Act') for possession &
permanent injunction, inter-alia, with the submissions that plaintiff
has 1/6th share in the land ad measuring 18.94 Htrs. situated in
Village Daudsar, Patwar Halka, Jamsar comprised in Khasara Nos.
215, 421, 458, 709/420, 710/417, 711/422 and 792/459. It was
claimed that on the said land, the plaintiff had his possession and
cultivation. It was alleged that defendant company is engaged in
developing solar project at Village Daudsar and other places and
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around the land of the plaintiff it is executing the work of solar
project, resulting in lands getting converted into non-agriculture
from agriculture.
It was alleged that the defendant on 18.03.2021 has taken
possession of the land; the plaintiff is deprived of cultivating the
land, putting it to use and developing the same. Indications were
made that in the land in question, Akram, Jalaludin, Noor Jahan,
Baby, Barkat Khan and Hazi Khan have share, which was joint and
undivided, however, the defendant company without partition
among the land holders by metes and bounds took possession
belonging to Akram, Jalaludin, Noor Jahan, Baby, Barkat Khan and
Hazi Khan and has started work of constructing solar plant. It was
also alleged that the defendant was working against the Rules and
Rajasthan Solar Energy Policy, 2020. The plaintiff was entitled to
return back of his land immediately. It was also indicated that
plaintiff is entitled to permanent injunction against the defendant
not to act against the parameters for protection of environment
and without taking other security measures. It was indicated that
the suit has been filed within limitation as possession was taken
on 18.03.2021 and within six months the suit has been filed.
The petitioner on being served filed an application under
Order VII, Rule 11 r/w Section 151 CPC, inter-alia, with the
submissions that the suit was not maintainable as the suit land
was agricultural and merely because the same has been leased
out to a solar company, the nature of agriculture land does not
change. The suit was barred under the provisions of Section 207
of the Rajasthan Tenancy Act, 1955 ('the Tenancy Act') as only the
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revenue courts have the jurisdiction to grant relief in relation to an
agricultural land.
Further submissions were made that even under the
provisions of Section 41(h) of the Act, the suit was barred as the
plaintiff had an alternative remedy and on that count also, the
plaint was liable to be rejected.
Though no reply to the application was filed, the application
was contested by the plaintiff.
After hearing the parties, the trial court by its impugned
order, noted the contentions and the judgments cited by both the
parties and while rejecting the application observed as under :-
"8- oknh us izfroknh ds fo:) okn ckcr izkIr djus dCtk
vUrxZr /kkjk 6 Lisf'kfQd ijQksjesal vkW,Q ,DV ,oa fpj&LFkk;h
fu"ks/kkKk gsrq is'k fd;k gSA fookfnr lEifÙk d`f"k Hkwfe gS ;k ugha]
vFkok fookfnr lEifÙk d`f"k Hkwfe ls lksyj IykUV iz;kstu esa
dUoVZ gks pqdh gS vFkok ugha] ;g fof/k ,oa rF; dk feJr iz'u
gSaA izfroknh }kjk vius izkFkZuk i= esa gLrxr okn dks lquus dh
Jo.kkf/kdkfjrk o {ks=kf/kdkfjrk ds ckcr mBkbZ xbZ gS] mDr
vkifÙk vius tokcnkok esa ysus ds fy, LorU= gS rFkk budk
vo/kkj.k fook|d fojfpr dj mHk; i{k dh lk{; ds ckn fd;k
tkuk laHko gSA vHkh okn i= o izkFkZuk i= esa izfroknh dh vksj ls
tokc nkok @ izkFkZuk i= is'k ugha fd;k x;k gSA
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10- vr% izfroknh dh vksj ls izLrqr mDr izkFkZuk i= vHkh bl izØe ij bl :i esa fuLrkfjr fd;k tkdj [kkfjt fd;k tkrk gS izfroknh }kjk {ks=kf/kdkj o Jo.kkf/kdkj o okn&dkj.k ds lEcU/k esa yh xbZ vkifÙk;ksa ds ckcr fook|d fojfpr dj ewy okn esa l{ke lk{; ds mijkUr gh bu fcUnqvksa dks r; fd;k tk;sxkA"
Feeling aggrieved, the present revision petition has been filed.
Learned counsel for the petitioner made vehement submissions that the trial court fell in error in rejecting the application under Order VII, Rule 11 CPC by holding that the issue as to whether the land in question is agricultural or not and whether the same has been converted for the purpose of solar (Downloaded on 25/08/2021 at 09:11:05 PM) (4 of 8) [CR-35/2021] plant, was a mixed question of law & fact and in cursorily rejecting the application.
Submissions were made that from the bare reading of the plaint, it is apparent that the suit land is an agriculture land as the plaintiff has repeatedly claimed the same to be agriculture land and has assumed that as the same has been leased out for the purpose of setting up of solar plant, the suit was maintainable before the civil court. It was emphasized that the provisions of Section 187B of the Tenancy Act are pari materia with provisions of Section 6 of the Act and the relief of injunction is also available under Section 188 of the said Act and as such, under the provisions of Section 207 of the Tenancy Act, the suit is ex-facie barred.
It was further submitted that merely because the land in question has been put to use for solar plant, the nature of land shall not get converted.
Reference was made to Rajasthan Land Revenue (Conversion of agricultural land for non-agricultural purposes in rural areas) (Second Amendment) Rules, 2014 ('the Rules of 2014'), whereby new Rule 6B was inserted providing for use of khatedari land for Solar Farm / Solar Plant / Solar Power Plant, Wind farm / Wind Power Plant, wherein it was stipulated that no conversion shall be required for use of khatedari land for the said purposes and therefore, irrespective of the use to which the land has been put, the nature of land remains agriculture and therefore, the suit is ex-facie barred under Section 207 of the Act.
Further submissions were made that merely because an agriculture land has been put to non-agriculture purposes, the (Downloaded on 25/08/2021 at 09:11:05 PM) (5 of 8) [CR-35/2021] same would not change its character and the revenue court would continue to have jurisdiction over the said land. It was prayed that as the trial court has totally ignored the law on the subject and has cursorily rejected the application, the revision petition deserves to be allowed. The order impugned deserves to be set- aside and the plaint be rejected as barred by law.
Further reliance was placed on judgments in Smt. Premi Devi v. Deva Ram : (2009) 1 DNJ (Raj.) 410, Lal Singh Jhala v. Panna Lal : (2016) 3 DNJ (Raj.) 1461, and Hastimal & Ors. v. Pushpa Devi : (2020) 4 DNJ (Raj.) 1108.
Learned counsel for the respondent-plaintiff vehemently opposed the submissions. It was submitted that for the purpose of determining whether the suit was barred under the provisions of Section 207 of the Tenancy Act, it is necessary to look into the nature and uses of the suit land.
With reference to the averments made in the plaint, it was indicated that the plaintiff has specifically averred that the entire land is being put to use as solar plant and once it is being put to use other than agriculture, the defendants cannot claim that the suit was barred by treating the land in question as agriculture land. It was sought to be emphasized that merely because by the Rules of 2014, the requirement to get the land converted for the purpose of solar power plant etc. has been done away with, it cannot be denied that the land has been put to non-agriculture uses and therefore, the provisions of Section 207 of the Tenancy Act would have no application and as such, the application was liable to be rejected.
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(6 of 8) [CR-35/2021] Submissions were made that in the case of present nature, it is always a mixed question of law & fact as to whether the land in question is agriculture / continuous to be agriculture and therefore, the trial court was justified in rejecting the application and deferring the matter till evidence is led by the parties.
Further submissions were made that as this Court while deciding the appeal arising out of the order passed by the trial court in the same suit under Order XXXIX, Rule 1 & 2 CPC has expected the trial court to proceed with the matter with utmost expedition, once such a direction has been issued, there is no necessity to decide the said aspect by this Court. It was prayed that the revision petition be dismissed.
Reliance was placed on Harpal Singh v. Ashok Kumar & Anr. : (2018) 11 SCC 113 and Bal Kishan & Anr. v. Manoj Kumar & Ors. : 2014(4) DNJ (Raj.) 1461.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record along with the record of the trial court.
The facts are not in dispute that the plaintiff in his plant has repeatedly indicated that the land in question is agricultural, however, in the same breath, he has repeatedly indicated that as the land is being used for solar project, the nature of land stands changed.
The trial court by its impugned order though noticed all the contentions raised by the parties, chose not to deal with any of the contentions and in a wholly cursory manner passed the order impugned by indicating that the said aspect was a mixed question (Downloaded on 25/08/2021 at 09:11:05 PM) (7 of 8) [CR-35/2021] of law & fact, as is apparent from the determination quoted herein-before.
Once a plea is raised under Order VII, Rule 11 CPC and specially under Order VII, Rule 11(d) CPC claiming that the suit was barred by law, it is the minimum requirement for the trial court to determine the said issue by taking into consideration the averments made in the plaint and the provisions under which plaint is indicated as barred. In case, the court comes to the conclusion that the issue raised is a mixed question of law & fact, merely indicating the said conclusion is not sufficient, the court has to indicate the reasons for reaching to such a conclusion, which aspect is totally absent in the impugned order. The court has simply indicated the issue and has drawn the conclusion that the same was a mixed question of law & fact.
The submissions, which have been made before this Court with reference to the Rules of 2014 as well as the reliance, which has been placed by learned counsel for the respondent on the judgment in the case of Harpal Singh (supra) in contrast with the judgment of this Court in the case of Lal Singh Jhala (supra), which judgments deal with the position of law in terms of the legislation involved i.e. Delhi Land Reforms Act, 1954 and the Tenancy Act respectively, requires consideration besides the submissions already made before the trial court.
However, for lack of any determination by the trial court on the issues involved in the application and the fact that this Court while deciding the appeal arising between the same parties from an order passed under Order XXXIX, Rule 1 & 2 CPC, has required the trial court to proceed with the matter with utmost expedition, (Downloaded on 25/08/2021 at 09:11:05 PM) (8 of 8) [CR-35/2021] it would be in fitness of things that the matter is left open for the trial court to decide the aspect of suit being barred in the suit itself instead of either requiring the trial court to redecide the application or determining the issue in present revision petition at this stage without having the benefit of any fruitful determination by the trial court on the issue.
In view of the above discussion, the order impugned dated 08.04.2021 for lack of reasons is set-aside. The matter is remanded back to the trial court to redetermine the aspect of the suit being barred by law, keeping in view the observations made herein-before. It would be open for the trial court to do the same by framing a preliminary issue. It is reemphasized that the trial court shall proceed with the matter with utmost expedition.
The revision petition stands disposed of with the above directions.
The record of the trial court be sent back forthwith by the Registry.
(ARUN BHANSALI),J Rmathur/-
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