Gujarat High Court
Hirenkumar Valjibhai Bhagat (Patel) vs Adani Green Energy (M.P.) Limited on 2 April, 2024
NEUTRAL CITATION
C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5236 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HIRENKUMAR VALJIBHAI BHAGAT (PATEL) & ORS.
Versus
ADANI GREEN ENERGY (M.P.) LIMITED & ORS.
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Appearance:
MS POONAM M MAHETA(11265) for the Petitioner(s) No. 1,2,3
for the Respondent(s) No. 2,3,4
SHASHVATA U SHUKLA(8069) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 02/04/2024
ORAL JUDGMENT
1. The present petition is filed by the petitioner - original plaintiffs by challenging the impugned order dated 29.02.2024 passed in Misc. Civil Application No.42 Page 1 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined of 2023 by the Court of learned Principal District Judge, Kachchh, Bhuj, whereby the order of granting interim injunction, by allowing the application below Exh.5 in Regular Civil Suit No.21 of 2023 vide order dated 21.04.2023 passed of the Court of learned Principal Senior Civil Judge, Nakhatrana, was quashed and set aside by partly allowing the said application.
2. Brief facts of the case as per the case of the petitioners in this petition are as such that the present petitioners are the registered sale deed purchasers of the land bearing revenue survey No. 148 paiki 1 He-1-21-41 Sqr. Mtrs. of Mouje village Aamara, Taluka: Nakhatrana, District: Kutch (hereinafter referred as "the land in question" for short) and they have purchased the land in question by of registered sale deed being its index No. 39 of 2022 dated 07.01.2022, registered with the office of the Sub- Registrar, Nakhatrana. It is also the case of the present petitioners that the mutation entry recording the aforesaid registered sale transaction was mutated in the revenue record by of a mutation entry No. 1653 dated 07.01.2022 and the same was objected by the present respondent No.1 company namely Adani green Page 2 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined energy limited, however, by discarding the said objections, the competent authority was pleased to certify the same by way of order dated 05.03.2022. Since the respondent No.1 company and its office bearers/authorized persons have started further encroaching the land in question, which is undisputedly of the ownership of the present petitioners, the present petitioners have instituted Regular Civil Suit No. 21 of 2023 before the court of learned Principal Senior Civil Judge, Nakhatrana for declaration and permanent injunction along with an interim injunction application at Exhibit 5. It is further the case of the present petitioners that the original defendant No.1 i.e. the present opponent No. 1 defendant company had appeared and filed objections/return statement vide Exhibit 20 and the original defendant Nos.2 to 4 had also produced certain documentary evidence at Exhibit 23. It is stated that after hearing the learned advocates appearing for the respective parties, and after considering the fact that the present petitioners had proved the prima facie case and the balance of convenience is in favour of the present petitioners and by establishing the fact that the original defendant company and its office bearers have not only Page 3 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined encroached upon the land in question of the present petitioners but have also erected the Windmill, unauthorizedly by change of location of the survey number of the present petitioner and started using the land in question unauthorizedly, the learned court of principal senior civil judge Nakhatrana vide order dated 21.04.2023. It is further the case of the petitoners in this petition that being aggrieved and dissatisfied with the aforesaid interim injunction granted by the learned trial court, the original defendant No. 1 namely Adani Green Energy Limited had challenge the same and filed Misc. Civil Appeal No.42 of 2023 along with an application for delay condonation, before learned District And Sessions Court, Kutch at Bhuj. It is further the case of the petitoners in this petition that the court of learned principal District Judge, Kutch at Bhuj allowed the same vide order dated 29.02.2024, whereby the learned District Court had passed the order by quashing and setting aside the interim injunction granted below Exhibit 5 vide order dated 21.04.2023 by court of learned principal senior civil judge, Nakhatrana in Regular Civil Suit No. 21 of 2023. Hence, this petition has been preferred.
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3. Heard Mr. P.R. Abichandani, the learned counsel with Ms. Poonam Maheta, the learned counsel for the petitioners, Mr. Anshin H. Desai, the learned senior counsel with Mr. Shashvata U. Shukla, the learned counsel for the respondent No.1 and Mr. Shivam Dixit, the learned Assistant Government Pleader (AGP) for the respondent Nos.2 to 4 - State (D.I.L.R.) and also perused the records.
4.1 Mr. P.R. Abichandani, the learned counsel with Ms. Poonam Maheta, the learned counsel for the petitioners, has drawn my attention to the impugned order passed by both the courts below in application below Exh.5 in Regular Civil Suit No.21 of 2023 and in Misc. Civil Application No.42 of 2023. Furthermore, he has pointed out paragraph 5 of the order dated 29.02.2024 passed in Misc. Civil Application No.42 of 2023, whereby the learned AGP has, upon instructions, submitted that admittedly, there is overlapping, and as per the latest report of the DILP, the windmill, which has been erected by the appellant company (respondent No.1 herein) is on the land owned by the plaintiffs. Therefore, the learned Page 5 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined AGP has submitted before the lower appellate court to pass an appropriate order. In this context, he has referred to various documentary evidences by way of Village Form No.6 for entry no.1653, which is certified on 05.03.2022, and he has submitted that by way of a registered sale deed, he has purchased the land in question.
4.2 Furthermore, he has submitted that the impugned order passed by trial court is illegal, arbitrary, unlawful and contrary to the settled legal position and contrary to the reported and unreported judicial pronouncements by this court as well as by the Hon'ble Apex Court. Furthermore, he has submitted that the learned District Court had failed in considering the vital aspect that the land in question i.e. land bearing revenue survey No. 148 paiki 1 was belonging to the ownership and occupation of the private parties i.e. the present petitioners herein and the same is a private land. It needs to be submitted that the right to property is enshrined a constitutional right as defined under Article 300-A of the Constitution of India and the said valuable constitutional right was not only disturbed by the Page 6 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined original defendant No.1 company and its office bearers but also the same is hijacked by violating and erecting the Windmill on the private land that to, without any acquisition, authorization, permission and consent of the original owners - present petitioners or their predecessors in title and, therefore, the learned that District Court had conveniently ignored such vital aspects and, had mechanically and cryptically quashed and set aside the interim injunction order granted by the learned Civil Court, which was absolutely just, proper and in consonance with the provisions of Code of Civil Procedure and, therefore, the impugned order passed by the learned District Court dated 29.02.2024 is unsustainable in eye of law and is required to be quashed and set aside. Furthermore, he has submitted that on plain appreciation of the measurement sheet, prepared by the competent authority i.e. DILR, it is crystal clear that the original defendant No.1 company had got sanctioned the Windmill and its election on the land bearing revenue survey No. 147 and for the reasons best known to the original defendant No.1 company and its office bearers or the authorized persons, they have travelled to the land of the present petitioner i.e. the land in question namely Page 7 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined revenue survey No. 148 paiki 1 and, in unauthorized manner had constructed/directed the Windmill on the same land and now it is the case of the original defendant No. 1 company that since they have already erected and constructed/built the Windmill on the other land, there should be continued to occupy and use the same though it is up different land and is of the private ownership of the present petitioners. The said submission and argument itself is contrary to the settled legal principles and unconstitutional and is violative of the constitutional rights of the present petitioners and legal principles and hence, when the same was properly appreciated and considered by the learned civil court by allowing the interim injunction application at Exhibit 5 with the order dated 21.04.2023, the same should not to have been disturbed by the learned District Court by exercising the appellate jurisdiction. In view of such factual as well as legal position, the impugned order is passed by ignoring various legal as well as factual aspects and is absolutely erroneous, illegal, arbitrary and unsustainable in eye of law and the same is required to be quashed and set aside.
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NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined 4.3 Furthermore, he has submitted that the observations by the learned trail court in paragraph Nos.8 and 9 as well as in paragraph No.10 while considering in passing the order dated 21.04.2023 is noteworthy and just and proper. It is submitted that the said observations are based on the documentary evidences led and produced by the parties to the suit before the learned civil court, when the observations are based on the documentary evidences and after appreciating the same, discretionary order is passed, it is not open for the appellate court/forum to disturb by distorting the version, which is convenient and therefore also the learned District Court had committed manifestly are of law in passing the impugned order and therefore also the same is required to be quashed and set aside. Furthermore, he has submitted that the learned District Court had committed grave error in law and fact by observing in relying upon the proceedings of the Regular Civil Suit No.150 of 2019 preferred by one third party against defendant No. 1 company. It is stated that the learned civil court vide order dated 18.11.2012 has declined the Exhibit 5 application of the Regular Civil Suit No.150 of 2019 on the principal ground that the original plaintiff of that Page 9 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined civil suit had failed to establish that he is possessing any legal acquisition of the rights of a registered document. Simply because one third party had failed in obtaining interim injunction application in some different civil suits/proceeding, it is not open for the learned District Court to observe and rely on such findings and observations that simply because some other 3rd party had failed in obtaining the interim injunction application, the present petitioners should also face same fate. Furthermore, he has submitted that it is undisputed and proved the fact that the original defendant No. 1 company had erected/constructed the Windmill on the land bearing revenue survey No. 148 paiki 1 i.e. land belonging of the registered ownership of the present petitioners instead of land bearing revenue survey No.
147. Considering this undisputed fact, the original defendant No. 1 company had instituted Regular Civil Suit No. 15 of 2022 before the court of learned Principal Senior Civil Judge, Nakhatrana and the same is pending for its adjudication. It is submitted that in background of the same fact also, the learned District Court ought to have restrained itself by interfering with the impugned order challenged before the District Court i.e. order dated Page 10 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined 21.04.2023, passed by the Learned Civil Court, Nakhatrana. It is stated that in backdrop of the aforesaid factual as well as legal aspects also, the impugned order passed by the learned District Court is illegal, arbitrary and is required to be quashed and set aside. Furthermore, he has submitted that in the aforesaid circumstances, the observation by the learned District Court with regard to the fact that there is overlapping of the land in question of the present petitioners i.e. land bearing revenue survey No. 148 paiki 1 (which is of the registered sale deed ownership of the present petitioners) and land bearing revenue survey No. 147 (which is originally granted to the original defendant No. 1 company for a direction of the Windmill). It is stated that simply because mentioning that there is overlapping of the lands in question, would not entitle the original defendant No. 1 to continue the illegal occupation and encroachment of the private land i.e. the land bearing revenue survey No. 148 paiki 1. It may be a mistake or it may be and in intention on part of the original defendant company however on both circumstances, it is undisputed fact which is emerged on record and prima facie proved before the learned civil Page 11 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined court, after due appreciation of the consideration of prima facie evidences and measurement sheet prepared by the government authorities, that the Windmill is erected and constructed on the land bearing revenue survey No. 148 paiki 1. When it is prima facie proved and emerged on record, it is not open for the learned appellate court to really appreciate the same without leading proper evidences and in such view of the matter also, the learned District Court had committed serious error in quashing and setting aside the interim injunction order passed by the learned civil court dated 21.04.2023 and therefore also the impugned order passed by the learned District Court is erroneous and unsustainable and is required to be quashed and set aside. Furthermore, he has submitted that if the impugned order is sustained, which is passed by the learned District Court and the original defendant company is continued to occupy and use the land in question i.e. land bearing revenue survey No. 148 paiki 1, the present petitioners would not be in a position to enter and occupy the land in question, which is undisputedly of the private ownership of the present petitioners, who have purchased the land in question by Page 12 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined of register sale deed. In other words, without subjecting challenge to the registered sale deed executed in of the present petitioners, by execution and implementation of the order passed by the learned District Court which is impugned in the present petition, the registered sale deed would be nullified and such are brave legal consequences would be emerged, which is done by the stroke of pen by the learned District Court. It is submitted that the impugned order is not only erroneous but also beyond the scope of the appellate powers and provisions of the CPC and contrary to the constitutional rights i.e. right to property which is enshrined by the Constitution of India to the present petitioners and therefore also the impugned order is erroneous and is required to be quashed and set aside.
4.4 Furthermore, he has submitted that the learned District Court had committed serious error of law in interfering in quashing and setting aside the interim injunction order passed by the learned trial court, by observing that neither the plaintiff's law the defendants are at fault but because of some technical hindrances, DILR could not give exact location for direction of the Page 13 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined wind. It is stated that if there is a fault of the DILR or any state authorities, the proper remedy lies to agitate the issue and resolve it with the state authorities only. Simply because some 3rd party has committed an error, the land in question i.e. the private land of the present petitioners cannot be encroached upon and such encroachment cannot be continued under the guise of the order of the learned District Court. The observations made by the learned District Court are contrary to the settled legal principles. Furthermore, he has submitted that the said observations are believed then in that case, the original defendant No. 1 company needs to Institute the civil proceedings or any other proceedings which are available under law against the state authorities and may seek compensation, if available under law. It is submitted that the Regular Civil Suit No. 15 of 2022 is already instituted by the original defendant No. 1 the Company opponent No. 1 herein. That, the correct course for the original defendant No. 1 company is to pursue and get remedial measures including compensation against the state authorities more particularly DILR and collector, if available under law by pursuing the aforesaid Regular Civil Suit No. 15 of 2022 or any other separate Page 14 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined remedy as may be advised. It is submitted that undisputedly, for the no fault of the present petitioners or the predecessor in title to the present petitioners, the encroachment by the original defendant No. 1 company on the land i.e. the private land of the present petitioners cannot be continued and original defendant No. 1 company cannot seek any relief or entitled to get the same, by citing fault on part of the state authorities that they have not located the land properly for the election of the Windmill. Furthermore, he has submitted that the court of law are meant for protecting the liberty and valuable rights enshrined by the Constitution and in the case on hand, for the reasons best known to the learned district court, the valuable right to property has been compromised by quashing and setting aside the Exhibit 5 order granted by the learned trial court. It is stated that when on record it is emerged that the land in question i.e. the land bearing revenue survey No. 148 paiki 1 (private land of the present petitioners) has been encroached by the defendant No. 1 company, have the court of law would balance the committee by continuing such encroachment and illegal act, that too by disturbing and interfering with the just, legal and proper order Page 15 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined passed by the learned trial court after appreciating the records and documents and evidences. Therefore also the impugned order is unsustainable and is required to be quashed and set aside. Furthermore, he has submitted that the learned District Court had manifestly committed error by presuming and observing that the present petitioners plaintiffs have taken a calculated risk of purchasing the disputed land. It is not open for the court of law to have conjectures and surmises. The learned District Court cannot presume that the present petitioners are the purchasers of the disputed property. On the contrary, the present petitioner could know the fact that the Windmill is existing and elected on the land in question, while the original defendant company had objected the certification of the mutation entry mutated on the basis of the registered sale transaction of the present petitioners. The demarcation of the land in question were existing since the year 1960 and hiding behind the DILR and other authorities, the original defendant No. 1 company had directed the Windmill on the private land which is of the ownership of the present petitioners and/or predecessor in title to the present petitioners. On plain appreciation of the Page 16 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined observations made by the learned District Court in paragraph No. 7.1, it is crystal clear that the learned District Court has seriously prejudiced, and the observations made which are contrary to the record and evidence. Furthermore, he has submitted that the learned district court was misdirected and mislead by the original defendant No. 1 company by believing that there is overlapping. It is not the case of overlapping it is pure case of encroachment by the private defendant No. 1 company and it appears that to continue such illegal encroachment, the private dependent No. 1 company had tried to put a case by getting prepared the different maps that there is a case of overlapping. Even in case of overlapping, it is absolutely emerged on record that there is encroachment and there is change of location by the defendant company and the Windmill which was to be erected and built on land bearing revenue survey No. 147, has been conveniently built and elected in the private lands of the present petitioner i.e. land bearing revenue survey No. 148 paiki 1 and therefore also there is a gross error of law committed by the learned district court by passing the impugned order. Furthermore, he has submitted that if the impugned order passed by the Page 17 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined learned district court is sustained and maintained further, it will create serious prejudice to the present petitioners valuable right to property. It is submitted that learned trial court has framed the issues in the present petitioners are ready and willing to co-operate with the trial and would abide by the direction of the learned district court for completion of the trial at the earliest and/or within the stipulated time period. The conduct of the defendant No. 1 company is absolutely suggestive of the fact that they are adamant and willing to continue the encroachment on the land which is never allotted to them i.e. land bearing revenue survey No.148 paiki 1, which is undisputedly a private land of the present petitioners and without any acquisition, consent of the present petitioners being original owners or predecessor in title to the present petitioners, such a grave illegality cannot and should not be continued under the guise of the learned district court's order. 4.5 Furthermore, he has submitted that simply because there is some protection as per the provisions of Indian Telegraph Act and the original defendant No. 1 company is involved in generation of the electricity through Page 18 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined windmill, they cannot be permitted to encroach upon the private land of the ownership of the present petitioners and further continue such encroachment under the guise of the court's order. If the observations of the learned District Court are believed to be true, no private lands would be safe and by citing any technical default, the original defendant No. 1 company would select any parcel of land and encroach upon the same by citing technicalities and therefore also when the present petitioners original plaintiffs have proved the prima facie case and balance of convenience tilted in favour of the present petitioners, it is not open for the learned District Court to interfere with the interim injunction order granted by the learned trial court. And therefore, also the impugned order is erroneous, unsustainable, illegal, arbitrary and is required to be quashed and set aside. 4.6 Furthermore, he has drawn my attention to the sketches, which is provided for perusal of this Court as well as paper-book, which is provided by the petitioners for ready reference. By referring to the various documents, he has submitted that from the document, it can prima facie be established that the windmill is Page 19 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined actually erected on the premises of the petitioners. There is specific reference of Survey No.148, which belongs to plaintiff and there is no reference that such documents is regarding Survey No.147, which is claimed to be allotted to the respondent No.1. Furthermore, he has relied on the judgment of this Court in the case of Rukhiben vs. Kriit Kumar Kantilal Patel reported in 1997 (3) GLR 2383, whereby the Court has in paragraph Nos.3 & 4 has observed that the person, who has no vestige of title over the land, is not entitled to an order of injunction against the lawful original owner of the property and, therefore, he has submitted that the petitioners are admittedly undisputed owner of the land in question of Survey No.148 by way of registered sale deed, and his rights are guaranteed under Article 300-A of the Constitution is also violated. Mr. P.R. Abichandani, the learned counsel has submitted that therefore also, the impugned order passed by the lower appellate court is erroneous, improper and is required to be quashed and set aside by restoring the order passed by the trail court. Hence, he has prayed to allow the present petition.
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NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined 5.1 Per contra, Mr. Anshin H. Desai, the learned senior counsel, with Mr. Shashvata U. Shukla, the learned counsel for respondent No.1, has drawn my attention to the various contentions raised by the learned counsel for the petitioners, as well as the findings given by the lower appellate court in paragraphs 6 and 7 of the impugned judgment. He has submitted that in the judgment dated 29.02.2024, in Misc. Civil Application No.42 of 2023, in paragraph 5, the lower appellate court has recorded the submissions made at the bar by learned AGP, which is now on perusal found contrary to the pleadings of the parties and also not in consonance with other documentary evidence produced on record. 5.2 He has placed reliance upon the written statement filed by defendant Nos. 2 to 4, whereby in paragraph - the State Government has specifically contended that defendant No.4 has, after making necessary panchnama, passed the order as per the Policy and Rules of the Government in favor of defendant No.1 (respondent No.2 herein) by allotting the land of Survey No.147, Hector 1- 00-000-RA; the Government Kharaba Land for industrial purpose. The said land was measured by the DILR at Page 21 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined the relevant point of time before allotment of the land, and the other authorities; Assistant Collector and other relevant Authorities have given their opinion and subsequently, the permission is granted. Accordingly, the possession is handed over by Circle Officer, Nakhatrana, on 02.03.2019, of the Government Waste (Kharaba) Land. Furthermore, he has submitted that thereafter, the windmill is erected.
5.3 By referring to the document produced on record by the present petitioners, he has submitted that, looking at the order passed by the Collector regarding the allotment of land, it is specifically for various locations, and the subject matter of land of Survey No.147 is allotted. By pointing out the said order, wherein a sketch is also annexed, he has submitted that from the sketch, it clearly transpires that the windmill is erected on the land of Survey No.147 as per the record of the State Government, which is produced along with the order of allotment of land on lease.
5.4 Furthermore, he, by referring to various documents including the written statement filed by respondent No.2, has submitted that the land of the present petitioners is Page 22 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined much farther away, about one and a half kilometers from the windmill erected by respondent No.1 company, which is allotted pursuant to the order passed by the Government, and more particularly, erected much prior to the purchase done by the present petitioners. Furthermore, he has submitted that the petitioners purchased the land in the year 2021, and at that point in time, the erection of the windmill was already done, and the windmill was in existence. Therefore, in any case, the petitioners purchased the land from the erstwhile owner, whereby the windmill was already erected on the land of Survey No.147 by the present respondent No.1. Subsequent to that, the present petitioners - original plaintiffs have filed the present suit either under the wrong impression or with some ulterior motive to harass respondent No.1 company. Therefore, the lower appellate court has rightly passed the order by considering that all these disputes can be considered by way of a full-fledged trial, and the plaintiffs have failed to establish the ingredients about the irreparable loss and balance of convenience in their favour. Therefore, the lower appellate court has rightly interfered with the impugned order passed by the trial court, which is Page 23 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined passed on the wrong basis.
5.5 Furthermore, he has submitted that, with a view to balance the equity, the lower appellate court has also directed respondent No.1 company to deposit Rs.15,000/- before the trial court, and the proceeding of the suit is also directed to be expedited within six months. Therefore, it cannot be said that the order passed by the lower appellate court is erroneous, improper, or without any appreciation of materials available on the record. On the contrary, the lower appellate court has corrected the mistake committed by the trial court and also by striking a balance of convenience of the rights of the parties by giving direction in the impugned order. Hence, he has submitted that in view of Sections 20A, 41(ha) of the Specific Relief Act, the lower appellate court has rightly exercised its discretion in favour of the present respondent No.1 company by interfering with the impugned order passed by the trial court. While exercising power under Order XLIII Rule 1 of the C.P.C., the lower appellate court has the power to correct the mistake committed by the trial court in passing such an order. He has relied on the judgment of the Hon'ble Apex Court in the case of N.G. Projects Ltd. vs. Vinor Page 24 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined Kumar Jain and Others reported in (2022) 6 SCC 127; more specifically, paragraphs 19 and onwards are relevant. In view of the above, he has submitted that there is no reason to interfere as this Court has limited jurisdiction under Article 227 of the Constitution of India, as the learned lower appellate court has not committed any error, and there is no illegality, infirmity, or perversity in the findings of the lower appellate court. Hence, he has prayed to dismiss the present petition.
6. Mr. Shivam Dixit, the learned Assistant Government Pleader (AGP) for the respondent Nos.2 to 4 - State (D.I.L.R.), has submitted that the impugned order passed by the lower appellate court is just and proper, and no interference is required to be called for by this Court. 7.1 I have considered the rival submissions made at the bar by the respective parties. I have also considered the provisions of Sections 20A and Section 41(ha) of the Specific Relief Act, as under:
"20A. Special provisions for contract relating to infrastructure project.--(1) No injunction shall be granted by a court in a suit under this Act involving a contract relating to an infrastructure project specified in the Page 25 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined Schedule, where granting injunction would cause impediment or delay in the progress or completion of such infrastructure project.
Explanation.--For the purposes of this section, section 20B and clause (ha) of section 41, the expression "infrastructure project" means the category of projects and infrastructure Sub-Sectors specified in the Schedule. (2) The Central Government may, depending upon the requirement for development of infrastructure projects, and if it considers necessary or expedient to do so, by notification in the Official Gazette, amend the Schedule relating to any Category of projects or Infrastructure Sub-Sectors. (3) Every notification issued under this Act by the Central Government shall be laid, as soon as may be after it is issued, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the notification or both Houses agree that the notification should not be made, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that notification.
41(ha) if it would impede or delay the progress or completion of any infrastructure project or interfere with the Page 26 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined continued provision of relevant facility related thereto or services being the subject matter of such project.
(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to be the assistance of the court;"
7.2 I have also considered the provisions of Order XXXIX Rules 1 & 2 of the C.P.C., as under:
"1. Cases in which temporary injunction may be granted.-- Where in any suit it is proved by affidavit or otherwise--
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [defrauding] his creditors,
(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders.Page 27 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024
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2. Injunction to restrain repetition or continuance of breach.
(i) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.
(2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit."
7.3 I have also considered the provisions of Order XLIII Rules 1 of the C.P.C., as under:
"1. Appeal from orders.--An appeal shall lie from the following orders under the provisions of section 104, namely: --
(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court [except where the procedure specified in rule 10A of Order VII has been followed];
* * * * *
(c) an order under rule 9 of order IX rejecting an Page 28 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;
* * * * *
(f) an order under rule 21 of Order XI; * * * * *
(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;
(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale; [ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable;
(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
(l) an order under rule 10 of Order XXII giving or refusing to give leave;
* * * * *
(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
[(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person;] * * * * *
(p) orders in interpleader-suits under rule 3, rule 4 or rule Page 29 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined 6 of Order XXXV;
(q) an order under rule 2, rule 3 or rule 6 of order (XXVIII);
(r) an order under rule 1, rule 2 [rule 2A], rule 4 or rule 10 of Order XXXIX;
(s) an order under rule 1, or rule 4 of Order XL;
(t) an order of refusal under rule 19 of Order XLI to re- admit, or under rule 21 of Order XLI to re-hear, an appeal;
(u) an order under rule 23 [or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;
* * * * * (w) an order under rule 4 of Order XLVII granting an application for review."
7.4 I have also considered the scope of powers of this Court under Article 227 of the Constitution of India, as under:
"227. Power of superintendence over all courts by the High Court (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing provisions, the High Court may--
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for Page 30 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. (3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision or any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.
[Editorial comment-The Constitution (Forty- ourth Amendment) Act, 1978, repealed Article 19 (1) (f) and also took out Article 31(1) has been taken out of Part III and made a separate Article 300A in Chapter IV of Part XII. This amendment may have taken away the scope of speedy remedy under Article 32 for the violation of Right to Property because it is no more a Fundamental Right. Making it a legal right under the Constitution serves two purposes: Firstly, it gives emphasis to the value of socialism included in the preamble and secondly, in doing so, it conformed to the doctrine of basic structure of the Page 31 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined Constitution. Also Refer"
7.5 Considering the aforementioned provisions of the law, upon reviewing the decisions of both the courts below, I found that the lower appellate court has rightfully concluded that prima facie, a case must be established if the evidence presented in its support is to be accepted without further debate. In determining whether a prima facie case has been established, the pertinent consideration is whether all the evidence presented by the party is sufficiently compelling to lead to a conclusion, and whether that conclusion is the only one that can be drawn from the evidence. Mere existence of a prima facie case does not automatically entitle the petitioners to a temporary injunction. Instead, the petitioners must demonstrate to the Court that they will suffer irreparable harm if the sought relief is not granted, and that there are no other remedies available to protect themselves from the apprehended harm.
7.6 It is required to consider the fact of balance of convenience, which must be in favour of the petitioners.
In other words, the Court must be satisfied that the comparative mischief; hardship of inconvenience is likely Page 32 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined to be caused to the petitioners, and refusing the injunction will be grater than that, which is likely to be caused to the opposite party by granting injunction.
7.7 The trial court has referred to the judgment in the case of American Cynamid Co. vs. Ethicon Ltd. reported in 1975 (2) WLR 316, the relevant observations are as under:
"The object of the interlocutory injunction is to protest the plaintiffs against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favor at the trial; but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favor at the trial. The court must weigh one need against another and determine where the balance of convenience lies."
7.8 It also becomes apparent that the lower appellate court has appreciated that the windmill is erected on the plaintiff's property, rather than on revenue survey No. Page 33 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined 147 paiki of village Aamara, Taluka: Nakhatrana, District: Kutch. Despite the plaintiff's request to defendant No.1 to refrain from erecting the windmill, defendant No.1 proceeded with the construction on the suit property. Additionally, another suit, Regular Civil Suit No.150 of 2019, was filed by another individual, Bhupesh Hiralal Bhagat, regarding the same property, where the temporary injunction application was rejected. 7.9 The lower appellate court has also taken into account the statement made by the learned AGP at the bar, indicating overlapping in the measurement. Therefore, the actual position can be assessed and rectified once the record is clarified. After examining the claims of the parties, the Court concluded that the land in question, Survey No.148, belongs to the plaintiff, and defendant No.1 was allocated the land for the erection of the windmill in Survey No.147 paiki.
7.10 The Court has deduced that due to overlapping, it is likely that the windmill was constructed on the plaintiff's suit property. By referring to Section 20A of the Specific Relief Act, which allows Page 34 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined injunctions to be granted in infrastructure projects, and considering Section 41(ha) of the Specific Relief Act, the lower appellate court has concluded that the observation made by the trial court in its order is not in accordance with the law. The trial court has completely erred, and the lower appellate court has found the factual aspects in paragraphs 6 & 7 of Misc. Civil Appeal No.42 of 2023 as follows:
"6. I have heard Ld. Advocates for the parties and perused the record. There are certain undisputed facts, which are required to be noted here, which are as under.
(i) The windmill was completely erected in the year 2021 and the original plaintiffs were not the owners of the suit land when the windmill was completely erected i.e. in the year 2021. Plaintiffs became the absolute owner of the suit land in the year 2022 i.e. after the original owner of the suit land executed a registered sale-deed in favour of the original plaintiffs.
(ii) Regular Civil Suit No.150/2019 was preferred by the third party (neither by the plaintiffs nor the original owner of the suit) under the guise and pretext that he is the owner of the suit land and he has become the owner of the suit land on the basis of an agreement to sale. This agreement to sale is not on record.Page 35 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024
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(iii) The above referred Regular Civil Suit No.150/2019 was preferred by the so called owner of the suit land for declaration and permanent injunction and said suit was subsequently withdrawn by the said third party.
(iv) Before the erection of the windmill, the original owner of the land; third party who had preferred Regular Civil Suit No. 150/2019 and present plaintiffs were aware about the fact that appellant company is likely to erect windmill in the disputed suit land but no further legal action has been taken either by the original land owner; third party and present plaintiffs.
(v) The present Regular Civil Suit No.21/2023 was preferred by the plaintiffs in the year 2023 i.e. after the complete erection of the windmill.
(vi) As per the report of DILR, there is overlapping and as per the said report, the windmill has been erected in Survey No.148/Paiki 1 of Amara Village, Taluka Nakhatrana, which in the ownership and possession of the plaintiffs.
7. From the above referred undisputed facts, it becomes clear that neither plaintiffs nor the present appellant are at fault but because of some technical hindrances, DILR could not give the exact location for erection of the windmill to the appellant and only upon getting the green signal from the DILR, appellant company erected the windmill on the Page 36 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined place identified by the DILR in the year 2021, which ultimately turns out to be the suit land." 7.11 Furthermore, the lower appellate court after discussing the above aspects and after considering Section 41(ha) of the Specific Relief Act, has come to the conclusion that no injunction can be granted, which would impede or delay the process of completion of any infrastructure project or interfere with continued provision of relevant facility related thereto or services being subject matter of such project. Since "Energy" is specified as one of the categories of the infrastructure project, for which the provisions contained under Section 41(ha) are squarely applicable. Consequently, the lower appellate court has intervened in the challenged order by further balancing the equity. Consequently, it is directed to appellant company, respondent No.1 herein, to deposit an amount of Rs.15 lakhs, and the suit was also instructed to be expedited within a six-month time-frame. 7.12 There is no quarrel about the judgments cited at the bar that no injunction can be granted against the true owner of the property. In the facts and circumstances of the present case, it is also relevant to Page 37 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined refer the judgment of the Hon'ble Apex Court cited by the learned counsel for the respondent in the case of N.G. Projects Ltd. (supra), more specifically, paragraphs 19 to 26 are relevant, as under:
"19. The Specific Relief Act, 1963 was amended by Central Act 18 of 2018 when clause (ha) was inserted in Section 41 of the said Act to say:
"(ha) if it would impede or delay the progress or completion of any infrastructure project or interfere with the continued provision of relevant facility related thereto or services being the subject matter of such project."
20. Such amendment was in pursuance of the report submitted on 20th June 2016 of the Expert Committee. The report is as under:-
"The Expert Committee set on examining Specific Relief Act, 1963 submits its Report to Union Law & Justice Minister Recommends modifications for ensuring ease of doing business The Expert Committee set on examining the Specific Relief Act, 1963 today Submitted its Report To Union Law & Justice Minister Shri D.V.Sadananda Gowda here in New Delhi. In its report the committee has recommended modifications in the Specific Relief Act, 1963 for ensuring the ease of doing business. In the context of tremendous developments which have Page 38 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined taken place since 1963 and the present changed scenario involving contract based infrastructure developments, public private partnerships and other public projects, involving huge investments; and changes required in the present scheme of the Act so that specific performance is granted as a general rule and grant of compensation or damages for non-performance remains as an exception, the committee decided i. To change the approach, from damages being the rule and specific performance being the exception, to specific performance being the rule, and damages being the alternate remedy..
ii. To provide guidelines for reducing the discretion granted to Courts and tribunals while granting performance and injunctive reliefs.
iii. To introduce provisions for rights of third parties (other than for Government contracts).
iv. To consider addressing unconscionable contracts, unfair contracts, reciprocity in contracts etc., and implied terms. The committee observed that there is a need to classify diverse Public utility Contracts as a distinct class recognising the inherent public interest/importance to be addressed in the Act. Any public work must progress without interruption. This requires consideration whether a court's intervention in public works should be minimal. Smooth functioning of Public works projects can be effectively managed through a monitoring system and regulatory mechanism. The role of courts in this exercise is to interfere to the minimum extent so that public works projects will not be impeded or stalled."
21. Since the construction of road is an infrastructure Page 39 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined project and keeping in view the intent of the legislature that infrastructure projects should not be stayed, the High Court would have been well advised to hold its hand to stay the construction of the infrastructure project. Such provision should be kept in view even by the Writ Court while exercising its juris- diction under Article 226 of the Constitution of India.
22. The satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of expectations from the tenderers while evaluating the consequences of non-performance. In the tender in question, there were 15 bidders. Bids of 13 tenderers were found to be unresponsive i.e., not satisfying the tender conditions. The writ petitioner was one of them. It is not the case of the writ petitioner that action of the Technical Evaluation Committee was actuated by extraneous considerations or was malafide. Therefore, on the same set of facts, different conclusions can be arrived at in a bona- fide manner by the Technical Evaluation Committee. Since the view of the Technical Evaluation Committee was not to the liking of the writ petitioner, such decision does not warrant for interference in a grant of contract to a successful bidder.
23. In view of the above judgments of this Court, the Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the Page 40 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined present- day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary ex- pertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after com- plying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a malafide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek dam- ages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to addi- tional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work.
24. The State has paid over a sum of Rs.3,98,52,396/- to the appellant till date, though the stand of the appellant is that it had submitted bills of work of Rs.8.5 crores. The termination of contract would cause additional financial burden on the State and also deprive the amenity of road for a longer period. Learned counsel for the appellant has stated that it shall not claim escalation of costs for the period when the writ petition before the High Court was Page 41 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined pending and there was a stay granted.
25. In view thereof, we find that the action of the respondent in setting aside the letter of acceptance granted to the appellant suffers from manifest illegality and cannot be sustained. Consequently, the appeal is disposed of with a direction to the respondent State to allow the appellant to resume and complete the work by excluding the period spent in the stay of execution of the contract.
26. A word of caution ought to be mentioned herein that any contract of public service should not be interfered with lightly and in any case, there should not be any interim order derailing the entire process of the services meant for larger public good. The grant of interim injunction by the learned Single Bench of the High Court has helped no-one except a contractor who lost a contract bid and has only caused loss to the State with no corresponding gain to anyone."
7.13 Considering the circumstances, I am of the opinion that the lower appellate court has not erred in coming to its conclusion by further taking care of balancing the equity through conditions imposed upon respondent No.1 - the company, and by directing the expeditious disposal of the suit proceedings within six months, especially given that the dispute between the Page 42 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined parties are on the basis of some disputed questions of fact, which is required to be proved at the time of fool- fledged trial, and considering the legal position of the provisions of Specific Relief Act, as well as the conduct of the parties, the order passed by the lower appellate court appears just and proper.
7.14 I find no infirmity or illegality in the decision of the lower appellate court. Therefore, there is no need for intervention by this Court under Article 227 of the Constitution of India, particularly, in light of the principles laid down in the in the case of Garments Craft vs. Prakash Chand Goel reported in (2022) 4 SCC 181, more particularly, paragraph Nos.15 to 17 are relevant, wherein it was held that High Courts while exercising powers under Article 227 does not act as an appellate authority and cannot re-appreciate evidence and the jurisdiction exercised under Article 227 is in nature of correctional jurisdiction to set aside grave dereliction of duty or flagrant abuse of process of law and High Court cannot substitute its own view on merits. The aforesaid relevant paragraphs are as follows: Page 43 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024
NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined "15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal.1 The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd.2 has observed:-Page 44 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024
NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined "6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly Page 45 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined come to such a conclusion, which the court or tribunal has come to." 2(2001) 8 SCC 97
17. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-
parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been Page 46 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution." 7.15 In light of the above-all discussions and considering the totality of the facts and circumstances of the case, and considering the factum of balance of convenience and irreparable loss, which are found in favour of present respondent No.1, who have already erected the windmill on the property of Survey No.147 prior to purchase of some part of land of Survey No.148 and also looking to the record; the land of Survey No.147 is allotted to respondent No.1 on lease hold right, whereby opinion of DILR was also considered. Therefore, merely the statement made by learned AGP before the court below is found contrary to the contents of written statement filed by the Government and also contrary to the other documentary evidences. Thus, the plaintiff has failed to establish prima facie case to grant the injunction as prayed for. I found that the present Page 47 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024 NEUTRAL CITATION C/SCA/5236/2024 JUDGMENT DATED: 02/04/2024 undefined petition lacks merit and is required to be dismissed.
8. Accordingly, the present petition is dismissed with no order as to costs.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 48 of 48 Downloaded on : Mon Apr 08 20:34:07 IST 2024