Back
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
ARUN BHANSALI, J.
Azure Power Forty Three Private Limited - Appellant
Vs.
Javed Khan S/o Khaleel Ahmed - Respondent
S.B. Civil Misc. Appeal No. 581/2021
Decided On : 28-07-2021
Specific Relief Act, 1963 - Sections 6 and 41 (h) - Rajasthan Tenancy Act, 1955 - Section 207 - Permanent injunction - Dispossession without adopting due process of law has not even been alleged in plaint - Restoration of his possession - Suit was filed by respondent-plaintiff under Section 6 of Specific Relief Act, 1963 and for permanent injunction inter alia with the submissions that plaintiff has 1/6th share in land ad measuring hectares situated in village comprised in Khasra - It was claimed that on said land, plaintiff had his possession and cultivation - Alleged that defendant company is engaged in developing solar project at village and other places and around land of the plaintiff it is executing the work of solar project, resulting in lands getting converted into non-agriculture from agriculture - Alleged that defendant has taken possession of the land; the plaintiff is deprived of cultivating the land, putting it to use and developing same - Indications were made that in land in question have share, which was joint and undivided defendant company without partition among the land holders by metes and bounds took possession belonging and has started work of constructing solar plant - Alleged that defendant was working against the Rules and Rajasthan Solar Energy Policy - Plaintiff was entitled to return back of his land immediately - 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 –
Finding of the Court:
Appellant has undertaken huge construction work and invested huge funds, in case it is not permitted to continue/complete its work, same necessarily would result in irreparable injury to appellant and in those circumstances, it cannot be said that balance of convenience lies in favour of plaintiff alone - Plaintiff has claimed his entire so called possession in Khasra which aspect, looking to the existing construction over said Khasra, has already been found doubtful appellant has indicated vacant land ad measuring map filed along with additional affidavit - Learned counsel for the respondent - Plaintiff disputed the fact that appellant company requires or was in possession of the portion of Khasra indicated in the map and made submissions that there was lot of temporary construction by placing removable iron shelters, the said aspect cannot be determined at this stage - Interest of justice would be served in case appellant-company is directed to maintain status quo pertaining to land ad measuring 7.80 Acre as indicated as ‘unused’ by them in map filed with the additional affidavit and to undertake that in case any finding is returned by trial court that plaintiff was in possession/in possession of any specific portion of land, and orders for delivery of possession of the said portion, they would deliver vacant possession of the said portion to the plaintiff –
Result: Appeal partly allowed
JUDGMENT :
This appeal is directed against the order dated 29/5/2021 passed by Addl. District Judge No.4, Bikaner, whereby, the application filed by the respondent-applicant-plaintiff under Order XXXIX Rule 1 and 2 CPC has been allowed and temporary injunction has been granted restraining the appellant-company from executing any work in the land indicated in para 2 of the application and to maintain status quo.
2. The suit was filed by the respondent-plaintiff under Section 6 of the Specific Relief Act, 1963 (‘the Act, 1963’) and for permanent injunction inter alia with the submissions that plaintiff has 1/6th share in the land ad measuring 18.94 hectares situated in village Daudsar, Patwar Halka, Jamsar comprised in Khasra no. 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 around the land of the plaintiff it is executing the work of solar project, resulting in lands getting converted into non-agriculture from agriculture.
3. It was alleged that the defendant on 18/3/2021 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 claimed that issues of balance of convenience and irreparable injury are also in his favour as he cannot be deprived of use of his land. It was indicated that the suit has been filed within limitation as possession was taken on 18/3/2021 and within six months the suit has been filed.
4. Based on the above averments, it was prayed that possession of the land be restored and permanent injunction be granted.
5. Along with the suit, an application under Order XXXIX Rule 1 and 2 CPC was filed seeking temporary injunction during the pendency of the suit. In the application after reiterating the averments made in the plaint, it was prayed that till the decision of the suit, without partition of the land by metes and bounds, the respondent should not execute any work on the land.
6. The defendant-appellant filed an application under Order VII Rule 11 CPC seeking rejection of the plaint. However, the said application was rejected on 8/4/2021 against which a revision petition is pending consideration before this Court.
7. A reply to the application under Order XXXIX Rule 1 and 2 CPC was filed denying the averments made in the application. It was contended that the plaintiff-applicant never had possession of the property and he has not been dispossessed at any point of time, therefore, the suit and the application were liable to be dismissed.
8. In additional pleas, it was claimed that the suit was barred under Section 207 of the Rajasthan Tenancy Act, 1955 (‘the Act, 1955’) and Section 41 (h) of the Act, 1963 and on that count the application was liable to be dismissed.
9. On facts, it was indicated that out of 18.94 Hectares of agricultural land, Jalaludin, Hazi Khan, Barkat Khan, Noor Jahan, Bhapia had 5/6th share and legal representatives of Chotu had 1/6th share. Bhapia gifted his 1/6th share to Barkat Khan and the khatedars executed registered lease deeds executed between July,
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
