Page No.# 1/12 vs M/S Superlite Aac Blocks Industries And ...
2025 Latest Caselaw 3636 Gua

Gauhati High Court

Page No.# 1/12 vs M/S Superlite Aac Blocks Industries And ... on 3 March, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                  Page No.# 1/12

GAHC010041332025




                                                             2025:GAU-AS:2241

                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : FAO/10/2025

         SMTI SOBITA RONGPHARI
         D/O- LATE KARDOM KE AAPI,
         W/O- AJAY MAHATO, R/O- VILLAGE SARUTARI,
         P.S- SONAPUR, DIST- KAMRUP (M), ASSAM, PIN-793101



         VERSUS

         M/S SUPERLITE AAC BLOCKS INDUSTRIES AND ORS
         A REGD. PARTNERSHIP FIRM HAVING ITS OFFICE AT SHANTI SADAN,
         ALOK PRESS BYE LANE, NARAYAN NAGAR, KUMARPARA, GUWAHATI-09,

         WITH ITS INDUSTRIAL SHED AT VILL- SARUTARI,
         SONAPUR, KAMRUP (M).
         REP. BY ITS PARTNER PRABITRA RABHA, S/O- ROBIN RABHA, AGE -37
         YRS,
         R/O- NO-1, SAKHATI,P.O- BONDAPARA, B.O,
         DIST- KAMRUP, ASSAM

         2:THE STATE OF ASSAM
          REP. BY THE COMMISSIONER AND SECRETARY

         REVENUE AND D.M DEPTT. DISPUR
         GUWAHATI-06

         3:THE DEPUTY COMMISSIONER
          KAMRUP M ASSAM GUWAHATI LAND SETTLEMENT BRANCH
         ASSAM 781001

         4:THE ADDITIONAL DEPUTY COMMISSIONER

          KAMRUP M ASSAM
          GUWAHATI LAND SETTLEMENT BRANCH
                                                                           Page No.# 2/12

          ASSAM 781001

          5:THE CIRCLE OFFICER

          SONARPUR REVENUE CIRCLE
          SONAPUR KAMRUP R ASSAM 782402

          6:AJAY MAHATO
           S/O LATE BHULON MAHATO
           RESIDENT OF VILLAGE SARUTARI
           PS SONAPUR
           DIST KAMRUP ASSAM 79310

           For the Appellant(s)        : Mr. A. Chowdhury, Sr. Advocate
                                       : Mr. N. Sarkar, Advocate
                                       : Mr. N. N. B. Choudhury, Advocate

           For the Respondent(s)       : Mr. K. N. Choudhury, Sr. Advocate
                                       : Mr. N. Bharali, Advocate
                                       : Ms. K. Phukan, Government Advocate
                                       : Mr. A. Bhattacharjee, SC, Revenue

            Date of Hearing             : 03.03.2025
            Date of Judgment            : 03.03.2025



                                BEFORE
                 HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                          JUDGMENT AND ORDER (ORAL)

Heard Mr. A. Chowdhury, the learned Senior counsel assisted by Mr. N. Sarkar, the learned counsel appearing on behalf of the appellant and Mr. K. N. Choudhury, the learned Senior counsel assisted by Mr. N. Bharali, the learned counsel appearing on behalf of the respondent No.1. I have also heard Mr. A. Bhattacharjee, the learned Standing counsel appearing on behalf of the proforma respondent No.1 and Ms. K. Phukan, the learned Government Advocate appearing on behalf of the proforma respondent Page No.# 3/12

Nos. 2, 3 and 4.

2. This is an appeal filed under Section 104 read with Order XLIII Rule 1(r) of the Code of Civil Procedure,1908 (for short 'the Code') challenging the order dated 18.02.2025 passed by the Court of the learned Civil Judge (Senior Division) No.3, Kamrup (M) at Guwahati (hereinafter referred to as 'the learned Trial Court') in Misc. (J) Case No.126/2025 arising out of Title Suit No.93/2025.

3. The challenge so made to the impugned order 18.02.2025 are primarily on the grounds that the said order which is an order of injunction was passed by the learned Trial Court without any discussion to the three golden principles for grant of an injunction. The learned Senior counsel for the Appellant submitted that the learned Trial Court exercised its jurisdiction assuming that injunction is a matter of charity. It was urged that from the materials on record, it would show that the plaintiff has no semblance of any claim in respect to the Schedule-B land. However, the learned Trial Court while passing the impugned order, had issued an injunction even over the Schedule B land till the next date. The learned counsel for the appellant further urged on the question of maintainability of the suit in view of the bar contained in Section 167 of the Assam Land and Revenue Regulations, 1886 (for short 'the Regulation') and submitted that the issue of maintainability which constitutes a very important facet in determining the existence of a prima facie case was not considered.

4. This Court has also heard Mr. K. N. Choudhury, the learned senior counsel who submitted that the impugned order dated 18.02.2025 was passed by the learned Trial Court taking into account that it was necessary Page No.# 4/12

for the purpose of protection of the subject matter of the suit till the next date in view of the fact that the Government Pleader who represented the defendant Nos. 1 to 4 had sought for time to obtain instructions. He therefore submitted that the impugned order having been made only effective till 05.03.2025, this Court in exercise of its appellate equitable jurisdiction ought not to interfere with the same.

5. Taking into account that the learned Trial Court had passed the impugned order which made effective till 05.03.2025 but without assigning any reasons as well as without discussing the principles for grant of injunction, this Court heard the learned counsels for the parties on the question whether the impugned order can be allowed to be continued till 05.03.2025 which is the next date fixed by the learned Trial Court.

6. Mr. K. N. Choudhury, the learned Senior counsel appearing on behalf of the respondent No.1/the plaintiff has placed before this Court the documents which were filed and relied upon by the plaintiff at the time of filing of the suit. The learned Senior counsel submitted that the plaintiff firm was reconstituted w.e.f. 01.04.2023 by the class of people notified under the provisions of Sub-Section (2) of Section 160 of the Regulation and as such they have rights over the Schedule-A land. The learned Senior counsel submitted that though there were earlier litigations wherein actions were taken by the Revenue Authorities in terms of Chapter-X of the Regulation, but with the present constitution of the plaintiff firm by the notified people, no action can be resorted to by the official defendants on the basis of Chapter-X of the Regulation. He submitted that this very aspect of the matter was brought to the notice of the official defendants vide a Page No.# 5/12

communication and in spite of the said information and clarification, the official defendants issued the communication dated 29.01.2025. The learned Senior counsel further submitted that whether the bar under Section 167 contained in the Regulation barring the jurisdiction of the Civil Court to exercise jurisdiction coming under Chapter-X of the Regulation would apply can only be decided upon adjudication of the issues by the learned Trial Court and the said stage had not come. The learned Senior counsel further submitted that in view of judgment of the Full Bench of this Court in the case of Daulat Ram Lakhani Vs. State of Assam reported in (1989) 1 GLR 131, the bar contained in Section 167 of the Regulation would not apply if the exercise of jurisdiction is illegal and without authority. The learned Senior counsel submitted that the next date is fixed on 05.03.2025 when the learned Trial Court can hear both the parties and pass appropriate orders on the injunction petition.

7. Per contra, Mr. A. Chowdhury, the learned Senior counsel submitted that an order of injunction which is not backed by no reasons cannot be permitted to continued. He submitted that the Court gets the jurisdiction to grant an injunction only when there is satisfaction to the three golden principles. He submitted that such satisfaction has to be apparent from the order of injunction and sans any reasons assigned and that too without applying the golden principles, the learned Trial Court's order is unreasonable, arbitrary, irrational, perverse and violates the settled principles of grant of injunction. He further submitted that there is no recording of the satisfaction of the three golden principles, for which, the order of the learned Trial Court is also without jurisdiction in law. On merits, the learned Senior counsel submitted that there is a bar contained in Section 167 of the Page No.# 6/12

Regulation on the maintainability of the suit. Referring to the judgment in the case of Shiv Kumar Chadha Vs. Municipal Corporation of Delhi and Others reported in (1993) 3 SCC 161, the learned Senior counsel submitted that the question of maintainability of the suit is an aspect which touches on the existence of a prima facie case. The learned Senior counsel submitted that this aspect was brought to the attention of the learned Trial Court on 18.02.2025, however the learned Trial Court granted the injunction even without considering the said aspect which is apparent from a reading of the impugned order itself.

8. The learned Senior counsel submitted that from the materials brought on record by the plaintiff as well as perusing the plaint and the injunction application, there is nothing to show that the plaintiff has any prima facie case insofar as the Schedule-B land is concerned. The learned Senior counsel drew the attention of this Court to the order dated 29.01.2025 which only refers to the Schedule-B land and not to Schedule-A land. He therefore submitted that as there existed no prima facie case insofar as the Schedule- B land, the learned Trial Court could not have passed any order effecting the Schedule-B land that too without arriving at a satisfaction that the plaintiff had any prima facie right over the Schedule-B land. The learned Senior counsel further submitted that the learned Trial Court exercised its jurisdiction assuming that grant of an injunction is a matter of charity, which aspect have been frowned upon by the settled principles of law.

9. I have heard the learned counsels for the parties at length on the question as to whether the impugned order dated 18.02.2025 can be allowed to be continued till 05.03.2025 which is the next date fixed before Page No.# 7/12

the learned Trial Court.

10. A perusal of the impugned order dated 18.02.2025 reveals that the plaintiff/the petitioner is a registered partnership firm which is running an industry of manufacturing AAC Blocks over the suit land. It was also mentioned in the said order that it was alleged that on 29.01.2025, the Circle Officer, Sonapur Revenue Circle had issued a notice for ejectment/eviction without any authority for which the suit was filed. It was further mentioned that a Government Pleader representing the opposite party Nos. 1 to 4 had prayed for time to seek instructions in the matter for filing objections in detail. Further, the opposite party No.5/the appellant herein had also raised objection against the instant petition filed by the plaintiff/petitioner. Be that as it may, it is relevant to note that the learned Trial Court without arriving at a satisfaction whether there existed a prima facie case in favour of the plaintiff for grant of an injunction; that the balance of convenience was in favour of the plaintiff for grant of an injunction and as to whether the plaintiff would suffer irreparable injury, if any injunction is not granted, passed an injunction order restraining the opposite parties/the defendants from taking any action against the plaintiff in pursuance to the notice dated 29.01.2025 without disturbing the peaceful possession of the plaintiff over the Schedule A and B land till the next date. It is also pertinent to note that the learned Trial Court also did not address the question as to whether it would result in the suit becoming infructuous if opportunity was given to the opposite parties in the injunction application to file objection.

11. Now the question arises as to whether such course of action is Page No.# 8/12

permissible. It is relevant to take note of that the well settled principles of law stipulate that a party is not entitled to an order of injunction as a matter of right or course. Grant of an injunction is within the discretion of the Court and such discretion is to be exercised in favour of the plaintiff only, if it is proved to the satisfaction of the Court that unless the defendant(s) is restrained by an order of injunction, an irreparable loss or damage would be caused to the plaintiff during the pendency of the suit. It is also well settled that before passing an order of injunction, the Court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and the refusal of injunction would cause irreparable injury to him.

12. In the instant case, it would be seen the learned Trial Court did not find it necessary to deal with the above settled propositions of law prior to passing of the impugned order dated 18.02.2025.

13. This Court further finds it appropriate at this stage to observe that a perusal of the plaint or even the injunction application and the documents which were placed by Mr. K. N. Choudhury, the learned Senior Counsel during the course of the hearing (the documents which were relied upon by the plaintiff at the time of filing of the suit) do not show that the plaintiff had any right over the Schedule-B land. What is seen from a perusal of the plaint is that plaintiff firm earlier was constituted by persons who were not notified persons within the meaning of Section 160(2) of the Regulation. At that relevant point of time, proceedings were initiated against the plaintiff firm under Chapter-X of the Regulation. An order dated 03.09.2021 was passed by the Deputy Commissioner (now District Commissioner) in terms with Page No.# 9/12

Section 165 of the Regulation against the plaintiff firm. The plaintiff firm thereupon preferred a statutory appeal before the learned Assam Board of Revenue which was registered and numbered as Case No. 32RA(K)/2021. The said appeal was dismissed by the learned Assam Board of Revenue vide an order dated 16.09.2021. The petitioner thereupon preferred a Writ Petition before this Court which was registered and numbered as WP(C) No.4901/2021. The said writ petition was withdrawn on 09.01.2025 without seeking any liberty.

14. From the above, it would therefore be seen that from the averments made in the plaint that vide order dated 03.09.2021 eviction proceedings were initiated under Section 165 of the Regulation which was upheld by the learned Assam Board of Revenue vide an order dated 16.09.2021 and the same had attained finality. It is further seen from a perusal of the plaint that during the pendency of the writ petition being WP(C) No.4901/2021 before this Court, the plaintiff firm was reconstituted on 01.04.2023. With this reconstitution, it was the case of the plaintiff that now the plaintiff firm is constituted by partners who are all notified tribals coming within the ambit of Section 160(2) of the Regulations. It is further relevant to take note of that the plaintiff had claimed that it had established its industry over a plot of land admeasuring 21 Bighas 4 Kathas 17 Lechas covered by Dag No.95 of patta No.20 of village Sarutari under Mouza Sonapur. This land was specifically described in Schedule-A to the plaint. The materials on record including the perusal of the plaint do not show in any manner that the plaintiff have any semblance of right over the plot of land admeasuring 16 Bighas 13 Lechas covered by Dag No.35 included in K. P. Patta No.30 of village Sarutari Mouza Sonapur in the District of Kamrup (M), Assam. This Page No.# 10/12

land is the Schedule-B land.

15. From the above, it would transpire that the eviction proceedings initiated against the plaintiff firm had attained finality. The materials on record further show that the District Commissioner, Kamrup (Metro) had issued a communication dated 27.01.2025 to the Circle Officer, Sonapur Revenue Circle to take effective steps. On the basis of the said communication dated 27.01.2025 of the District Commissioner, the Circle Officer, Sonapur Revenue Circle directed the plaintiff firm to vacate the land mentioned in the Schedule to the notice dated 29.01.2025. A perusal of the said land described in the notice dated 29.01.2025 would show that it is not the Schedule-A land where the plaintiff claimed to have set up its industry but rather it is the Schedule-B land where the plaintiff has no semblance of any right. Under such circumstances, in the opinion of this Court, the learned Trial Court ought not to have granted an injunction in respect to the notice dated 29.01.2025 which was only in respect to the Schedule-B land.

16. It is settled principle of law that an Appeal against an order of injunction is an Appeal in principle. The Appellate Court should not normally interfere with the order of injunction. However, the permissible exceptions are when the order of injunction is illegal, perverse, unreasonable, irrational and in violation to the well settled principles of law for grant of injunction. The impugned order in the opinion of this Court comes within the exceptions as the impugned order is unreasonable, arbitrary, irrational and violates the settled principles of law for grant of injunction. Normally, this Court would have straightaway set aside the impugned order of injunction but on account of complete non-application of mind by the learned Trial Court not adhering Page No.# 11/12

to the principles for grant of an injunction, the parties should not suffer. It is on this account that this Court have dealt with the question as to whether the impugned order dated 18.02.2025 could be continued till 05.03.2025.

17. This Court have taken note of that the plaintiff has stated that they have set up their industry in the Schedule-A land in the plaint, which the plaintiff claimed to have ownership. It is the opinion of this Court that the plaintiff's right over the Schedule-A land is required to be protected till 05.03.2025. However, in respect to the Schedule-B land as the plaintiff failed to show any semblance of right, no question of granting any injunction in respect to the Schedule-B land arises.

18. Considering the above, this Court disposes of the instant appeal with the following observations and directions:

(A) There shall be an injunction restraining the opposite parties in the injunction application being Misc. (J) Case No.126/2025 not to disturb the possession of the plaintiff over the Schedule-A land till 05.03.2025.

(B) There is no injunction in respect to the Schedule-B land.

(C) There is no injunction in respect to the order dated 29.01.2025 insofar as the same is in respect to the Schedule-B land. It is however observed that the official defendants shall not in the garb of taking action in Schedule-B land, disturb the possession of the plaintiff in Schedule-A land.

(D) The order dated 18.02.2025 stands modified in terms with the Page No.# 12/12

above.

19. It is further seen that the next date is fixed before the learned Trial Court on 05.03.2025 and the learned counsel appearing on behalf of the appellant herein submitted that the written objections would be filed on that date.

20. The learned Trial Court shall taking into account the business of the Court try to dispose of the said injunction application at the earliest and preferably within 05.04.2025. It is further observed that while disposing of the said injunction application, the learned Trial Court shall dispose of the same in accordance with law and following the settled principles of law for grant of injunction. Additionally, the observation made hereinabove are prima facie opinion and the same shall not effect either of the parties in both the injunction proceedings and the suit.

21. With above observations and directions, the instant appeal stands disposed of.

JUDGE

Comparing Assistant