Paramjit Singh vs Rahul Mahajan And Others
2021 Latest Caselaw 1084 j&K

                                      =h475




     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                              Reserved on : 07.09.2021
                                              Pronounced on: 10.09.2021

                                                 CR No.44/2021
                                                 CM No.7007/2021


Paramjit Singh                                                   ...Petitioner(s)


                            Through:- Mr. Sunil Sethi Sr. Advocate with
                                      Mr. Sachin Gupta, Advocate
      V/s

Rahul Mahajan and others                                       ...Respondent(s)


                          Through:- M/s Amit Bhardwaj & Rahil Raja,
                                   Advocates for R-1 to 6

Coram: HON'BLE MR. JUSTICE SANJY DHAR, JUDGE

                                 JUDGMENT

1. The petitioner has filed the instant revision petition against

order dated 11.08.2021 passed by the Civil Judge Senior Division, Kathua

(hereinafter to be referred as "the Trial Court"), whereby application of the

petitioner under Order-7 Rule 11 of the Code of Civil Procedure for

rejection of the plaint stands dismissed.

2. Briefly stated, the facts giving rise to the filing of the instant

revision petition are that respondent Nos. 1 to 6 (hereinafter to be referred

as "the plaintiffs") filed a suit against the petitioner and respondent Nos. 7

to 14 (hereinafter to be referred as "the defendants") before the learned

Trial Court claiming the following reliefs:-

"i) Decree of permanent prohibitory injunction, restraining the defendant No.1 from interfering or causing an interference in the peaceful possession of the plaintiffs over the land measuring 800 kanals comprised in Khasra Nos.10 min, 16. 18, 29, 37, 38, 40, 42, 75, 85, 113, 126, 134, 137, 143, 170/1, 171, 182, 190, 180, 196, 197, 200, 202, 211, 213 min, 215, 216/1, 220 min, 226, 227, 252, 254 min, 255, 255/1, 522/256, 305 min, 306, 388, 389, 396, 410, 307/2, 494/400, 451/358, 257, 257 min, 479/387 situated at Village Jogian, Tehsil Nagri District Kathua;

ii) Decree of permanent prohibitory injunction, restraining the defendants Nos. 2 to 5 from granting Environmental Clearance to the three mining plans/projects submitted by defendant No.1 in respect of land measuring 8 hectares, 9.65 hectares and 9.85 hectares on the banks of river Ujh at Village Jogian, Tehsil Nagri, District Kathua, without first demarcating the land held by plaintiffs and that proposed by defendant No.1 on spot;

iii) Decree of Permanent prohibitory injunction restraining the defendants Nos. 2 to 9 from further processing the case of defendant No.1 for grant of mining lease in respect of the aforesaid land proposed by him at Village Jogian, Tehsil Nagri, District Katua, unless and until the demarcation of lands of plaintiffs and defendant No.1 is undertaken on spot; and

iv) Decree of mandatory injunction, directing the respondent No.7 to undertake demarcation of the aforesaid 800 kanals of land held by the plaintiffs in

Khasra Nos.10 min, 16. 18, 29, 37, 38, 40, 42, 75, 85, 113, 126, 134, 137, 143, 170/1, 171, 182, 190, 180, 196, 197, 200, 202, 211, 213 min, 215, 216/1, 220 min, 226, 227, 252, 254 min, 255, 255/1, 522/256, 305 min, 306, 388, 389, 396, 410, 307/2, 494/400, 451/358, 257, 257 min, 479/387, situated at Village Jogina, Tehsil Nagri District Kathua as well as the demarcation of land proposed by defendant No.1 for grant of mining lease.

v) Decree of mandatory injunction, directing the defendant No.1 to modify/correct the GPS co-ordinates indicated by him in his mining plans submitted in respect of land measuring 8 hectares, 9.65 hectares and 9.85 hectares on the banks of river Ujh at Village Jogian, Tehsil Nagri, District Kathua, so as to exclude the land held by petitioners and to further clearly indicate in his mining plans, such a passage to be used by defendant No.1 for transportation of minerals as doe snot pass through the aforesaid land held by plaintiffs;"

3. The case of the plaintiffs, as set up in the plaint, is that the

suit land measuring 800 kanals in respect of which relief is being claimed

against the defendants, particularly, defendant No.1/ petitioner, belongs to

plaintiffs and that they are in possession of the said land. According to the

plaintiffs, defendant No.1 has gained possession of 613 kanals of land in

the same village but in a different khewat number. He has been permitted

by the official respondents to undertake mining activities in his aforesaid

land. According to the plaintiffs, defendant No.1 cannot access or reach

the area in respect of which he has been granted mining lease without

trespassing upon the aforesaid land of the plaintiffs. It is also alleged that

in order to reach the mining site for the purposes of transportation of minor

minerals from the proposed mining site that has been allocated to

defendant No.1, the said defendant has to use the aforesaid private land of

the plaintiffs. It is contended that the mining site allotted to defendant No.1

and the plaintiffs' aforesaid land have many intersecting patches at

numerous places and the mining site is surrounded on three sides by the

land of the plaintiffs by the intersecting patches. In short, the main

grievance of the plaintiffs that has been projected in the plaint is that they

apprehend that while undertaking mining activities, defendant No.1 shall

encroach upon the aforesaid land of the plaintiffs. On the basis of these

pleadings, the plaintiffs have sought the reliefs quoted herein above.

4. It appears that defendant No.1 has filed his written statement

before the Trial Court and in his written statement, on merits, it has been

contended that the land of the plaintiffs and the land of defendant No.1 are

altogether situate in different khewat numbers and there is no confusion

about identification of these two patches of land. According to defendant

No.1, land belonging to plaintiffs falls in khewat No.1 whereas the land

belonging to defendant No.1 falls in khewat No.3. Defendant No.1 has

denied that there is any overlapping between the land of the plaintiffs and

that of the defendant No.1. According to defendant No.1, his land has been

clearly demarcated before granting of mining license in his favour.

5. Besides submitting the aforesaid reply on merits, defendant

No.1 has also raised certain preliminary objections with regard to the

maintainability of the suit and it has been contended that the suit is not

maintainable in view of the efficacious remedy available to the plaintiffs in

terms of Rule 85 of the J&K Minor Mineral Concession, Storage,

Transportation of Minerals and Prevention of Illegal Mining Rules, 2016.

It has further been contended that the suit is barred in terms of Section 22

of the Environmental Protection Act and Section 139 of the Land Revenue

Act. In fact, defendant No.1 filed a separate application under Order-7

Rule 11 of the Code of Civil Procedure before the Trial Court with a

prayer for rejection of the plaint on the aforesaid grounds. It is this

application, which has been dismissed by the Trial Court vide the

impugned order.

6. I have heard learned counsel for the parties and perused the

record of the case.

7. At the very outset, it has been contended by the learned

counsel for the contesting respondents (plaintiffs), who are on caveat, that

the revision petition against the impugned order is not maintainable.

According to the learned counsel, impugned order has not decided any lis

finally between the parties, as such, revision petition is not maintainable.

8. In order to test the merits of the submissions made by the

learned counsel for the plaintiffs, it is necessary to notice the provisions

contained in Section 115 of the Code of Civil Procedure. It reads as

under:-

"115. Revision.--- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears---

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit:

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.

Explanation--.In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue in the course of a suit or other proceeding."

9. From a perusal of the aforesaid provision, it is clear that

proviso to Sub Section (1) of Section 115 of the Code of Civil Procedure

creates a bar to exercise of revisional jurisdiction against an order, except

in a case where the order if it had been made in favour of the party

applying for revision, would have finally disposed of the suit or other

proceedings. So in order to maintain a revision petitioin against an order, it

has to be shown that if the order had been made in favour of the party

applying for revision, the same would have finally disposed of the suit or

other proceedings.

10. In the instant case, the revision petitioner had filed an

application under Order 7 Rule 11 of the Code of Civil Procedure seeking

rejection of the plaint and if, he would have succeeded in the said

application, the proceedings in the suit would have come to an end. Thus,

revision petition against such an order is maintainable and is not barred by

proviso appended to Sub Section (1) of Section 115 CPC.

11. That takes us to the merits of the petition. It has been

contended by the learned Senior Counsel appearing for the petitioner that

the suit of the plaintiffs is barred on three counts:-

i) That there is a provision of appeal, under Rule 85 of

SRO 105 dated 31.03.2016 (The Jammu and Kashmir

Minor Mineral Concession, Storage, Transportation of

Minerals and Prevention of Illegal Mining Rules, 2016),

which is an alternative efficacious remedy available to a

person aggrieved by an order passed by an officer in-

charge.

ii) That Section 22 of the Environment Protection Act bars

jurisdiction of Civil Courts to entertain any suit or

proceeding in respect of anything done under the aforesaid

Act.

iii) Section 139 of the Land Revenue Act excludes

jurisdiction of the Civil Courts in all the matters falling

within the jurisdiction of Revenue Courts.

12. Before coming to the question whether the provisions of various

enactments/Rules referred to herein above bar the jurisdiction of Civil

Court in the facts and circumstances of the instant case, it would be

necessary to notice the legal position as to in what circumstances a Civil

Court is barred from entertaining a suit.

13. Section 9 of the Code of Civil Procedure provides that Civil Court

has jurisdiction to try all suits of civil nature unless barred. It reads as

under:-

"9. Courts to try all civil suits unless barred.----The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Explanation I.- A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

Explanation ll.- For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place"

14. In terms of the aforesaid provision, every person has inherent right

to bring a suit of civil nature unless it is barred by statute. Jurisdiction of

Civil Court is plenary in nature and unless same is ousted expressly or by

necessary implication, it will have the jurisdiction to try all types of suits.

The Supreme Court in the case of Dhulabhai and others v. The State of

Madhya Pradesh and another, 1969 AIR 78 has, after discussing the

legal position on the issue, laid down the following principles:-

"(1) Where the statute gives a finality to the orders of the special tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.

Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.

(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.

(4) When a provision is already declared unconstitutional. or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.

(5) Where the particular Act contains no machinery for refund' of tax collected in excess of constitutional limits or illegally collected a suit lies.

(6) Questions of the correctness of the assessment apart from its constitutionality are for. the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.

(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply."

15. Again the Supreme Court in the case of Vimal Kishore Shah

v. Jayesh Dinesh Shah, (2016) 8 SCC 788 has observed that ouster of

jurisdiction of Civil Court cannot be inferred readily. In Robust Hotels (P)

Ltd. v. EIH Ltd., (2017) 1 SCC 622, it has been laid down that the

jurisdiction of civil court is plenary in nature and unless the same is

ousted, expressly or by necessary implication, it will have jurisdiction to

try all types of suits.

16. In the light of the foregoing legal position, let us now

consider the facts of the instant case. The plaintiffs are alleging that they

are owners in possessions of a particular patch of land and defendant No.1,

on the basis of mining lease granted in his favour by the official

defendants, is threatening to interfere in their possession of the suit land.

Defendant No.1 claims that the suit land and the land belonging to him i.e.

mining site are entirely different patches of land and are well demarcated

and as such, the claim made by the plaintiffs has no merit. The plaintiffs,

however, contend that unless demarcation between two patches of the land

is properly made, the case of defendant No.1 for grant of mining lease

should not be processed.

17. Now the question arises as to whether any of the aforesaid

reliefs claimed by the plaintiffs is barred by any provision of law and

whether plaintiffs have any other forum to claim such reliefs. So far as

Rule 85 of The Jammu and Kashmir Minor Mineral Concession Storage,

Transportation of Minerals and Prevention of Illegal Mining Rules, 2016 is

concerned, it reads as under:-

"85. Appeal.--(1) Any person aggrieved by an order passed by any officer in-charge sub-ordinate to Director shall have the right of appeal to the Director.

(2) Any person aggrieved by an order passed in appeal under sub-rule (1) or any other order passed by the Director under these rules shall have the right of appeal to the Government.

(3) The order passed by the Government in appeal shall be final."

From a perusal of the aforesaid Rule, it is clear that an appeal

lies to the Director against an order passed by the officer in-charge. The

officer in-charge has been defined in Rule 2(xLvii) of the aforesaid Rules

as an officer of the Department from disciplines of Mining/Geology and

designated as Incharge of a particular district by the Government.

18. In the instant case, the plaintiffs are not challenging any order

of officer in-charge by way of the suit. Therefore, Rule 85 of the J&K

Minor Mineral Concession Storage, Transportation of Minerals and

Prevention of Illegal Mining Rules, 2016 does not have any applicability

to the case at hand.

19. Coming to the provisions contained in Section 22 of the

Environment Protection Act, the same reads as under:-

"22. Bar of jurisdiction.--- No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of anything done, action taken or order or direction issued by the Central Government or any other authority or officer in pursuance of any power conferred by or in relation to its or his function under this Act."

20. From a perusal of the aforesaid provision, it is clear that civil

court does not have jurisdiction to entertain a suit in respect of anything

done in pursuance of any power conferred under the Environment

Protection Act. The plaintiffs in the suit contend that environmental

clearance should not be granted to defendant No.1 without first

demarcating land held by the plaintiffs and that held by defendant No.1. So

the paramount concern of the plaintiffs, which they have projected in the

suit, is demarcation of respective patches of land held by the plaintiffs and

defendant No.1. They are not challenging any order passed by the

competent authority granting environmental clearance in favour of

defendant No.1 but their only concern is that same should be done after

demarcation of the land is made. So, even the provisions contained in

Section 22 of the Environment Protection Act are not attracted to the

instant case.

21. That takes us to the bar to entertain civil suit as contained in

Section 139 of the Land Revenue Act. It has been vehemently contended

by the learned Senior Counsel appearing for the petitioner that

demarcation of the land belonging to defendant No.1 i.e. mining site has

already been undertaken and if the plaintiffs are aggrieved of the same

they have a remedy under the provisions contained under the Land

Revenue Act and since there is alternative efficacious remedy available to

them, the suit cannot be maintained.

22. The contention of the plaintiffs in the suit is that the mining

site that has been allotted to defendant No.1 cannot be approached without

interfering and trespassing into the suit land, which is in ownership and

possession of the plaintiffs. This has been denied by defendant No.1.

According to him, patches of land belonging to plaintiffs and defendant

No.1 are separate and distinct from each other. The question that arises for

consideration is whether the dispute raised by the plaintiffs in the suit on

the above aspect of the matter is a mere dispute of demarcation or more

than that. Prima facie, it appears to be not only a dispute with regard to

demarcation of the land but it also appears that there is a dispute as regards

the right of way i.e. easementary rights to access the mining site allotted to

defendant No.1. Such an issue cannot be determined and decided by a

revenue court and it is only a civil court which is competent to entertain

and decide such a dispute. Therefore, the bar created to entertainment of a

suit under Section 139 of the Land Revenue Act does not come into play.

23. Even if it is assumed that the dispute between the parties is

only with regard to demarcation of respective portions of land, still then in

terms of Sub Section (2) of Section 95 of the Land Revenue Act, the party

dissatisfied with the order of the revenue officer regarding demarcation is

entitled to have resort to the remedy in the civil court as such an order is

subject to the decision of the civil court. Thus, jurisdiction of the civil

court to entertain dispute of instant nature is not barred by the provisions

contained in the Land Revenue Act.

24. In the face of aforesaid analysis, it is clear that none of the

provisions of law referred and relied upon by the petitioner either

expressly or by necessary implication bar the jurisdiction of civil court to

entertain a suit of the nature which is subject matter of this petition.

Therefore, I do not find that it is a case where the Trial Court has exercised

its jurisdiction illegally or with material irregularity. Thus, there is no

ground to interfere with the order of the Trial Court. The revision petition

is, accordingly, dismissed.

(Sanjay Dhar) Judge JAMMU.

10.09.2021 Vinod.

Whether the order is speaking : Yes Whether the order is reportable: Yes