Azure Power Forty Three Pvt. Ltd vs Javed Knan
2021 Latest Caselaw 13073 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 35/2021

Azure Power Forty Three Pvt. Ltd., Fifth Floor Southern Park, D Ii Saketh Palace, New Delhi, Sight Office, Village Daudsar, Tehsil And District Bikaner

----Petitioner Versus Javed Knan S/o Khaleel Ahemad, Aged About 26 Years, Ward No. 16, Jat Colony, Gharsana, District Sriganganagar

----Respondent

For Petitioner(s) : Mr. R.K. Thanvi, Sr. Adv. assisted by Mr. Narendra Thanvi.

Mr. Virendra Acharya.

For Respondent(s) : Mr. Muktesh Maheshwari.

HON'BLE MR. JUSTICE ARUN BHANSALI

Judgment

25/08/2021 This revision petition is directed against the order dated

08.04.2021 passed by the Additional District Judge No.4, Bikaner,

whereby the application filed by the petitioner under Order VII,

Rule 11 CPC seeking rejection of the plaint has been dismissed.

The suit was filed by the respondent-plaintiff under Section 6

of the Specific Relief Act, 1963 ('the Act') for possession &

permanent injunction, inter-alia, with the submissions that plaintiff

has 1/6th share in the land ad measuring 18.94 Htrs. situated in

Village Daudsar, Patwar Halka, Jamsar comprised in Khasara Nos.

215, 421, 458, 709/420, 710/417, 711/422 and 792/459. It was

claimed that on the said land, the plaintiff had his possession and

cultivation. It was alleged that defendant company is engaged in

developing solar project at Village Daudsar and other places and

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around the land of the plaintiff it is executing the work of solar

project, resulting in lands getting converted into non-agriculture

from agriculture.

It was alleged that the defendant on 18.03.2021 has taken

possession of the land; the plaintiff is deprived of cultivating the

land, putting it to use and developing the same. Indications were

made that in the land in question, Akram, Jalaludin, Noor Jahan,

Baby, Barkat Khan and Hazi Khan have share, which was joint and

undivided, however, the defendant company without partition

among the land holders by metes and bounds took possession

belonging to Akram, Jalaludin, Noor Jahan, Baby, Barkat Khan and

Hazi Khan and has started work of constructing solar plant. It was

also alleged that the defendant was working against the Rules and

Rajasthan Solar Energy Policy, 2020. The plaintiff was entitled to

return back of his land immediately. It was also indicated that

plaintiff is entitled to permanent injunction against the defendant

not to act against the parameters for protection of environment

and without taking other security measures. It was indicated that

the suit has been filed within limitation as possession was taken

on 18.03.2021 and within six months the suit has been filed.

The petitioner on being served filed an application under

Order VII, Rule 11 r/w Section 151 CPC, inter-alia, with the

submissions that the suit was not maintainable as the suit land

was agricultural and merely because the same has been leased

out to a solar company, the nature of agriculture land does not

change. The suit was barred under the provisions of Section 207

of the Rajasthan Tenancy Act, 1955 ('the Tenancy Act') as only the

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revenue courts have the jurisdiction to grant relief in relation to an

agricultural land.

Further submissions were made that even under the

provisions of Section 41(h) of the Act, the suit was barred as the

plaintiff had an alternative remedy and on that count also, the

plaint was liable to be rejected.

Though no reply to the application was filed, the application

was contested by the plaintiff.

After hearing the parties, the trial court by its impugned

order, noted the contentions and the judgments cited by both the

parties and while rejecting the application observed as under :-

"8- oknh us izfroknh ds fo:) okn ckcr izkIr djus dCtk vUrxZr /kkjk 6 Lisf'kfQd ijQksjesal vkW,Q ,DV ,oa fpj&LFkk;h fu"ks/kkKk gsrq is'k fd;k gSA fookfnr lEifÙk d`f"k Hkwfe gS ;k ugha] vFkok fookfnr lEifÙk d`f"k Hkwfe ls lksyj IykUV iz;kstu esa dUoVZ gks pqdh gS vFkok ugha] ;g fof/k ,oa rF; dk feJr iz'u gSaA izfroknh }kjk vius izkFkZuk i= esa gLrxr okn dks lquus dh Jo.kkf/kdkfjrk o {ks=kf/kdkfjrk ds ckcr mBkbZ xbZ gS] mDr vkifÙk vius tokcnkok esa ysus ds fy, LorU= gS rFkk budk vo/kkj.k fook|d fojfpr dj mHk; i{k dh lk{; ds ckn fd;k tkuk laHko gSA vHkh okn i= o izkFkZuk i= esa izfroknh dh vksj ls tokc nkok @ izkFkZuk i= is'k ugha fd;k x;k gSA

------------------------------------------------------------------------------------------------------------------------------ 10- vr% izfroknh dh vksj ls izLrqr mDr izkFkZuk i= vHkh bl izØe ij bl :i esa fuLrkfjr fd;k tkdj [kkfjt fd;k tkrk gS izfroknh }kjk {ks=kf/kdkj o Jo.kkf/kdkj o okn&dkj.k ds lEcU/k esa yh xbZ vkifÙk;ksa ds ckcr fook|d fojfpr dj ewy okn esa l{ke lk{; ds mijkUr gh bu fcUnqvksa dks r; fd;k tk;sxkA"

Feeling aggrieved, the present revision petition has been

filed.

Learned counsel for the petitioner made vehement

submissions that the trial court fell in error in rejecting the

application under Order VII, Rule 11 CPC by holding that the issue

as to whether the land in question is agricultural or not and

whether the same has been converted for the purpose of solar

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plant, was a mixed question of law & fact and in cursorily rejecting

the application.

Submissions were made that from the bare reading of the

plaint, it is apparent that the suit land is an agriculture land as the

plaintiff has repeatedly claimed the same to be agriculture land

and has assumed that as the same has been leased out for the

purpose of setting up of solar plant, the suit was maintainable

before the civil court. It was emphasized that the provisions of

Section 187B of the Tenancy Act are pari materia with provisions

of Section 6 of the Act and the relief of injunction is also available

under Section 188 of the said Act and as such, under the

provisions of Section 207 of the Tenancy Act, the suit is ex-facie

barred.

It was further submitted that merely because the land in

question has been put to use for solar plant, the nature of land

shall not get converted.

Reference was made to Rajasthan Land Revenue (Conversion

of agricultural land for non-agricultural purposes in rural areas)

(Second Amendment) Rules, 2014 ('the Rules of 2014'), whereby

new Rule 6B was inserted providing for use of khatedari land for

Solar Farm / Solar Plant / Solar Power Plant, Wind farm / Wind

Power Plant, wherein it was stipulated that no conversion shall be

required for use of khatedari land for the said purposes and

therefore, irrespective of the use to which the land has been put,

the nature of land remains agriculture and therefore, the suit is

ex-facie barred under Section 207 of the Act.

Further submissions were made that merely because an

agriculture land has been put to non-agriculture purposes, the

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same would not change its character and the revenue court would

continue to have jurisdiction over the said land. It was prayed that

as the trial court has totally ignored the law on the subject and

has cursorily rejected the application, the revision petition

deserves to be allowed. The order impugned deserves to be set-

aside and the plaint be rejected as barred by law.

Further reliance was placed on judgments in Smt. Premi Devi

v. Deva Ram : (2009) 1 DNJ (Raj.) 410, Lal Singh Jhala v. Panna

Lal : (2016) 3 DNJ (Raj.) 1461, and Hastimal & Ors. v. Pushpa

Devi : (2020) 4 DNJ (Raj.) 1108.

Learned counsel for the respondent-plaintiff vehemently

opposed the submissions. It was submitted that for the purpose of

determining whether the suit was barred under the provisions of

Section 207 of the Tenancy Act, it is necessary to look into the

nature and uses of the suit land.

With reference to the averments made in the plaint, it was

indicated that the plaintiff has specifically averred that the entire

land is being put to use as solar plant and once it is being put to

use other than agriculture, the defendants cannot claim that the

suit was barred by treating the land in question as agriculture

land. It was sought to be emphasized that merely because by the

Rules of 2014, the requirement to get the land converted for the

purpose of solar power plant etc. has been done away with, it

cannot be denied that the land has been put to non-agriculture

uses and therefore, the provisions of Section 207 of the Tenancy

Act would have no application and as such, the application was

liable to be rejected.

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Submissions were made that in the case of present nature, it

is always a mixed question of law & fact as to whether the land in

question is agriculture / continuous to be agriculture and

therefore, the trial court was justified in rejecting the application

and deferring the matter till evidence is led by the parties.

Further submissions were made that as this Court while

deciding the appeal arising out of the order passed by the trial

court in the same suit under Order XXXIX, Rule 1 & 2 CPC has

expected the trial court to proceed with the matter with utmost

expedition, once such a direction has been issued, there is no

necessity to decide the said aspect by this Court. It was prayed

that the revision petition be dismissed.

Reliance was placed on Harpal Singh v. Ashok Kumar & Anr.

: (2018) 11 SCC 113 and Bal Kishan & Anr. v. Manoj Kumar &

Ors. : 2014(4) DNJ (Raj.) 1461.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record

along with the record of the trial court.

The facts are not in dispute that the plaintiff in his plant has

repeatedly indicated that the land in question is agricultural,

however, in the same breath, he has repeatedly indicated that as

the land is being used for solar project, the nature of land stands

changed.

The trial court by its impugned order though noticed all the

contentions raised by the parties, chose not to deal with any of

the contentions and in a wholly cursory manner passed the order

impugned by indicating that the said aspect was a mixed question

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of law & fact, as is apparent from the determination quoted

herein-before.

Once a plea is raised under Order VII, Rule 11 CPC and

specially under Order VII, Rule 11(d) CPC claiming that the suit

was barred by law, it is the minimum requirement for the trial

court to determine the said issue by taking into consideration the

averments made in the plaint and the provisions under which

plaint is indicated as barred. In case, the court comes to the

conclusion that the issue raised is a mixed question of law & fact,

merely indicating the said conclusion is not sufficient, the court

has to indicate the reasons for reaching to such a conclusion,

which aspect is totally absent in the impugned order. The court

has simply indicated the issue and has drawn the conclusion that

the same was a mixed question of law & fact.

The submissions, which have been made before this Court

with reference to the Rules of 2014 as well as the reliance, which

has been placed by learned counsel for the respondent on the

judgment in the case of Harpal Singh (supra) in contrast with the

judgment of this Court in the case of Lal Singh Jhala (supra),

which judgments deal with the position of law in terms of the

legislation involved i.e. Delhi Land Reforms Act, 1954 and the

Tenancy Act respectively, requires consideration besides the

submissions already made before the trial court.

However, for lack of any determination by the trial court on

the issues involved in the application and the fact that this Court

while deciding the appeal arising between the same parties from

an order passed under Order XXXIX, Rule 1 & 2 CPC, has required

the trial court to proceed with the matter with utmost expedition,

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it would be in fitness of things that the matter is left open for the

trial court to decide the aspect of suit being barred in the suit

itself instead of either requiring the trial court to redecide the

application or determining the issue in present revision petition at

this stage without having the benefit of any fruitful determination

by the trial court on the issue.

In view of the above discussion, the order impugned dated

08.04.2021 for lack of reasons is set-aside. The matter is

remanded back to the trial court to redetermine the aspect of the

suit being barred by law, keeping in view the observations made

herein-before. It would be open for the trial court to do the same

by framing a preliminary issue. It is reemphasized that the trial

court shall proceed with the matter with utmost expedition.

The revision petition stands disposed of with the above

directions.

The record of the trial court be sent back forthwith by the

Registry.

(ARUN BHANSALI),J

Rmathur/-

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