Bhayati vs Board of Revenue, Ajmer and Others

Sangeet Lodha, J.—This petition is directed against order dated 6.5.15 passed by the Board of Revenue Rajasthan, whereby a revision petition preferred by the petitioner questioning the legality of order dated 22.4.15 passed by the Revenue Appellate Authority (RAA), Barmer, dismissing the appeal preferred by the petitioner against the order dated 18.2.15 passed by the Assistant Collector, Bhaniyana, rejecting the application preferred under Section 212 of Rajasthan Tenancy Act, 1955 (for short "the Act"), stands dismissed.

The petitioner filed a suit for injunction under Section 188 of the Act, against the respondents No. 7 to 9 herein, accompanied by an application under Section 212 of the Act, seeking temporary injunction in terms that the respondents may not enter into khatedari land of the petitioner, ad measuring 48.8 bighas comprising khasra No. 610/36 and further may not raise construction and interfere with her cultivatory possession thereon. The application was contested by the respondents No. 7 to 9 herein, by filing the reply thereto.

After due consideration of the rival submissions, the trial court arrived at the finding that the Company M/s. Inox Renewables Ltd. has been allotted the land comprising khasra No. 36 for its Wind Power Project and the possession thereof has been handed over to it. The court observed that there is nothing on record to suggest that the Company is raising construction on the khatedari land of the petitioner comprising khasra No. 610/36. The court arrived at the finding that the petitioner/plaintiff has no prima facie case in her favour and if the interim relief as prayed for, is granted, irreparable loss will be caused to the Company M/s. Inox Renewables Ltd. inasmuch as, its Wind Power Project shall stand halted. Accordingly, the application preferred by the petitioner under Section 212 of the Act was rejected by the trial court vide order dated 18.2.15. Aggrieved thereby, the petitioner preferred an appeal before the RAA, Barmer, which stood dismissed vide order dated 22.4.15. The revision petition preferred by the petitioner against the appellate order dated 22.4.15 stands rejected by the Board of Revenue by the order impugned. Hence, this petition.

Learned counsel appearing for the petitioner submitted that as per the report of the Inspector Land Record, the fencing of the petitioner''s agriculture field has been removed in the eastern side and the Company M/s. Inox Renewables Ltd. has installed the machinery including vanes at the site. Learned counsel submitted that khasra No. 36 is comprised of 100 bighas land whereas only 30 bighas land has been allotted to the said Company. Learned counsel submitted that ignoring the site inspection report available on record, the findings arrived at by the trial court, affirmed by the Appellate Court and the Board of Revenue, are ex facie perverse. Learned counsel submitted that if the respondents are not restrained from raising construction over the petitioner''s land, the petitioner is bound to suffer irreparable loss. It is submitted that the petitioner being a recorded khatedar of the land in question, she has strong prima facie case in her favour and the balance of convenience is also in her favour.

On the other hand, the counsel appearing for the respondent submitted that as a matter of fact, the suit preferred by the petitioner suffers from non joinder of necessary parties inasmuch as, the petitioner has filed the suit against the officials of the Company by name and the Company has not been impleaded as party defendant in the suit. Learned counsel submitted that the concurrent findings arrived at by the courts below after due consideration of the material on record, cannot be said to be capricious or perverse so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. Learned counsel submitted that the Company has not encroached upon the petitioner''s khatedari land ad measuring 48.8 bighas, comprising khasra No. 36 and the installation of the Wind Mill has been undertaken by the Company on its own land including the land measuring 35 bighas comprising khasra No. 36 of village Khelana allotted to it by the District Collector, Jaisalmer, vide order dated 18.12.13. Learned counsel submitted that as a matter of fact, the petitioner is having khatedari rights over the land measuring 48.8 bighas comprising khasra No. 36, however, while encroaching upon the Government land, he is claiming right over 60 bighas of land. Learned counsel submitted that in absence of any evidence on record establishing that the petitioner Company has encroached upon the khatedari land of the petitioner, the order impugned passed by the trial court, refusing to grant injunction, affirmed by the appellate court and the Board of Revenue, cannot be faulted with.

Learned Government Counsel has supported the concurrent findings arrived at by the courts below as aforesaid. It is submitted that the Company was put into possession of the land allotted to it and it has not encroached upon any part of the petitioner''s khatedari land. Learned Government Counsel submitted that the petitioner''s possession over her khatedari land ad measuring 48.8 bighas comprising khasra No. 610/36 shall be protected.

I have considered the rival submissions and perused the material on record.

It is settled law that a party is not entitled to an order of injunction as a matter of right or course. Grant of 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 the plaintiff has strong prima facie case in his favour and unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit.

Further, in the matter of grant of temporary injunction, the jurisdiction of the appellate court is not co-extensive with that of the trial court. The appellate court can interfere with an order of the trial court granting or refusing injunction only when it is satisfied that (i) the trial court has acted contrary to law or (ii) has acted arbitrarily, or (iii) that the finding of trial court regarding the three requirements of grant of injunction are perverse or capricious or (iv) that there has been a misreading of the pleadings of evidence. (vide RSEB vs. Mool Chand Jangir, 1993 (3) WLC, 388.)

In Skyline Education Institute (Pvt.) Ltd. Vs. S.L. Vaswani and Another, AIR 2010 SC 3221 : (2010) 3 JT 136 : (2010) 42 PTC 217 : (2010) 1 SCALE 83 : (2010) 2 SCC 142 : (2010) 1 UJ 323 : (2010) AIRSCW 628 : (2010) AIRSCW 5905 , the Hon''ble Supreme Court after considering its various earlier decisions dealing with the scope of appellate court''s power to interfere with the discretion exercised by the court of first instance in granting or refusing the prayer for temporary injunction observed:

"The ratio of above noted judgments is that once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter, it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity."

In the backdrop of position of law noticed as above, adverting to the facts of the present case, it is to be noticed that the petitioner/plaintiff is having khatedari right over the land ad measuring 48.8 bighas comprising khasra No. 610/36, however, even as per the site inspection report heavily relied upon by the petitioner, the fencing of the petitioner agriculture field covers 60 bighas land. There is absolutely no explanation available on record as to how the petitioner has come into possession of the land beyond her khatedari land ad measuring 48.8 bighas. In any case, there was no material placed on record before the court below showing that the respondents have encroached upon the petitioner''s khatedari land ad measuring 48.8 bighas land. A perusal of the order impugned reveals that all the relevant aspects of the matter have been considered by the courts below. In absence of any material on record, showing that respondents have encroached upon the khatedari land of the petitioner, in the considered opinion of this court, the concurrent findings arrived at by the trial court and the appellate court, affirmed by the Board of Revenue, cannot be said to be capricious or perverse, so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.

In the result, the petition fails, it is hereby dismissed. No order as to costs.