Allian Duhangan Hydro Electric Project vs Kishani Devi and Another

Deepak Gupta, J.—By means of this petition, the petitioner has laid challenge to the order dated 15th May, 2010 passed by learned Trial Court in C.M.A. No. 136-VI/10 in Civil Suit No. 100 of 2010 titled Kishni Devi v. A.D. Hydro Electric Project Co. Ltd., pending in the court of Civil Judge (Senior Division), Lahaul Spiti, Kullu.

Briefly stated, the facts of the case are that the respondents (herein after referred to as the plaintiffs) filed a suit before the learned Trial Court praying for a decree of permanent prohibitory injunction restraining the defendant from laying electric power line through her land and above her newly constructed house in Khatoni No. 141 min/181 min bearing Khasra No. 1083 measuring 03-65 hectares. The allegations made by the plaintiff in the suit were that the defendant No. 1 was setting up a Hydro Project in Village Prini in Tehsil Manali and also laying a transmission line. According to the plaintiffs, on 11th May, 2010 the defendant through its servants and contractors started digging the land near the land of the plaintiffs with a view to raise an electric tower. The case of the plaintiffs was that originally the survey was conducted on some other place, but the line was being taken through and above the land of the plaintiffs.

This suit was filed on 13th May, 2010. Alongwith the suit an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, praying that the defendants/respondents be restrained from raising such transmission line during the pendency of the suit, was also filed. Both the suit as well as the application were taken up for consideration on 14th May, 2010, when notice was ordered to be issued to the respondent for 15th May, 2010 itself. On 15th May, 2010 Sh. Anuj Sharma, Advocate put in appearance on behalf of the respondent. The order passed on 15th May, 2010 on the stay application reads as under:

15.5.2010

Present:- Sh. P.C. Thakur, ld. Counsel for the petitioner.

Sh. Anuj Sharma, ld. Counsel for the respondents.

To come up for reply. Put up on 15.6.2010. In the meanwhile, the respondents are directed to maintain status quo over the suit land and the house as well.

Sd/ (Mukesh Bansal) Civil Judge (Senior Division), Lahaul- Spiti at Kullu, H.P.

In the main suit, similar time was given to file written statement. Though the case was listed on 15th June, 2010, it appears that the written statement as well as reply to stay application were prepared on 26th May, 2010 and an application was also filed that the matter be preponed and the interim stay order be vacated. The written statement as well as the reply was filed on 29th May, 2010. Notice of preponment of the case was ordered to be issued to the respondents/plaintiffs. Plaintiffs sought time to file reply and only two days time was granted and matter was listed on 4th June, 2010. The application for preponment was allowed on 4th June, 2010 and the matter was ordered to be listed for hearing on 5th June, 2010. Both the suit as well as application for stay were taken up and it was ordered that the application for stay would be taken up for hearing on 14th June, 2010. In the main suit it was ordered that case be listed for filing replication, if any and framing of issues on 14th June, 2010. It appears that on 11th June, 2010, notice was affixed on the notice board of the learned trial court that all the matters fixed for hearing on 14th June, 2010 would be taken up on 29th June, 2010. On 29th June, 2010, the Presiding Officer was on leave and the matter was fixed for proper orders on 6th August, 2010. On 6th August, 2010, Sh. Varun Kant Sharma, Advocate vice counsel appeared for the respondents and the following order was recorded:

6.8.2010

Present: Sh. P.C. Thakur, Advocate for the petitioner.

Shri Varun Kant Sharma, Advocate, vice counsel for the respondents.

The case is taken up today for proper order. Today it is stated at the Bar by learned vice counsel for the respondents that order dated 15.5.2010 stands vacated by the Hon''ble High Court of Himachal Pradesh in the case. Put up for further proceedings in the matter for 16.8.2010.

Sd/ (Yogesh Jaswal) Civil Judge (Senior Division) Lahaul-Spiti at Kullu, H.P.

It would be pertinent to mention that in another writ petition filed by respondent Corporation in this Court being CWP No. 513 of 2010 titled A.D. Hydro Power Ltd. v. State of H.P. and Ors. this Court on 17.3.2010 had passed the following order:

The petitioner may also apprise the Civil Courts regarding the ouster of jurisdiction of Civil Court in exercise of the powers by the Telegraph Authority under the Indian Telegraph Act, 1885 so that the developmental project may not be unnecessarily and unduly delayed. We direct the State Government and all the authorities concerned to render a helping hand to the petitioner so that the developmental project, which was originally scheduled to commence commercial operation on 1.6.2008, is able to commence the commercial production at least by 1.6.2010.

This Court directed, that the petitioner should apprise the Civil Courts regarding the ouster of jurisdiction of Civil Court in exercise of the powers by the Telegraph Authority under the Indian Telegraph Act, 1885 so that the developmental project may not be unnecessarily and unduly delayed. No doubt, the petitioner alongwith the written statement had filed a copy of this order, which has been quoted hereinabove. This however does not mean that the Trial Court is not required to examine the matter. The defendant Corporation, cannot just throw the order of this Court at the face of the Trial Court and tell it to act promptly. The Court has a right to examine whether the order passed by the higher court is applicable to the facts and circumstances of the case. This is something which the Trial court must do. Merely because the Trial court does not on the very same date dismiss the stay application, does not entitle the defendants to directly approach this Court. I have quoted, above, the orders passed by learned Trial Court, which show that the Trial Court was not oblivious to the urgency of the matter and fixed the case on day to day basis. In case on 14th June, 2010, the Trial Court was not available, the remedy was available to the petitioner to approach the learned District Judge to either transfer the case to some other Court, which was available, so that the stay application could be decided or in the alternative the District Judge himself could have heard the said application and vacated the orders, if he felt that the same were without jurisdiction.

The powers vested in this Court under Article 227 of the Constitution of India are not meant to invoked in each and every case. If an alternative, efficacious, remedy is available to a party, the same must be availed. There is no doubt that the powers of this Court under Article 227 are very vast and in appropriate cases, this Court may even at the very initial stage interfere in the proceedings of the Trial Court, but this can only be done where it appears that the Trial Court is paying scant attention to the orders passed by this Court. In the present case this is not the position.

Reliance has been placed by Ms. Jyotsna Rewal Dua, Advocate on certain judgments. First is the judgment of a learned Single Judge of this Court in Pritam Singh and Others Vs. Charan Dass Dogra and Others, wherein the Court held as follows:

Keeping regard to the above noted pronouncements as to the scope of authority of High Court under Article 227 would in any case be amenable where there is a question of exercise or non-exercise of jurisdiction or of an error apparent on the face on the record.

Further reliance has been placed on a decision of Gauhati High court in Contemporary Target Pvt. Ltd. and Others Vs. M.B. Enterprises and Others, wherein the court held as follows:

To sum up, (1) that where the court or tribunal passed an order without any jurisdiction and violate the basic fundamental principles of law or where a patent or flagrant error in procedure has been committed, the High court can intervene under Article 227 of the Constitution, (ii) In a suit like the case of the present nature where a Caveat was duly lodged and the receipt of the notice of the Caveat was duly filed in the court and ad interim injunction granted without a notice of heaving of the application on the caveator would be an order passed without any jurisdiction and in flagrant violation of basic principles of law and fair play and would be justified in invoking the extraordinary jurisdiction of the Court under Article 227 of the Constitution of India, despite the existence of an alternative legal remedy.

Ms. Dua also placed reliance on the judgment of the Apex Court reported in State of West Bengal and Others Vs. Samar Kumar Sarkar, wherein Apex Court held as follows:

In Bathutmal Raichand Oswal v. Laxmibai R. Tarta this Court again reaffirmed that the power of superintendence of the High court under Article 227 being extraordinary was to be exercised most sparingly and only in appropriate cases. The High Court''s function is limited to see that the subordinate court or tribunal functioned within the limits of its authority. The Court further said that the jurisdiction under Article 227 could not be exercised "as the cloak of an appeal in disguise.

On the other hand Sh. Neeraj Gupta, learned Counsel for the respondents has cited the judgment of Apex Court in A Venkatasubbiah Naidu v. Chellappan and Ors. AIR 2000 Supreme Court 3032, wherein it has been held as follows:

It is acknowledged position of law that no party can be forced to suffer for the inaction of the Court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39 of the Code in terms of Order 43, Rule 1 of the code. He cannot approach the appellate or revisional Court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party who does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39, Rule 3-A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate Court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate Court in complying with the provisions of Rule 3-A. In appropriate cases the appellate Court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including making adverse entry in his ACRs. Failure to decide the application or vacate the ex parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rules.

Now what remains is the question whether the High court should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies. Though no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned single judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High court had chosen to entertain the revision petition.

There can be no quarrel with the preposition of law laid down herein above. In fact I have already held above that in case of gross illegality being committed by the trial court, this Court may even interfere at the notice stage itself. However, in the present case, both the parties were duly represented by counsel. The learned Presiding Officer of the Trial Court was taking up the matter on urgent basis. We cannot forget the fact that the trial courts in our country are overburdened and it is not possible for them to take up each and every case on day to day basis. It is true that for the petitioner, this may be the most important case, but the Trial Court is dealing with other cases also which are equally important. The Trial Judge also has to deal with the criminal cases where the liberty of the citizens is involved and in these circumstances, the learned Trial Court itself has to fix the dates. In this case it has not been shown that any gross illegality was committed by the learned Trial Court, which required interference by this Court.

As has been pointed out by the Apex Court in Naidu''s case supra, if a party is aggrieved by any such order, it has two remedies available. It can either approach the learned Trial Court for vacation of the said order or approach the Appellate Court and even if the application is not finally decided, the aggrieved party may directly approach the Appellate Court for vacation of the order. The Apex Court in no uncertain terms has stated that High Court should normally direct a party to first avail the alternative remedy available to it under ordinary law before resorting to a constitutional remedy. Neither of those two courses was followed by the petitioner, who directly approached this Court. In my view the petition, is therefore not maintainable.

When the case was filed before this Court an ex parte order was granted by the learned single Judge staying the operation of the order as quoted above. On 6th August, 2010 a statement was made that the order of the learned trial court dated 15th May, 2010 stands vacated. It may be true that learned Counsel may have misunderstood the import of the order of this Court, but the fact is that by this means the suit of the plaintiffs was virtually rendered infructuous. I have been informed at the bar, which fact has not been disputed, that transmission line has now been laid. At this stage, it is impossible to put the clock back. The transmission line cannot be ordered to be removed.

The question that now arises is that how should the plaintiff be compensated? In view of the conduct of the petitioner, I feel that heavy costs should be imposed upon the petitioner for having invoked the jurisdiction of this Court without exhausting the remedy available to it. Accordingly costs of Rs. 25,000/- are imposed on the petitioner, which shall be paid by the petitioner Corporation to the plaintiffs/respondents. The learned Court below shall after taking cognizance of orders of this Court decide whether it has jurisdiction to proceed with the case or not. In any event, since the transmission line has already been laid, no prejudice is going to be caused to any party, even if the case proceeds.

It is made clear that the costs ordered to be paid shall not be taken into consideration, while assessing compensation, if any, payable to the plaintiff under any other law.

The petition is disposed of in aforesaid terms. The parties through their counsel are directed to appear before the learned trial Court on 5th October, 2010. The Registry is directed to send back the record and to ensure that the same reaches the Trial Court well before the next date.