Bhagwan Dass and others vs Surinder Kumar and another

A.L. Bahri, J.—This is plaintiffs'' revision petition challenging order dated February 12, 1987 passed by the Additional District Judge, Karnal accepting the appeal of Surinder Kumar defendant and dismissing the application for the grant of ad interim injunction during pendency of the suit.

Bhagwan Dass and others, plaintiffs, claimed to be joint owners along with Surinder Kumar defendant of land measuring 31 Kanals 11 Marias situated in village Assan Kalan. Surinder Kumar is cousin brother of Bhagwan Dass. The relations between the parties are stated to be strained. Surinder Kumar, who was having political background, got a tubewell connection sanctioned in his name from the Haryana State Electricity Board. He wanted to have the tube-well in the joint land stated above. The Electricity Board is required to put up some electric poles to give the said electric connection. Those poles were to be erected in the land which is in possession of the plaintiffs. Apprehending that their crops would be damaged, the plaintiffs filed the present suit. A miscellaneous application was also put in praying for ad interim injunction restraining the defendants Surinder Kumar and the Electricity Board from erecting the electric poles in the suit land. The trial Court on April 3, 1986 passed the order restraining the defendants from erecting such electric poles through the suit land. After hearing both the parties, the trial Court passed an order on October 1, 1986 to maintain status quo over the site in dispute till the final disposal of the suit. This order was successfully challenged in the appeal by the defendant Surinder Kumar.

Learned counsel for the petitioners has argued that the appellate Court should have been slow in upsetting the discretionary order passed by the trial Court. The balance of convenience was in favour of the plaintiffs whose land was going to be damaged along with the crops by employees of the Electricity Board. Since there was resistence on the spot for erecting electricity Poles, it was incumbent upon the Electricity Board to move the District Magistrate for appropriate orders. The defendants Surinder Kumar and the Electricity Board could not erect electric poles in the land is possession of the plaintiffs illegally and forcibly. I have given due consideration to these aspects. However, I find no ground to interfere with the order passed in the appeal. No doubt, reading of provisions of sections 10 and 16 of the Telegraph Act makes it clear that if there is resistance, the matter is to be taken to the District Magistrate for permission and if, in spite of the order of the District Magistrate, the resistence persists, the offender can be prosecuted. It was so held by the Full Bench of Kerala High Court in Bharat Plywood and Timber Products Private Ltd. Vs. Kerala State Electricity Board Trivandrum and Others, . However, the Full Bench also observed that conferment of rights to the user of the land u/s 10 of the Telegraph Act is reasonable and is in the interest of the general public and does not infringe fundamental right under Article 19 of the Constitution. In the present case, it is to be determined as to whether erecting of electric poles in order to give electric connection to the defendant Surinder Kumar by the Electricity Board is viable and if the same is not allowed, who is going to suffer. As far as the first part is concerned, as observed in the lower appellate Court''s order, there are two transformers from where connection could be given to Surinder Kumar defendant. At present, the Electricity Board wants to give connections from 25 K.V. Transformer where existing load is only 9 B.H.P. This would mean that even after allowing the connection, there would be capacity for other load and the costs would be Rs. 8,665/-. The other transformer is 63 K.V. and the service line would cost about Rs. 12,000/-, the distance involved is much more. Secondly, if electric connection is not allowed to Surinder Kumar, obviously the land in his possession is going to suffer damage on account of loss of water.

As far as the plaintiffs'' case is concerned, by erecting electric poles in the land in their possession, they are not likely to suffer any damage as the land would always be cultiviable in spite of the electric poles. As already stated above, the placing of electric poles in the land is in the interest of the general public.

No doubt, the appellate Court in the matter of grant of interim injunction is usually slow to interfere with the discretionary orders passed by the trial Court but the principle cannot be lost sight of that the High Court is also not to interfere with the lower appellate Court''s order which is within its jurisdiction and even if the order is right or wrong or in accordance with law or not unless it has exercised its jurisdiction illegally or with material irregularity. It was so held by the Supreme Court in The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and another v. Ajit Prasad Tarway Manager (Purchase and Stores), The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad Tarway, In the present case, it has not been shown as to how the lower appellate Court has exceeded the jurisdiction in passing the impugned order or had committed any material irregularity.

It may further be observed that if some damage is likely to be caused to the plaintiffs by erecting electric poles, they can be appropriately compensated u/s 10, Proviso (d), of the Telegraph Act.

For the reasons recorded above, I find no merit in the revision petition and the same is dismissed leaving the parties to bear their own costs.