IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 OP(C).No. 213 of 2010(O) ------------------------ CMA.3/2010 of SUB COURT, PALA OS.73/2009 of MUNSIF COURT, KANJIRAPPALLY (IA 393/2009) .................... PETITIONER/APPELLANT/PLAINTIIF ------------------------------ P.A.JOSE,S/O.ANTONY, KEEKKIRICKATTU HOUSE, KARICKATTOOR KARA, MANIMALA VILLAGE, KANJIRAPPALLY TALUK BY ADV. SRI.A.K.ALEX SRI.P.KURUVILLA JACOB RESPONDENTS: DEFENDANTS --------------- 1. VILLAGE OFFICER, VILLAGE OFFICE,MANIMALA-686509 2. TAHSILDAR, TALUK OFFICE, KANJIRAPPALLY-686507 3. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, COLLECTORATE P.O.,KOTTAYAM-686001 4. K.S.E.BOARD, REP.BY ITS SECRETARY K.S.E.BOARD, VYDHUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM 695001 5. EXECUTIVE ENGINEER, K.S.E.BOARD,TRANSMISSION DIVISION, POOVATHURUTHU P.O.,KOTTAYAM 686001 ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R4-5 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.213 of 2010 --------------------------------------- Dated this 06th day of October, 2010 JUDGMENT When the State Electricity Board on the strength of certain government orders allegedly conveying title and possession of a plot of land in R.S.No.3/7 of Manimala village started with construction of a sub station to meet power requirements of the Manimala-Vellavoor drinking water project. Petitioner, claiming to be the title holder in possession of the said property approached learned Munsiff, Kanjirappally with O.S.No.73 of 2009 praying for a decree for prohibitory injunction to restrain the Kerala State Electricity Board, its officials, the Government and its officials from trespassing into the said property, committing waste and constructing the sub station. Petitioner also filed I.A.No.393 of 2009 in the suit praying for an order of temporary injunction. He claimed that the suit property belonged to him as per partition deed No.2406 of 1975. In support of his contention, he produced a copy of that partition deed and a receipt dated 01-03-1990 for payment of revenue allegedly for the disputed land. Certain other documents were also produced such as communications between the District Collector and O.P(C).No.213 of 2010 : 2 : subordinate officials. Per contra, it was contended by respondents that the property where the sub station is intended to be constructed belonged to the State Government which was assigned in favour of the State Electricity Board on payment of market value as per Exts.B1 and B2 produced in the trial court. Learned Munsiff after consideration of the materials on record found that no prima facie case is made out by petitioner, there is dispute regarding identity of the property and at any rate no irreparable loss or injury will be caused to the petitioner since even if it is assumed that petitioner might ultimately succeed he could be compensated in terms of money. Petitioner took up the matter in C.M.A.No.3 of 2010 where also he was not successful in getting an order of temporary injunction. Learned Sub Judge has dismissed the C.M appeal against which this petition is filed seeking invocation of the supervisory power under Article 227 of the Constitution. Learned counsel for petitioner contends that there is sufficient material on record to show that petitioner is in possession of the suit property. According to the learned counsel, Exts.A1 and A2 produced in the trial court together with receipt for payment of revenue dated 11-06-2010 produced along with this petition are sufficient to show a prima facie case of title and O.P(C).No.213 of 2010 : 3 : possession of petitioner over the suit property. The further contention is that though it is contended by respondents that property belonged to the State Government and it was assigned to State Electricity Board on payment of market value, documents produced are not sufficient to substantiate that contention and at any rate, such assignment is in violation of the Kerala Land Assignment Act and the Rules. It is contended that Encumbrance certificate produced by petitioner shows that there is no such assignment in favour of the State Electricity Board. Learned counsel states that before the suit property is identified by proper measurement, it is unjust to permit respondents to proceed with construction. It is also pointed out by learned counsel that when the matter came up for consideration in this court in the form of a writ petition or appeal arising therefrom a representation on behalf of State Electricity Board was made that construction (of the sub station) is in full swing in the disputed property but until now no such construction has started and false representation was made before this court to get writ petition or appeal dismissed. What happened is only cutting and removal of certain trees standing in the disputed property. Learned counsel made a fervent request that construction in the property may be O.P(C).No.213 of 2010 : 4 : prevented until dispute is resolved. Learned Government Pleader appearing for the State Government and its officials and learned counsel for the State Electricity Board and its officials contend that the suit is not for a declaration of title and instead it is merely based on possession claimed by petitioner, so far as Exts.B1 and B2 are not set aside it would remain in force and convey title to the State Electricity Board regarding the disputed property. The further contention is that if at all construction is completed grievance of petitioner can be redressed by his seeking compensation in the form of market value or otherwise as circumstances permitted. Learned counsel appearing for the State Electricity Board has after taking instruction from Sri.Prasad N.S, Assistant Engineer, Transmission and Construction Division (who is present in court) submitted that as regards trees standing in the property to be cut and removed, a mahazar has been prepared by the Social Forest Department which has been forwarded to the Chief Engineer of the State Electricity Board. Learned counsel expressed willingness to produce a copy of that mahazar within the time to be stipulated by this court. It was contended that since there was an order of status quo from the trial court and on account of pendancy of writ O.P(C).No.213 of 2010 : 5 : petition and appeal the entire work could not be started and if the work is not completed it would affect the supply of drinking water to a vast area involving Manimala and Vellavoor and in public interest, this court may not interfere with the construction process to be started in the suit property. The suit is merely for prohibitory injunction based on possession. Petitioner is relying on Ext.A1 produced in the trial court which is the copy of partition deed No.2406 of 1975. It is the contention of learned counsel that as per that partition deed petitioner got 8 and odd acres a portion of which is the suit property described as 40 cents. It is also the contention of learned counsel that petitioner's father had surrendered free of cost 60 cents adjascent to the suit property on its southern side for construction of village office and panchayath office and that suit property is part of the remaining property belonging to the petitioner as per the partition deed. Ext.A2 produced in the trial court and receipt for payment of revenue dated 11-06-2010 produced in this proceeding are also pressed into service to prove the claim of possession. The report of Advocate Commissioner also is referred to by the learned counsel. Ext.P12 is the report of Advocate Commissioner where he has referred to O.P(C).No.213 of 2010 : 6 : the descriptions of the suit property and the adjoining properties. The suit property is shown as 'defg' in the plan attached to Ext.P12, report which is comprised in R.S.No.3/7. On its immediate south is another plot comprised in R.S.No.3/7 which according to the petitioner was surrendered by his father free of cost and east of that plot is comprised in R.S.No.3/6 which according to the petitioner was surrendered by his father for construction of village office and panchayath office. Commissioner has shown the plot of land towards east of the suit property as belonging to the petitioner. On the other hand, Exts.B1 and B2, government orders allegedly assigning the disputed property in favour of the State Government on payment of market value also refers to the property comprised in survey number 3/7. I find from the purchase certificate produced by the learned Government Pleader for my perusal that it concerns 19.73 ares in R.S.No.3/7 bounded by property of petitioner on the north and east, property of village office, Manimala on the south and property of one Ouseph on the west. It is yet to be decided whether petitioner has title or possession over the suit property. Learned counsel for petitioner has raised a contention that there is no proper assignment of land in favour of Kerala Electricity O.P(C).No.213 of 2010 : 7 : Board by recourse to the provisions of the Land Assignment Act and the Rules but, I am afraid that is a matter not required to be gone into in this proceeding since that is a matter between the State Government and Electricity Board. In this proceeding the State Government as well as its officials are made parties. Hence the question whether there is a valid conveyance of property by the State Government in favour of the State Electricity Board is not relevant for decision here. So far as possession claimed by petitioner is concerned, merely based on report of the Advocate Commissioner (Ext.P12) no finding is possible at this stage either way particularly in the light of Exts.B1 and B2 which I stated concerned 19.73 ares in R.S.No.3/7 within the boundaries stated above. Learned Munsiff has noted that petitioner claimed to be in possession of the property as per partition deed No.2406 of 1975 and apart from that document the only document petitioner produced in the trial court was Ext.A2, receipt for payment of revenue dated 01-03-1990 and though suit was instituted in the year 2009, he was not able to produce any receipt for payment of revenue for a period of about 9 years. No doubt, receipt dated 11-06-2010 is now pressed into service having produced in this proceeding but, O.P(C).No.213 of 2010 : 8 : I am not very much impressed by that receipt which has been obtained after Learned Munsiff disposed of the application for injunction. I must also bear in mind the scope and extent of supervisory jurisdiction of this court under Article 227 of the Constitution. Temporary injunction is a matter within the discretionary jurisdiction of the trial court. Even the appellate court should be slow in interfering with the discretionary order passed by the trial court in the matter of grant or otherwise of the injunction and the power of appellate court to interfere in the matter is only when the discretionary jurisdiction has been exercised in a capricious, arbitrary or perverse manner. Even the appellate court shall not interfere with the discretionary order passed by the trial court merely for the reason that a different view is also possible. Situation here is worse as the appellate court confirmed order of trial court. I do not think that it is necessary to exercise the supervisory jurisdiction as if the courts below ought to have been kept within their bounds in the matter of exercise of the discretionary power. Then the question arise whether irreparable loss or injury will be caused to the petitioner if injunction prayed for is not O.P(C).No.213 of 2010 : 9 : granted and where exactly is the balance of convenience. On the one side, it is the individual right of petitioner claiming possession or even title with the disputed property and on the other side, it is public interest a sub station is to be constructed to provide drinking water for people of the locality. The necessary scheme for that purpose has already been sanctioned by the State Government or State Electricity Board as the case may be and of course whatever the reason thereof and the representation made in this court in the writ petition or appeal, construction of the sub station has not started. Learned counsel for State Electricity Board and its officials have an explanation that it was because of the order of status quo issued by the trial court and for other reasons. But, the mere fact that construction has not started by itself is not sufficient to stop construction. Learned Munsiff has pointed out that if at all petitioner is affected by construction of the substation, he can be compensated in terms of money. If ultimately it is revealed that the property or any portion of it belonged to the petitioner, it is well within the power of the court to award compensation in terms of money and even otherwise if it is found ultimately the property in whole or part belonged to the petitioner, it is within O.P(C).No.213 of 2010 : 10 : the power of the State Government to acquire the land in accordance with the provisions of the Land Acquisition Act. That being the situation, I am not persuaded to think that at this stage I should interfere with the order under challenge and prevent construction of sub station. I do not find reason to interfere with the order/judgment under challenge. At the same time, interest of petitioner has to be protected if ultimately he is able to prove that the whole or part of the property where the sub station is being constructed belonged to him in title. In such a situation it will be open to the petitioner to seek compensation in terms of money based on market value or for the State Government to initiate acquisition proceedings under the provisions of the Land Acquisition Act. So far as the tree cutting is concerned, I have got an assurance from learned counsel for State Electricity Board that regarding the number of trees standing in the suit property a mahazar has been prepared by the Social Forest Department which has been forwarded to the Chief Engineer of the State Electricity Board. I direct the State electricity Board to produce a copy of that mahazar in the trial court within two weeks from this day so that if necessary, petitioner can claim compensation for tree cutting also at the O.P(C).No.213 of 2010 : 11 : appropriate stage. That I feel is sufficient to allay the apprehension of petitioner. Having regard to the facts and circumstances stated and in the light of the directions which I have made above, I find no reason to interfere with the impugned order/judgment. With the direction made above this petition is dismissed. I make it clear that it will be open to the petitioner to claim compensation on the basis of market value if that is provided under law, in case his title over the suit property or any part of it is upheld. (THOMAS P JOSEPH, JUDGE) Sbna/-