IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER 03.11.2008. S.B. CIVIL WRIT PETITION NO.5713/2007 Ram Lal & Ors. Vs. ADJ, Gangapurcity & Ors. HON'BLE MR. JUSTICE DALIP SINGH Shri Shiv Charan Gupta, for the petitioner. Shri M.M. Ranjan, for the respondent. Shri R.S.Shekhawat, Deputy Government Advocate. Heard learned counsel for the parties. This writ petition is directed against the judgment of the learned appellate court dated 23.7.2007 by which the learned lower appellate court has set aside the order dated 2.5.2007 passed by the learned trial court on the application filed by the plaintiff petitioner under order 39 rules 1 and 2 C.P.C. The grievance which has been raised by the plaintiff petitioner is that contrary to the plans prepared for construction of the canal for taking the water for irrigation upto the tail the respondents Nos. 2 to 4 have constructed the canal on the land of the petitioner without having acquired the land as would be evident from the notification for acquisition of the land and the award passed by the Land Acquisition Officer for award of compensation to be paid in the event of acquisition. The learned counsel for the petitioner plaintiff has raised the same objections which find place in the order passed by the learned court below which relate to re-appreciation of the material on record. The learned trial court allowed the application filed by the plaintiff petitioner but while allowing the application and considering the question of prima facie case in favour of the plaintiff petitioner, in the conclusion the learned trial court could not arrive at any definite finding in favour of the plaintiff petitioner. The relevant portion of the finding as mentioned in para 8 of the order of the learned trial court court read as follows : '' लेिकन हः तगत ूकरण मɅ जहां एक ओर ूाथȸगण Ʈारा ǒववािदत नहर को ूः ताǒवत ः वीकृत नÈ शे के अनुसार न बनाया जाकर दसरे ू ः थान पर बनाना कहा जा रहा है, वहȣं दसरȣ ू ओर ǒवप¢ीगण संÉ या 5 लगायत 10 एवं राÏ य सरकार Ʈारा ǒववािदत नहर का िनमा[ण राÏ य सरकार से ः वीकृत योजना के अनुसार हȣ िकया जाना बताया गया है। इस तरह ǒववािदत नहर राÏ य सरकार कȧ ः वीकृत योजना के अनुसार िनधा[ǐरत ः थल पर बनाई जा रहȣ है, या नहȣं, तथा ǒवप¢ी राÏ य सरकार Ʈारा जो नÈ शा शेस ूः तुत िकया है, वह ः वीकृत पासशुदा है, अथवा नहȣं, इन सारवान ूँ नɉ का िनधा[रण मूल वाद मɅ उभय प¢ कȧ साआ य आने के पँ चात हȣ तय िकया जाना सà भव हो सेगा। अत: प¢कारान के मÚ य ǒववाद कȧ ǒवषय वः तु को Ú यान मɅ रखते हएु मौके को यथाǔः थित मूल वाद के िनण[य तक यथावत रखा जाना Û यायोिचत पाते हɇ एवं इस ǒबÛ दु का िनधा[रण इसी ूकार िकया जाता है।'' A perusal of the above findings goes to show that the learned trial court could not arrive at any definite conclusion regarding the prima facie being case in favour of the plaintiff petitioner. It is settled law that while considering the case for grant of temporary injunction one of consideration is the satisfaction of the court regarding the prima facie case being in favour of the applicant and the same as assumes great importance and the burden of proving the same lies upon the plaintiff petitioner who alleges the facts in his favour which even as per the above finding the plaintiff petitioner could not prove before the trial court. Likewise the second aspect for consideration for grant of temporary injunction is of balance of convenience and third is of irreparable loss. Admittedly the injunction which has been sought by the plaintiff petitioner is in respect of the construction of irrigation canal for taking water upto the tail which is for the benefit of the favouring community as a whole. There is an element of public purpose the benefit for community as a whole. The injunction restraining the State from carrying out its development activities for the benefit of the people at large would hamper public interest as compared to the question of irreparable loss and balance of convenience qua the plaintiff alone. In the facts and circumstances therefore even other consideration of balance of convenience also, in the facts and circumstances, cannot be said to lie in favour of the plaintiff petitioner. Having held so the order that has been passed by the learned lower appellate court may be taken a note of. The learned lower appellate court with a view to protect the interest of the petitioner plaintiff has passed the following order : ''इसके साथ यह भी आदेश िदया जाना उिचत है िक ूः ताǒवत टेल सब माईनर (छोटȣ नहर) का िनमा[ण वादȣगण/रेः पोडेÛ ट-गण के खसरा नंबर 438,439436 व 434 के सहारे सहारे तक उÈ त टेल सब माईनर (छोटȣ नहर) का पÈ का िनमा[ण िकया जावे तािक रेः पोडेÛ ट- गण/वादȣगण के खेतɉ मɅ सीम नहȣं आ पावे व पानी का अपå यय नहȣं हो पावे।'' A perusal of the above goes to show that the learned appellate court while vacating the order of temporary injunction has taken care to protect the interest of the petitioner. In the facts and circumstances therefore I am not inclined to interfere with the order passed by the learned lower appellate court dated 23.7.2007. However, in case the learned trial court comes to the conclusion that the canal in question has been constructing on any portion of the land of the plaintiff petitioner without the same having been acquired, the plaintiff petitioner would be en titled to seek compensation for the use of the land for the purpose of canal at the market rate prevailing on the date of judgment and decree passed by the learned trial court from the defendants. In the meanwhile, if during the pendency of the suit, in case the respondents have on their own without acquiring the land of the petitioner altered the original sanctioned plans for construction of the canal over any portion of the land belonging to the plaintiff it would be open for the respondents to issue fresh notification for acquisition of the same even during the pendency of the suit and pass an award for compensation as per law. Subject to the above, this writ petition stands disposed of. (DALIP SINGH),J. Ramchandrkhatri,PS