1 cra 28-2011.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 28 OF 2011 CONVERTED INTO WRIT PETITION NO. 938 OF 2011 Jaigad Power Transco Limited ...Petitioner vs Ashok Ramchandra Maske ...Respondent Mr.F.E. Devitre, Senior Counsel with Mr.Amit Jamshandekar with MR.S. Shrivastva with Mr.Sachin Pandey i/b. M/s.D.H. Law Associates for the Petitioner. Mr.Ravindra Sankpal for the Respondent. CORAM : B.R. GAVAI, J DATED : FEBRUARY 9, 2011. P.C. : 1 By consent of parties, the appeal is taken up for hearing. 2 The appeal challenges the Order dated 9th December, 2010 thereby allowing the appeal filed by the respondent-plaintiff and granting an order 2 cra 28-2011.sxw of injunction thereby reversing the order passed by the Civil Judge, Junior Division, Patan, dated 9th July, 2010, vide which the application filed by the respondent-plaintiff came to be rejected. 3 Heard Shri Devitre, learned Senior Counsel for the petitioner and Shri Ravindra Sankpal, learned Counsel for the respondent. 4 The respondent-defendant has been granted licence for supply of electricity and vide Notification dated 13th August, 2009 issued under the provisions of Section 164 of the Electricity Act, has been bestowed with all the powers which the telegraph authority possesses under Part III of the Telegraph Act, with respect to placing of telegraph lines and posts for the purposes of a telegraph. The respondent is accordingly erecting the towers for the construction of the said line for which it had been granted the licnece. One of such towers affects the land of the present 3 cra 28-2011.sxw respondent-plaintiff. The plaintiff has, therefore, filed a suit for permanent injunction restraining the defendant from erecting the tower on the suit land. Along with the suit, an application under Section 39 Rule 1 and 2 of the CPC for temporary injunction came to be filed. The same was rejected. Being aggrieved thereby, the appeal was preferred before the learned District Judge, The appeal is allowed. Being aggrieved thereby, hence the present petition. 5 Shri Devitre, learned Senior Counsel for the petitioner submits that the learned appellate court has grossly erred in interfering with the well reasoned order of the learned trial court. He submits that from the perusal of the points for determination, as proved by the learned appellate court itself, it would reveal that the learned trial court has framed the point regarding the re- appreciation of the evidence, which is impermissible under Order 43 Rule 1(R) of the CPC. 4 cra 28-2011.sxw He further submits that the plaintiff at the most is entitled to get compensation for the damages caused to his land and nothing more. He further submits that a compensation to the tune of Rs. 56,000/- has been determined for the damage caused to the property of the plaintiff. He submits that in any case, the plaintiff has right under Section 16(3) of the Indian Telegraph Act, 1985 (hereinafter referred to as the said Act .) to make an application to the learned District Judge. It is submitted that though almost the entire work is complete, due to non-completion of the tower on the suit land, the entire project would be stalled, thereby causing great damage to the public interest. 6 Shri Sankpal, learned Counsel for the respondent-plaintiff, on the contrary submits that the learned appellate court has rightly reversed the order of injunction. He submits that the loss that would be caused to the plaintiff would be to 5 cra 28-2011.sxw the tune of Rs.27 lakhs. He, therefore, submits that no interference is warranted in the extra ordinary jurisdiction of this Court. He further submits that as a matter of fact, the location of the tower, in question, has been changed so as to suit the convenience of the other land-owners and therefore, this Court exercising its jurisdiction under Article 226 of the Constitution of India should direct that the tower to be erected at a place which was earlier earmarked. 7 By now it is a settled principle of law that jurisdiction of a appellate court under Order 43 Rule 1(r) of the CPC is limited. Unless the view taken by the learned trial court is found to be perverse or impossible, it is not permissible for the appellate court to reverse the same. Equally it is not permissible for the appellate court to take another view, when two views are possible only because it finds that the other view is more probable view. Reliance in this respect is 6 cra 28-2011.sxw placed on the Apex Court in the case of Wander Ltd. and another vs. Antox India P. Ltd. (1990 (Supp) SCC 727). 8 The learned trial court by correctly applying the principles of prima facie case, balance of convenience and irreparable injury, had refused an order of injunction. The learned trial court has found that the loss or damages that could be said to be caused to the plaintiff are clearly of such a nature which could be compensated in monetary terms. It has been found that as against this, the public interest in laying down the transmission line could very much outweigh the personal interest of the plaintiff to claim damages. 9 It can clearly be seen from the Notification dated 13th August, 2009 issued under the provisions of Section 164 of the Electricity Act that the petitioner has been bestowed with the 7 cra 28-2011.sxw powers of a licensee, which a licensee possesses under Part III of the said Act. It can further be seen that the Sub-Divisional Officer, Karad, vide her letter dated 26th August, 2010 has passed an order under Section 16(1) of the Telegraph Act. It would be relevant to refer to Section 10(d) of the Telegraph Act and Section 16(1) and (3) of the said Act. 10. Power for telegraph authority to place and maintain telegraph lines and posts – The telegraph authority may, from time to time, place and maintain a telegraph line under, over, along, or across, and posts in or upon any immovable property: Provided that – a. the telegraph authority shall not exercise the powers conferred by this section except for the purposes of a telegraph established or maintained by the [Central Government], or to be so established or maintained; b. the [Central Government] shall not acquire any right other than that of user only in the property under, over, along, across in or upon which the telegraph authority places any telegraph line or post; and c. except as hereinafter provided, the telegraph authority shall not exercise those powers in respect of any property vested in or under the control or management of any local authority, without the permission of that authority; and d. in the exercise of the powers conferred by this section, the telegraph authority shall do as little damage as possible, and, when it has exercised those powers in respect of any property other than that referred to in clause (c), shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers. 8 cra 28-2011.sxw 16.Exercise of powers conferred by section 10, and disputes as to compensation, in case of property other than that of a local authority – (1) If the exercise of the powers mentioned in section 10 in respect of property referred to in clause (d) of that section is resisted or obstructed, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them. (3) If any dispute arises concerning the sufficiency of the compensation to be paid under section 10, clause (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him. 10 The perusal of the Sub-section (d) of Section 10 of the said Act would reveal that when a damage is caused to any property, when the authority exercising the power under the said Act, is liable to pay full compensation to all persons interested for the damages sustained by them by reason of the exercise of those powers. Perusal of Sub-section 1 of Section 16 would reveal that when any power which is sought to be exercised under 9 cra 28-2011.sxw Section 10(d) is resisted or obstructed, the District Magistrate is empowered to order that the Telegraph Authority shall be permitted to exercise them. Perusal of the Sub-section 3 of Section 16 would reveal that if any person has any dispute concerning sufficiency of the compensation to be paid under Section 10, an application for that purpose by either of the disputing parties, would be tenable before the District Judge who is required to determine the compensation. 11 As already discussed hereinabove, the Competent Authority has passed an order Under Section 16(1). Though from the perusal of the communication addressed by the present petitioner to the Tahasildar, Patan, dated 29th January, 2010, it would reveal that they have determined the compensation of Rs.56,000/-, I am prima facie of the view, that that would not amount to an adjudication inasmuch as no order determining the compensation has been passed and communicated to 10 cra 28-2011.sxw the plaintiff. In any case, it is to be seen that if such an order is passed and the plaintiff is not satisfied, he is entitled to make an application to the learned District Judge for determining the compensation. It is, thus, clear that the District Judge is empowered to determine compensation so as to protect the interest of the person whose property is damaged on account of laying down of telegraph lines. 12 In that view of the matter, I am of the considered view that the learned appellate court has totally misdirected himself, as could be seen from the points that the learned District Judge has framed for its determination. The learned District Judge has framed the points to the effect :- 1.Whether appellant proves that the Ld.Lower court has not abbreviated evidence properly? 2.Whether appellant proves that the 11 cra 28-2011.sxw Ld.Lower court has drawn wrong conclusions? 13 From the perusal of the points which have been determined by the learned District Judge for determination itself, it could be seen that the learned District Judge has power beyond the scope of an appeal under Section 41(3). The scope of appeal under Order 43 Rule 1(r) is limited. By no stretch of imagination, it can be said that the order passed by the learned trial court is either perverse or impossible. The District Judge while totally misapplying the principles governing jurisdiction of an appeal under Order 43 Rule 1(r) of the CPC, has allowed the appeal. 14 The learned District Judge has totally erred in holding that unless the compensation was paid, work on the plaintiff's land cannot be carried out. The said exercise is totally on misconstruction of the provisions of law. 12 cra 28-2011.sxw 15 Insofar as the contention of the respondent-plaintiff that the damages are not yet ascertained is concerned, it could be seen from the record that the respondent-plaintiff has to thank himself for the same. Perusal of the order dated 4th October, 2010 addressed by the Forest Range Officer, Patan, would reveal that the respondent-plaintiff had refused to permit the valuation of the trees in respect of property and therefore, valuation could not be done. Be that as it may, since it is not disputed that the damage is being in fact caused to the property of the plaintiff, I find that it would be in the interest of the justice to direct the compensation to be determined by an independent authority i.e. Tahasildar, Patan. 16 In that view of the matter, the petition needs to be allowed and the order passed by the learned District Judge needs to be set aside. 13 cra 28-2011.sxw 17 The petition is, therefore, allowed. The impugned order dated 9th December, 2010 is set aside. 18 It is directed that the Tahasildar, Patan, shall call all the concerned officers and representatives of the petitioner and the respondent-plaintiff on 17th February, 2011 to assess the damages that are caused to the property of the petitioner and to determine the damages. On determination of such damages, the petitioner shall immediately make the payment to the respondent-plaintiff. Needless to state that the said determination would be without prejudice to the rights of the either of the parties to challenge the same under Sub-section 3 of Section 16 of the said Act before the learned District Judge. 19 The petitioner undertakes to communicate the order passed by this Court to the Tahasildar, 14 cra 28-2011.sxw Patan, for further necessary action. 20 Parties to act on the authenticated copy of this order. (B.R. GAVAI, J)