1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 3129 & 3130 OF 2010 Balaji Vithu Gadge and others. -: VERSUS :- M.S.Electricity Transmission Co.Ltd. And another. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : AUGUST 17, 2010. Heard finally by consent of Shri M.P. Khajanchi, learned Counsel for Petitioners and Shri G.E. Moharir, learned Counsel for Respondent no.1-caveator. Respondent no.1 in both the Writ Petitions is Maharashtra State Electricity Transmission Company Limited who proposes to erect a necessary transmission plant at Mouza Tulana in Warora Tahsil, and for that purpose have acquired certain lands in the vicinity of the lands of petitioners. Petitioners claim to be in possession of Survey No.319 ad-measuring .55 R and 2 Survey no. 316 ad-measuring 1.40 R. Respondent no.1 claims that it has got said lands from Wardha Power Company Limited and Wardha Power Company Limited had in turn purchased the said lands from its earlier owners namely Nanaji Date and others. It filed Regular Civil Suit Nos. 49 and 50 of 2010 complaining obstruction to their possession and hence sought temporary injunction therein to protect their possession. The learned Civil Judge, Junior Division, Warora has rejected that application. Respondent no.1 then filed Misc. Civil Appeal Nos. 12 and 13 of 2010 before the District Judge-1, Warora and by judgment dated 22.06.2010 their appeals came to be allowed. These appellate orders are challenged before this Court by the petitioners i.e. the defendants in the suit in these Writ Petitions. Shri Khajanchi, learned Counsel has contended that the trial Court has considered the 7/12 extract and found that in the year 2008-09 lands were shown in cultivation and therefore, has disbelieved the entry of mutation in the name of respondent no.1. His 3 contention is the very same document has been appreciated by the Appellate Court to arrive at a different finding ignoring the crops mentioned and cultivation by the petitioners. He has pointed out that after purchase, respondent no.1 has got the land measured and found in that measurement report the name of petitioners has been mentioned as persons in possession. The recent report of T.I.L.R. dated 19.07.2010 is also pressed into service to support the same contentions. According to the learned Counsel, only mutation is in name of respondent no.1 is not decisive and the Appellate Court could not have taken any other view of the matter. Shri Moharir, learned Counsel for respondent no.1 has contended that the respondent no.1 is a statutory authority functioning for welfare of general public and it is erecting a plant on suit lands and needs the entire suit land and also the lands in vicinity. The lands in vicinity are already acquired and as these lands belong to respondent no.1, no such steps are necessary. He points out that in no revenue record name of 4 petitioners has been mentioned as owners or as persons in cultivating possession. Earlier name of Nanaji Date appeared and after name of Nanaji Date name of Wardha Power Company and after name of Wardha Power Company name of present respondent no.1 is added. He states that the Appellate Court has therefore correctly appreciated the situation. The T.I.L.R. visiting sites and taking measurement, has got no powers to observe anything recording possession and hence those reports are without any legal sanction. In the alternative and without prejudice to his contentions, the learned Counsel has relied upon the judgment of Calcutta High Court reported at AIR 1986 Cal. 305 (Preeti Singha Roy .vrs. Calcutta Tramsways Co.) to urge that as work of general public importance is undertaken by respondent no.1, said work cannot be allowed to be hampered and if necessary, respondent no.1 at the most can be directed to pay compensation as may be determined by the Courts in accordance with the law. With the assistance of respective learned 5 Counsel, I have perused the papers. The learned Trial Court has found that though in 7/12 extract for the year 2008-09 name of respondent no.1 stood mutated, the land was shown in cultivation and as also types of crops grown therein. Because of this cultivation it recorded a finding that possession cannot be with respondent no.1. The Appellate Court has considered those 7/12 extract and also sale deeds obtained by respondent no.1 and has concluded that the possession is with respondent no.1. Sale deeds no doubt show delivery of possession to respondent no.1 and mutation in revenue records has been done accordingly. The petitioners have not explained why their names are not appearing in 7/12 extracts any where. The trial Court has also noted that aspect and found that petitioners are not in position to show any legal right to their possession, but, then has sidetracked that issue by observing that the burden was upon the plaintiff/respondent no.1 to show that it was in possession. Thus only documents on record to show possession are 7/12 extract and the document of 6 measurement report prepared by the T.I.L.R. office. It is clear that the TILR Office at the most can demarcate the land. Its observations and findings on ownership of that lands or about the possession thereof, cannot be of any assistance in such matters. The 7/12 extracts assume importance and TILR itself has found that the lands are in actual cultivating possession of petitioners since last 35-36 years. However, then the said report fails to explain why in any 7/12 extract name of petitioners has not appeared as persons in cultivating possession. The judgment of Calcutta High Court in the case of Preeti Singha Roy (supra) relied upon by Shri Moharir, learned Counsel, considers a case where in laying of Tramway track was going and an injunction was sought to restrain the tramway authority from undertaking it. That injunction has been rejected by noticing that balance of convenience is in favour of general public i.e. the tramway authority. In facts before me, the position is not different. The respondent no.1 is already owner of Survey Nos. 319 and 316 and sale deeds in their favour are not challenged. The lands in 7 the vicinity are already acquired by it and its development work is going on and it needs entire land from these two survey numbers also. Need is for work of general public importance, hence indulgence by this Court will hamper the development work of entire project. The interest of petitioners can be taken care of by directing respondent no.1 to pay compensation in accordance with law to the petitioners for their lands. In present circumstances the entitlement of petitioner to such compensation cannot be gone into, hence without going into this controversy and only to protect the interest of petitioners in the matter, respondent no.1 is directed to deposit amount of Rs. 18 lacs with the Court of 2nd Joint Civil Judge, Junior Division, Warora by 15th September, 2010. The trial Court shall adjudicate the suit independently and uninfluenced by the observations made either by the appellate Court or by this Court in the matter. The amount in deposit shall be invested by the trial Court in any Nationalised Bank initially for a period of two years. 8 Without prejudice to the adjudication in the Civil Suits and their contentions in the matter, the respondent no.1 is permitted to move appropriate proposal of acquisition of Survey Nos. 316 and 319. The said proposal shall be processed by competent Authority and adjudication therein will be subject to adjudication in Regular Civil Suit Nos. 49 and 50 of 2010. If the petitioners are found entitled to compensation, the amount in deposit with the trial Court shall be adjusted/appropriated towards the said compensation as per law. In view of this, no further orders are warranted in present matters. Writ Petitions are accordingly disposed of by making Rule absolute in the aforesaid terms. No costs. JUDGE Rgd.