MAHARASHTRA STATE ELECTRICITY BOARD Vs. JANARDHAN BHAUSAHEB DESAI

JUDGEMENT

(1.) ON 21st September 1994, the 3rd Additional District Judge, Kolhapur, dismissed the appeal filed by the present appellant Maharashtra State Electricity Board aggrieved by the judgment and decree dated 31st March, 1993 passed by the Joint Civil Judge, Junior Division, Kolhapur whereby the trial Court had decreed the plaintiffs/respondents suit permanently restraining the defendant from taking extra high voltage transmission line (EHVT) through the suit land bearing Gat No. 165 without following the due process of law and further directing the Board to remove the tower No. 45 from the suit land. Upset by the concurrent judgment and decree passed by the two courts below, the present second appeal has been preferred under section 100 of the Code of Civil Procedure, 1908.

(2.) THE Maharashtra State Electricity Board (for short, Board) is a statutory Corporation constituted under the Electricity Supply Act, 1948. By resolution dated 5th July 1986, the Board framed the scheme for establishment of 110 KV. EHV sub stations at Shiroli, Hatkanangale Taluka and at Gokul Shirgaon (MIDC) area in Kolhapur District in exercise of its powers under section 28 of the Electricity Supply Act, 1948 (for short the Act of 1948) for transmission of power. The said scheme called Gokul Shirgaon Scheme was notified in the Official Gazette of Maharashtra Government on 30th October 1986. The case of the Board is that for the execution of the said Scheme the powers of the Telegraph Authority under section 10 of the Indian Telegraph Act 1885 was vested in it as provided under section 42 of the Act of 1948 and thereby the Board was empowered to enter upon any land, to erect poles and lay wires, cables, etc. , for transmission of electricity. Pursuant to the said scheme, the Board chartered route of the said transmission line and accordingly the EHVT line was to pass through the disputed land Gat No. 165. It appears that during the course of construction of transmission line under the aforesaid scheme, the officials, agents and servants of the Board entered upon the suit land bearing Gat. No. 165 to which the respondents herein (for short, plaintiffs) objected. As a result of the objection raised by the plaintiffs, the Board made an application before the District Magistrate of the concerned area under section 16 of the Indian Telegraph Act and on 28th October 1992 the District Magistrate permitted the Board to proceed further in exercise of the powers under the Telegraph Act and the Act of 1948. Prior thereto, the plaintiffs had already filed a suit for perpetual injunction and the mandatory injunction. The said suit after trial has been decreed as aforestated on 31st March 1993 and the appeal preferred by the Board has been dismissed by the first Appellate Court on 21st September 1994 giving rise to the present second appeal. To complete the narration of facts, it may be stated that the order passed by the District Magistrate under section 16 of the Telegraph Act came to be challenged by the plaintiffs before this Court in Writ Petition No. 5302 of 1992 and the Division Bench of this Court disposed of the writ petition by observing that the impugned order of the District Magistrate will merge in the final order to be passed in the appeal arising out of the suit filed by the plaintiffs against the Board.

(3.) THE concerned Gokul Shirgaon Scheme framed under section 28 of the Act of 1948 was published in the Official Gazette and the said notification reads thus: