The State of Jharkhand Department of Energy Through Its Law Officer vs Surendra Kumar Srivastava And Others

CIVIL APPEAL NO. 21 OF 2019 [Arising out of S.L.P. (C) No. 26645 of 2015]

The State of Jharkhand …Appellant

Versus

Surendra Kumar Srivastava & Ors. …Respondents

WITH

CIVIL APPEAL NO. 22 OF 2019 [Arising out of S.L.P. (C) No. 24684 of 2015]

JUDGMENT

INDU MALHOTRA, J.

Leave granted.

1. The present Civil Appeals arise out of S.L.P. (C) Nos. 26645 Signature Not Verified Digitally signed by JAYANT KUMAR ARORA

and 24684 of 2015 which have been filed to challenge the Date: 2019.01.03 15:32:05 IST Reason:

Judgment dated May 19, 2015 passed by the Jharkhand

1 High Court in W.P. (C) No. 2081 of 2015. The Writ Petition

had been filed by Respondent Nos. 1 to 3 herein to

challenge the Order dated 07.04.2015 refusing to grant

Interim Relief in an Application filed under Order XXXIX

Rules 1 and 2 of the CPC in Title Suit No. 45/2015, and

Order dated 21.04.2015 passed by the District Court.

2. A brief factual background of this case is set out herein

below:

2.1. According to the Writ Petitioners/Respondent Nos. 1

to 3 herein, their mother – late Smt. Shyal Devi had

purchased about 3.61 acres of land 1 (“suit property”)

from Raju Gour and Shatrughan Gour by way of two

unregistered Sale Deeds dated 30.04.1958. According

to Respondent Nos. 1 to 3, late Smt. Shyal Devi had

raised a structure over a part of the suit property,

and was cultivating the rest of it. The said land was

1 Recorded in R.S. Khatian of 1937 under Khata No. 19 (Plot Nos. 3737, 3733, 3710, 3741, 3749, 3751, 3752, 3753, 3754 and 3755), Khata No. 21 (Plot No. 3742), Khata No. 33 [Plot Nos. 3718, New Plot Nos. 2657, 2658, 2659, 2660, a portion of 2650, 2626(p), 2656(p), 2653(p), 2655(p) Thana No. 1198 and 1151]. The above-described land was stated to be situated in mouza agricultural and bara, P.S. Sidhgora, District Singhbhum East, and was incorporated in new Khatian No. 24 in the finally published record of rights of Jamshedpur Notified Area (1995-

1996).

2 situated adjacent to the land belonging to the Bihar

State Road Transport Corporation.

2.2. In 1992, Smt. Shyal Devi filed Title Suit No.

153/1992 before the Additional Munsif, Jamshedpur

alleging that the officials of the Bihar State Road

Transport Corporation were disturbing her possession

of the suit property since 1990.

The Additional Munsif vide Judgment and

Decree dated 18/27.02.1999 decreed the Suit in

favour of the Plaintiff – late Smt. Shyal Devi, and

confirmed her possession since 1958. The Bihar

State Road Transport Corporation was restrained

from interfering with the peaceful possession of Smt.

Shyal Devi. The relevant extract of the findings of the

Additional Munsif contained in the Judgment is

reproduced hereinbelow:

“11. In view of the aforesaid discussion, I found that plaintiff [Smt. Shyal Devi] has proved her possession of the suit land since 1958 and as such these issues are decided in favour of the plaintiff and against the defendant.”

3 2.3. The Bihar State Road Transport Corporation filed

Title Appeal No. 20/1999 to challenge the Judgment

and Decree dated 18/27.02.1999 before the

Additional District Judge, East Singhbhum,

Jamshedpur.

The Title Appeal No. 20/1999 was dismissed

by the Additional District Judge on the ground of

possession. However, the District Judge held that

the Plaintiff had failed to establish her title, and it

would be open for the Bihar State Road Transport

Corporation to file a suit against late Smt. Shyal Devi

for declaration of title over the land, and to seek her

eviction.

2.4. The Bihar State Road Transport Corporation

preferred Second Appeal No. 17509/2005 against the

Judgment dated 29.08.2005 passed by the Additional

District Judge before the Jharkhand High Court,

which is currently pending adjudication.

2.5. It is relevant to mention that late Smt. Shyal Dev i did

not challenge the finding that she had failed to

4 establish her title before the High Court. Hence, the

finding of the Additional District Judge attained

finality.

2.6. During the pendency of the Second Appeal, the

Deputy Commissioner, East Singhbhum,

Jamshedpur sought a No-Objection Certificate vide

letter dated 13.10.2012 from the Transport

Commissioner, Jharkhand for the construction of an

Electricity Sub-station on the land comprised in

Khata No. 24 (Plot Nos. 2650, 2652, 2656, and 2657)

in Jamshedpur, recorded in the name of the Bihar

State Road Transport Corporation.

The Transport Commissioner vide letter dated

04.03.2015 conveyed that it had no objection for

transfer of the said land for the construction of an

Electricity Sub-station thereupon.

2.7. During the pendency of proceedings before the High

Court, Smt. Shyal Devi expired 24.02.2014 leaving

behind three sons i.e. Respondent Nos. 1 to 3, as her

legal representatives and successors.

5 2.8. Respondent Nos. 1 to 3 filed Title Suit No. 45/2015

before the Civil Judge (Junior Division – I),

Jamshedpur seeking permanent injunction to

restrain the Appellant –The General Manager,

Jharkhand State Electricity Board [in S.L.P. (C) No.

24684 of 2015] from interfering with their alleged

possession of the suit property, along with an

Application for Temporary Injunction.

2.9. The Civil Judge (Junior Division – I) vide Order dated

07.04.2015 dismissed the Application for Temporary

Injunction filed by Respondent Nos. 1 to 3. It was

held that Respondent Nos. 1 to 3 failed to describe

the specific area/portion of the suit property which

was in their alleged possession, over which the

construction of the Electricity Sub-station was being

carried out by the Jharkhand State Electricity Board.

The Civil Judge (Junior Division – I)

concluded that Respondent Nos. 1 to 3 had failed to

make out a prima facie case, and held that no

irreparable loss would be caused, which could not be

compensated in terms of money.

6 2.10. Aggrieved by the Order dated 07.04.2015,

Respondent Nos. 1 to 3 filed an Appeal under Order

XLIII, Rule 1(r) of the CPC before the District Judge

III-cum-MACT, East Singhbhum, Jamshedpur.

The Appeal was dismissed vide Order dated

21.04.2015 whereby the District Judge affirmed the

Order passed by the Civil Judge (Junior Division – I)

dated 07.04.2015.

It was held that Respondent Nos. 1 to 3 had

failed to demarcate the suit property in the Plaint to

show that the construction activity was taking place

on their land. The Plaintiffs had not placed on record

the old Khatian, or the new Khatian.

Respondent Nos. 1 to 3 were making a claim

of possession with respect to 3.61 acres of land

recorded in R.S. Khatian of 1937 under Khata No. 19

(Plot Nos. 3737, 3733, 3710, 3741, 3749, 3751,

3752, 3753, 3754 and 3755), Khata No. 21 (Plot No.

3742), Khata No. 33 [Plot Nos. 3718, New Plot Nos.

2657, 2658, 2659, 2660, a portion of 2650, 2626(p),

7 2656(p), 2653(p), 2655(p) Thana No. 1198 and

1151]. The said land stated to be situated in Mouza

Baridih and Bara, P.S. Sidhgora, District Singhbhum

East, in new Khatian No. 24 in the finally published

record of rights of Jamshedpur Notified Area (1995-

1996).

On the other hand, the Counsel for the State

Electricity Board stated that 1.47 acres of land

recorded as Khata No. 24 (Plot Nos. 2650, 2652,

2656 and 2657) was registered in the name of the

Bihar State Road Transport Corporation, as Ana ba d

land. The Board placed reliance on trace map, and a

letter dated March 4, 2015 addressed by the

Transport Commissioner, Ranchi, Jharkhand to the

Deputy Commissioner, East Singhbhum,

Jamshedpur making the land available for the

Jharkhand State Electricity Board.

The District Court held that the Plaintiffs had

produced no rent receipts, or municipal receipts to

corroborate their plea of alleged possession over the

disputed suit property.

8 The District Court found that Respondent No.

3 – Narendra Kumar Srivastava had concealed a

material fact that he had filed a Writ Petition before

the High Court seeking an injunction from

construction of a boundary wall and digging on the

suit property by the Appellant – The General

Manager, Jharkhand State Electricity Board [in

S.L.P. (C) No. 24684 of 2015]. The Writ Petition came

to be withdrawn on 24.04.2015. The suppression of

a material fact warranted the drawing of an adverse

inference against the Respondents. The grant of

injunction being a discretionary relief, Respondent

Nos. 1 to 3 were found to not be entitled to the same.

2.11. Aggrieved by the judgment of the District Judge,

Respondent Nos. 1 to 3 filed W.P. (C) No. 2081 of

2015 before the Jharkhand High Court seeking a writ

of certiorari to quash the Order dated 07.04.2015

passed by the Civil Judge (Junior Division – I) in Title

Suit No. 45/2015, and Order dated 21.04.2015

passed by the District Court in Misc. Appeal No.

5/2015.

9 2.12. The Electricity Board filed a Counter Affidavit along

with photographs of the construction of the Electricity

Sub-station. It was submitted that almost 90% of the

construction work of the Electricity Sub-station had

already been completed. It was further stated that the

grant of an injunction would seriously affect public

interest, and the welfare scheme for providing

electricity to the local populace at subsidised rates.

2.13. The learned Single Judge of the High Court vide the

impugned Judgment dated 19.05.2015 allowed W.P.

(C) No. 2081 of 2015 filed by Respondent Nos. 1 to 3,

and directed the parties to maintain status quo with

respect to the suit property. It was clarified, that the

Appellant – The General Manager, Jharkhand State

Electricity Board [in S.L.P. (C) No. 24684 of 2015]

was, however, at liberty to raise construction on any

other land, except the disputed suit property.

The learned Single Judge held that the

findings of the courts below with respect to there

being no prima facie case in favour of Respondents

No. 1 to 3 was erroneous in view of the judicial 10 findings in their favour in the previous round of

litigation in Title Suit No. 153/1992, and Title

Appeal No. 20/1999.

The Single Judge held that the courts below

dismissed the Application for Temporary Injunction

filed by Respondent Nos 1 to 3 on the ground that

Respondent Nos. 1 to 3 (Plaintiffs) had failed to

specifically describe the disputed suit property, ev en

though the description of the disputed suit property

was not objected by the Jharkhand State Electricity

Board.

On balance of convenience, the Single Judge

held that in case the Appellant – The General

Manager, Jharkhand State Electricity Board [in

S.L.P. (C) No. 24684 of 2015] completes the

construction of the Electricity Sub-station,

Respondent Nos. 1 to 3 would be under a

compulsion to accept compensation, even if the Title

Suit No. 45/2015 was decreed in their favour.

11 The Single Judge held that the photographs

produced by the Appellant Electricity Board only

indicated the raising of electricity poles, and no other

construction had been raised on the disputed Suit

Land.

3. Aggrieved by the impugned Judgment dated 19.05.2015

passed by the learned Single Judge of the High Court, the

State of Jharkhand filed the present S.L.P. (C) No. 26645 of

2015, and the General Manager, Jharkhand State

Electricity Board filed S.L.P. (C) No. 24684 of 2015.

3.1. This Court vide Interim Order dated 14.12.2015,

granted liberty to the Appellant – The General

Manager, Jharkhand State Electricity Board [in S.L.P.

(C) No. 24684 of 2015] to draw the supply lines.

3.2. The Appellant – The General Manager, Jharkhand

State Electricity Board [in S.L.P. (C) No. 24684 of

2015] in I.A. Nos. 91857 & 91859/2018, sought

permission to energise the Electricity Sub-station,

after depositing the costs of the suit property as

12 assessed by the Circle Officer, Jamshedpur before the

Deputy Commissioner, Jamshedpur.

3.3. During the pendency of the proceedings, the

Electricity Sub-station has been fully constructed

having a capacity of 33/11 K.V. As per the Executiv e

Engineer, Electricity Supply Division, Jamshedpur

approximately 1 lakh people residing in the nearby

areas would be benefitted by the supply of electricity,

and it would result in reduction of loss of load on

other Electricity Sub-stations situated in the vicinity.

4. The Appellants and Respondent No. 4 in both the Special

Leave Petitions were represented by Mr. Ajit Kumar Sinha,

Senior Advocate, while Respondent Nos. 1 to 3 were

represented by Mr. Satpal Singh, Advocate.

4.1. The learned Senior Counsel appearing for the

Appellants, inter alia submitted that Writ Petition No.

2081 of 2015, seeking a writ of certiorari, was not

maintainable, as it was filed to challenge judicial

orders passed by civil courts. Learned Counsel placed

13 reliance on the decision of a three-judge bench in

Radhey Shyam v. Chhabi Nath & Ors. 2.

4.2. On merits, it was submitted that Respondent Nos. 1

to 3 did not have title to the disputed suit property.

The Counsel relied on the findings in the Judgment

dated 29.09.2005 passed in Title Appeal No. 20/1999

wherein the Additional District Judge had clearly held

that the mother of Respondent Nos. 1 to 3 had failed

to prove her title with respect to the disputed suit

property. The said finding attained finality, since la te

Smt. Shyal Devi, or her legal heirs and successors i.e.

Respondent Nos. 1 to 3 had not challenged the

finding any further.

4.3. It was further submitted that the State of Jharkhand

was the owner of the suit property, which was

evidenced from the revenue records of the suit

property recorded in the name of the Bihar State

Road Transport Corporation.

2 (2015) 5 SCC 423.

14 The learned Senior Counsel submitted that

TISCO Ltd. had transferred 16.529 acres of land to

the Bihar State Road Transport Corporation. The

suit property was recorded in the name of the Bihar

State Road Transport Corporation in the recent

survey (khatiyal). The Electricity Sub-station has

been constructed on 1.47 acres of land registered as

Khata No. 24 (Plot Nos. 2650, 2652, 2656 and 2657)

made available to the Jharkhand State Electricity

Board by the Transport Department, Ranchi,

Jharkhand vide letter dated 04.03.2015.

4.4. Pursuant to the interim Order dated 14.12.2015, the

Electricity Sub-station had been completely

constructed, and would provide electricity to over 1

lakh people residing in the vicinity.

4.5. It was further submitted that the learned Single

Judge erred in allowing W.P. (C) No. 2081 of 2015

since Respondent Nos. 1 to 3 had failed to make out a

prima facie case in their favour. They had also failed

to demarcate the area in their alleged possession, in

15 the Plaint, on which the electricity Sub-station was

being constructed.

The balance of convenience was in favour of

the Appellant-Electricity Board, in view of the over-

riding public interest in providing electricity to over 1

lakh people. Further, no irreparable loss or injury

would be caused to Respondent Nos. 1 to 3 as they

could always be adequately compensated under

Section 67 of the Electricity Act, 2003, if found

entitled.

4.6. On the other hand, Advocate Mr. Satpal Singh

supported the findings of the learned Single Judge of

the High Court.

It was submitted that the title to the disputed

suit property vested in Respondent Nos. 1 to 3 since

the issue pertaining to title was decided by the

Additional Munsif in favour of the mother of

Respondent Nos. 1 to 3, vide Judgment dated

18.02.1999. Title Appeal No. 20/1999 filed by the

Bihar State Road Transport Corporation against the

16 Judgment of the Additional Munsif was dismissed by

the Additional District Judge, vide Judgment dated

29.08.2005. Although, Second Appeal No.

17509/2005 had been filed by the Bihar State

Transport Corporation against the Judgment dated

29.08.2005 passed by the Additional District Judge,

it was pending final determination before the High

Court.

The learned Advocate contended that the

mere pendency of the Second Appeal No.

17059/2005 would not entitle the Bihar State Road

Transport Corporation to transfer the disputed suit

property to the Appellant – General Manager,

Jharkhand State Electricity Board [in SLP (Civ il) No.

24684 of 2015].

The Appellant–State Electricity Board failed to

establish its title or possession over the disputed

Suit property, since it had not produced any material

except the letter of the Transport Commissioner

dated 04.03.2015 and a map.

17 The learned Counsel relied on the decisions of

this Court in Meghmala & Ors. v. G. Narasimha

Reddy & Ors.3 and Rame Gowda (dead) by LRs v. M.

Varadappa Naidu (dead) by LRs & Anr. 4 to submit

that a person who is in settled possession, even in

case he is a trespasser, has the right to be protected

against forcible eviction, and can be evicted only

after following the procedure prescribed by law.

5. The limited issue which arises for consideration in the

present Civil Appeals is whether the learned Single Judge

of the High Court was justified in directing the parties to

maintain status quo during the pendency of the Title Suit

No. 45/2015 before the Court of Civil Judge (Junior

Division – I), Jamshedpur.

6. DISCUSSION AND ANALYSIS

We have heard the Counsel for both parties at

length, perused the pleadings, and the written

submissions filed in the present Civil Appeals.

3 (2010) 8 SCC 383, paragraphs 46-48.

4 (2004) 1 SCC 769.

18 6.1. With respect to the first submission of the learned

counsel for the Appellants that the Writ Petition filed

by Respondent Nos. 1 to 3/Plaintiffs for a writ of

certiorari to quash the Order dated 07.04.2015

passed by the Civil Judge (Junior Division) and the

Order dated 21.04.2015 passed by the District Judge

was not maintainable in view of the judgment of the

three-judge bench in Radhey Shyam v. Chhabi Nath &

Ors.5, there cannot be any dispute to the law laid

down by this Court in Radhey Shyam v. Chha bi Na th

& Ors. (supra), but in the facts of the present case, we

do not propose to unsettle the judgment of the High

Court on the above ground due to two reasons, firstly,

in the High Court, the Appellants, who were

Respondents in the Writ Petition, did not challenge

the maintainability of the Writ Petition under Article

226 of the Constitution of India, and secondly, had

the Appellants raised the above objection regarding

maintainability of the Writ Petition, the course open

for Plaintiffs/Respondent Nos. 1 to 3 was to amend

5 (2015) 5 SCC 423.

19 the cause title of the writ petition under Article 227 of

the Constitution, and such a Writ Petition under

Article 227 would have been clearly maintainable.

6.2. The Writ Petition under Article 227 challenging the

orders passed by Civil Courts refusing to grant

interim injunction under Order XXXIX, Rules 1 and 2

of the CPC could very well be maintainable, and the

opportunity to amend the cause title by Respondent

Nos. 1 to 3 by raising any objection to that effect

having been denied to them, we, instead of setting

aside the judgment of the High Court on the above

ground, proceed to examine the contentions on

merits.

6.3. The Learned Single Judge granted an order of status

quo with respect to the construction of the Electricity

Sub-station even though the Plaintiffs/Respondent

Nos. 1 to 3 herein had failed to produce any

documentary evidence whatsoever to establish their

title to the suit property.

20 The Additional District Judge in the earlier

round of litigation, in Title Appeal No. 20/1999 vide

Judgment dated 29.08.2005 had categorically held

that late Smt. Shyal Devi, the mother of Respondents

No. 1 to 3 and the predecessor in title, had failed to

establish her title to the suit property. The said

finding has admittedly not been challenged by

Respondent Nos. 1 to 3. The said finding has

attained finality. In this view of the matter, the

Respondents failed to make out a prima facie case,

which would have justified the grant of an interim

injunction.

6.4. Furthermore, the Plaintiffs/Respondent Nos. 1 to 3

also failed to establish that the Electricity Sub-station

was being constructed on their land. The

Respondents No. 1 to 3 failed to describe the specific

area which was in their alleged possession over which

the Electricity Sub-station was being constructed.

6.5. The balance of convenience lies entirely in favour of

the Appellant – The General Manager, Jharkhand

State Electricity Board [in S.L.P. (C) No. 24684 of 21 2015] since the entire Electricity Sub-station has

been fully constructed, and is now at the stage of

being energised for supply of electricity inter alia to

four feeders viz. Bhuiyadih (BHU), Baridih (BRD),

Vidyapatinagar (VPN). It is estimated to provide

electricity to approximately 1 lakh people. The Board

is statutorily empowered under Section 67 of the

Electricity Act, 2003 to undertake all actions

necessary for transmission or supply of electricity,

subject to the procedure under the Electricity Act,

2003.

6.6. Respondent Nos. 1 to 3 have failed to produce any

evidence of their possession over the vacant land, no

undue hardship or prejudice would be caused to

them, in the event the Appellant – The General

Manager, Jharkhand State Electricity Board [in S.L.P.

(C) No. 24684 of 2015] is permitted to proceed with

the energisation of the Electricity sub-station.

6.7. In the event that Respondents No. 1 to 3 are able to

establish their title and possession to any part of the

property utilised for the Electricity Sub-station, they 22 would be entitled to compensation for any damage,

detriment or inconvenience caused, in accordance

with S. 67(3) of the Electricity Act, 2003, and/or any

other law for the time being in force.

6.8. The Electricity Sub-station is complete in all respects

and ready to be energised, as per the documentary

evidence placed before the Court. The overriding

public interest of providing electricity to the local

populace would far outweigh the alleged interest of

Respondent Nos.1 to 3.

In view of the aforesaid facts and

circumstances, the decision of the Civil Judge

(Junior Division – I) and the District Judge in

refusing to grant a Temporary Injunction in Title Suit

No. 45/2015, was justified, and is restored.

7. In view of the aforesaid reasons, the Civil Appeals are

allowed, and the impugned Judgment dated May 19, 2005

passed by the Learned Single Judge of the Jharkhand High

Court in Writ Petition No. 2081 of 2015 is hereby set aside.

The impugned Judgment ordering the maintenance of

23 status quo with respect to the Suit property till the final

disposal of the Title Suit No. 45/2015 stands vacated.

The findings given in this judgment are prima facie

in nature given at the interim stage, and will not influence

the trial of the case.

The pending applications be disposed of accordingly.

Ordered accordingly.

…..……...........................J. (ASHOK BHUSHAN)

..….……..........................J. (INDU MALHOTRA) New Delhi;

January 03, 2019

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