MUHAMMAD FARRUKH IRFAN KHAN, J.--Through this civil revision under section 115, C.P.C. the petitioners call in question the validity of impugned orders of the learned courts below dated 07.05.2016 and 21.12.2016. Through the former the learned Trial Court accepted the application of the respondents under Order XXXIX, Rules and 2, C.P.C. in a suit for declaration and granted temporary injunction while through the latter the learned Appellate Court dismissed the appeal of the petitioners filed against the order of the Trial Court.
2. Facts of the case in brief are that respondent No,1/plaintiff filed a suit for declaration and removal of base of 132 KV electricity tower stating therein that he along with, rest of the respondents is owner, of the property fully described in the plaint; that the defendants/petitioners are installing electric 'towers for lying 132 KV transmission line without adopting due course of law which is illegal, unlawful and have no effect on the rights of the respondents. The said suit was accompanied by an application for temporary injunction.
3. Petitioners/defendants contested the suit as well as the application for temporary injunction by filing written statement and written reply and raised certain preliminary objections.
4. Learned trial court after hearing the parties accepted the application of the respondents/ plaintiffs and granted temporary injunction vide impugned order dated 17.05.2016. Being aggrieved the petitioners/defendants preferred an appeal before the learned Appellate Court/Addl. District Judge, who vide impugned order dated 21.12.2016 dismissed the same. Hence, this revision petition.
5. Learned counsel for the petitioners contends that the learned courts below committed material illegality and irregularity while passing impugned orders; that the project of electrification is being undertaken by the petitioners for the welfare of the public at large; that all the codal formalities were fulfilled before initiation of the project; that the District Magistrate vide notification dated 04.02.2017 has accorded sanction to lay 132-KV Transmission Line at location Nos,35 to 36 over the land of respondent No,1; that due to the impugned orders the project for laying of KV transmission Line which is meant for economic growth and prosperity of the country is being delayed; that this important aspect of the matter has not been taken into consideration by the learned courts below while passing the impugned orders.
6. On the converse, learned counsel for the respondent. No,1 contends that the impugned orders are well reasoned; that neither Any consent was given by the respondent nor prior permission from the District Magistrate was obtained by the petitioner for running transmission line as required under Section 12 of the Electricity Act; that the notification of the District Magistrate for according sanction of laying the transmission line was issued subsequent to passing of the impugned orders just to fill in the lacunas; that high voltage transmission line will pass over the Jinazgah and there is imminent danger to life of a common man if the project is allowed to be continued; that all the ingredients for grant of temporary injunction co-exist in favour of the respondents as such both the courts below were fully justified in granting temporary injunction and no occasion arises for this Court to intervene with the same in its revision jurisdiction.
7. Arguments heard. Record perused.
8. It is an admitted fact that high voltage electricity transmission line is being laid over the land owned by respondent No,l. Section 12 of the Electricity Act, 1910 clearly bars the petitioners to lay down any electricity supply line or other work without the consent of its owner or occupier.
According to the said provision of law, in case of any objection by the owner/occupier the petitioners were bound to obtain written permission from the District Magistrate .which was not undertaken by the petitioners before laying the transmission line over the land of respondent No, i .
As the mandatory provisions of law were not complied with by the petitioners before initiation of the project, therefore, prima facie respondent No,1 has good arguable case in his favour.
Notification dated 04.02.2017 according sanction to run heavy transmission wire by the District Collector referred to by the learned counsel for the petitioners is not helpful for them because this has been done after passing of the impugned orders by the learned courts below. Apparently, this course was adopted by the petitioners in order to cover up their illegal and unlawful act and fill up the lacunas. The petitioners were required to obtain permission from the District Magistrate before laying down the transmission line but this was not done at the relevant time and when the restraining order was issued by the learned courts below, the petitioners procured the aforementioned notification from the District Collector which has no sanctity in the eye of law. In case reported as Nisar Ahmad v. Masood Akhtar and others (2011 SCM R 226) where. the sanction was granted by the District Magistrate on the order of the Appellate Court, the Hon'ble apex Court observed as under:-- "The said provision clearly bars the licensee (WAPDA) to lay down any electricity supply line or other work on or over any land without the consent of its owner or occupier. In case of objection by the owner or the occupier. of the land, the licensee is obliged to obtain written permission from the District Magistrate before erecting any electric pole, or laying aerial line. In case; the District Magistrate grants such permission, he is obliged to fix the amount of compensation or rent to be paid by the licensee to the owner or occupier of the land. This process is to be undertaken before installation.as the Magistrate is. required to inquire into the merits of the objection raised by the owner. Permission can be refused in appropriate cases. The fixation of compensation by the District Magistrate . upon direction of the Appellate Court was not in terms of section 12, of the Act.
The direction appears to have been influenced by the equitable consideration that removal of the poles and power supply to the appellant would be unfair and unjust. This was not the relevant factor for the Appellate Court to have taken into consideration in view of the clear statement of the law."
9. It is not denying the fact that according to the plan of the petitioners high voltage electricity lines would pass through the Jinazgah, therefore, there is imminent danger to the lives of public at large as such ingredients of irreparable loss and balance of convenience also lean in favour of respondent No,l. In view of the attending circumstances of the case, the learned Trial Court was fully justified in accepting application of the respondents under Order XXXIX, Rules 1 and 2, C.P.C. read with section 151, C.P.C. which order has rightly been maintained by the learned Appellate Court and no occasion arises for the Court to intervene with the same in its revisional jurisdiction.
9A. It has been brought to the notice of the Court that the petitioners after obtaining interim relief from this Court have completed the project, if that is so then they are restrained to activate and energize the disputed transmission line until the final decision of the suit. Further the respondents are at liberty to initiate contempt proceedings against the petitioners for non-compliance of the injunctive orders of the relevant Court(s), who may proceed with the matter in accordance with law and would be at liberty to restore the position on the ground prevailing ante the grant of injunctive order. This revision. petition having 'no substance is dismissed.