The Deputy Managing Director, CESC Limited and Others Vs Naba Kumar Mondal and Others

B.B. Mitra, J.@mdashThe present revisional application is directed against an order dated 5th April, 1999 passed in Misc. Appeal No. 85 of 1999 confirming the order No. 11 dated 22.2.99 passed by the 6th Court of Civil Judge, Senior Division in Title Suit No. 65 of 1997. By the original order passed by the trial Court it disposed of a petition for temporary injunction on contest directing parties to maintain status quo. The said order was challenged by way of Miscellaneous Appeal and the same was disposed of by an order dated 3rd September, 1997. Against the same, the revisional Court was moved u/s 115 of the CPC and C.O. No. 2666 of 1997 was obtained which was disposed of on 23rd July, 1998. The impugned order is the resultant upshot of the aforesaid order passed in an earlier revision as noted by this Court. As such the said revisional order shall have privotal bearing on the impugned order under challenge which is for consideration. Accordingly, it is felt that a reference is required to be made to the earlier order of revision and it appears that in terms of the operative order of earlier revision, Tewari, J. did not go into the merits of the same and a finding has been sought to be arrived at that a further enquiry about the matter is noted. Accordingly, the revisional application was disposed of by the learned brother J. by disposing of the petition by directing the trial court to examine whether the amended scheme published on 7th April, 1992 has been finally approved and sanctioned under the Electricity Supply Act, 1948. It has been further observed that if the scheme has already been finalised, the learned trial Court shall vacate the status quo order passed by the learned appellate Court. As such the trial Court is hereby directed to complete this exercise within 30 days from the date of communication of the said order. It appears that after the remittance of the matter by way of remand, the court below seems to have been influenced by the operative portion of the aforesaid order. Even in the impugned order passed by the appellate Court, a reference was made to the aforesaid operative portion of the revisional order passed by this Court and in the wake of the same, the impugned order has been passed. This Court before scrutinising the matter in details is confronted with the aforesaid order which created certain difficulties for this Court. At the first blush it appears that an order passed by a Court of co-ordinate jurisdiction is normally and generally binding on the said Court of coordinate jurisdiction at a later stage. This Court has the occasion to peruse the revisional order and in fact wanted sincerely to give effect to the said revisional order. Unfortunately, however, the present Court is bit perplexed by the tenor of the order in view of the operative part that if the scheme has already been finalised then the learned trial Court will vacate the status quo order passed by the learned appellate Court. This Court does not know as to whether the said observation is resultant effect of inadvertent mistake or alternatively it may be due to some unhappy expression used in the said order because normally a subordinate Court should not have any right to vacate the interim order passed by the superior Court. Mr. Ray, the learned counsel for the petitioner, in his usual fairness had not pointed out the same to this Court but in order to interpret the order, this Court cannot overlook part of the said order as it is believed that High Court''s order is to be read in terms of its letter reflecting the spirit of the order. If the order in question is couched with letters, letters are required to be given literal construction. Therefore, this Court in fact is in some confusion to follow the meaning flowing from the operative part of the said order. Mr. Ray, the learned counsel for the petitioner, has further submitted that disposal of the said revisional application has made provision for the effect that if the scheme has already been finalised then the trial court would vacate the status quo order but it is conspicuously silent if the scheme has already not been finalised then what the trial Court should do. According to Mr. Ray, the same should have been spelt out in the order and it cannot be afforded to be delightfully vague. Mr. Ray''s further submission is that the order as it stands makes provision for one way traffic but it does not give any indication as to what should be the procedure adopted if the traffic flows from the other end, namely, if the scheme is not finalised. According to Mr. Ray, the said order should not have been given effect to either in terms of its letters or in terms of its spirit. Mr. Ray has made a reference to the decision of Sir Asutosh Mookerjee, the celebrated Judge of this Court in the case of Virjiban Dass Moolji v. Biseswar Lal Hargovind, reported in AIR 1921, Cal 169 where it has been opined that the decision of a single judge is required to be treated with respect and ordinarily the same should be followed if it is found applicable. But that does not imply that he cannot examine the matter and it is not competent to him to take a contrary view if he is convinced that the decision is erroneous. The answer will depend on variety of circumstances of which some of factors are mentioned. One of the factors, that if the decision gives adequate reason for the conclusion but the position is indefensible on principle then although a judge may feel absolutely convinced that the decision is erroneous in law he is still bound to decide against his own opinion and successor judge will be reduced to an automation on production of earlier judgment. A further reference was made to the case of Pieco Electronics and Electricals Ltd. Vs. Smt. Tribeni Devi, where a Division Bench of this Court in para 18 of the same in the light of the decision laying down the ratio of law of Sir Asutosh has indicated in the earlier judgment and it was held that if the subsequent Bench is absolutely convinced that the decision is erroneous, the later Bench is not bound by the earlier Bench. Subsequently, a further reference was made to the case of Smt. Niharika Kundu & Ors. v. Kalipada Dey & Ors. reported in 1995 CLJ 1, where a reference to the aforesaid decision was made and where it has been observed by placement of reliance on the said decision that the given case is a classical case where strict adherence to the rules of procedure may make justice a casualty because an avenue is made open to a party to explore his remedy but he is not allowed to toddle that path to ventilate his grievance. It appears that the said judgment is in line with the earlier decision.

2. The said contention of Mr. Ray has been repelled by Mr. Bhattacharya. Firstly by drawing a line of distinction, as according to him, the same may be assumed to be correct proposition of law but that is distinguishable in a given case where a court of coordinate jurisdiction has passed even assuming an erroneous order at an earlier stage which is binding on a successive stage before a Court coordinate jurisdiction. Mr. Bhattacharya has referred to some of the decisions but before embarking into analysis of the same though more reference was made to the same but the Court at its own try to apply its mind with regard to the decision not cited from the Bar which may have its bearing on the question. This court of its own tends to refer to the case of Lakshmi Shanker Srivastava Vs. State (Delhi Administration), thereof where it has been held by the Supreme Court that if no analysis of law is made, it ceases to be a binding authority. Here, the order of brother Tewari, J. passed in revision is not backed up by any analysis of law and as such in the light of the aforesaid decision it becomes doubtful to this Court as to how far and whether the said order can have a binding authority at a successive stage. This Court is constrained to remind itself once again that it cannot harmonies itself once again with the operative part of the order of Tewari, J. in C.O. No. 2666 of 1997 where His Lordship has directed that if the scheme has already been finalised, the learned trial Court shall vacate the status quo order passed by the learned Court. The said observation apparently appears to militate against rudimentary notion of fundamental concept as this Court cannot reconcile itself to the operative part of the order where direction as to the effect that the trial Court will vacate the order of the appeal Court as it may have a far reaching effect making erosion into the system of judicial hierarchy. Mr. Bhattacharyya, the learned Advocate appearing for opposite parties, inter alia, amongst other decisions cited by him has drawn to the case of Authorised Officer (Land Reforms) Vs. M.M. Krishnamurthy Chetty[OVERRULED], and he has drawn to the last sentence of a cryptic order passed by the Supreme Court that, it is well settled that even orders which may not be strictly legal become final and are binding between the parties if they are not challenged before the superior Courts. There is no doubt with regard to the general proposition emanating from the said observations of the Supreme Court but as it is by way of remand, therefore the order of remand is required to be interpreted. Therefore the question which is left open to be agitated before this court is about the construction of the order of remand. There appears that though parties have submitted themselves to the order of remand but how the order of remand is to be construed and what is the nature of direction contained in the order of remand. There is doubt raised about the nature of the order of remand and the said order of remand provides for one-way arrangement and not for the other way. The rule of precedence is followed as a procedural law to prevent anarchy in judicial system. It is not out of context to make a mention that construction of rules or procedure should promote justice and prevent its miscarriage to do justice in myriad situation all of which cannot be envisaged. Rules or procedure should not be allowed to become mistress but they should be relegated to position of the hand maid of justice and in support of such observation this court with respect tends to rely on the case of Owners and Parties interested in M.V. "ValiPero" Vs. Fernandeo Lopez and Others, which is relied upon by this court of its own without being cited from the Bar. Therefore, there is difficulty to interpret the order of remand and if interpretation of the order of remand and the nature of direction contained therein are difficult to decipher, the Court cannot but be in a region of uncertainty to give effect to the same and accordingly the question arises as to how far the same retains its binding character on the court if the directions contained in the order of remand cannot be appreciated nor it can be explained normally from the reading of the same then different authorities may interpret the order differently and that will encourage anarchy into judicial system and therefore in order to prevent one mischief, the other mischief will creep its head from the other direction. Therefore, this Court is poised in a crucial and critical situation as in its experience does not face such a curious and crucial proposition of law and as it is required to resolve it, therefore it has taken the pains to analyse it in its own way after giving much introspection to it by application of its originality in the prospective of limited light being radiated from available judgment. Therefore, the other judgment cited by Mr. Bhattacharya may not subserve the parties to answer to this question as this proposition of law is answered by this Court in the manner by being conscious of trapping of its limitation that if an order passed erroneously where construction of the tenor of the order is difficult and there is also development of one of the myriad situation where a subordinate court is directed to vacate the subsisting order of an interim nature of a superior Court which will disturb the entire pattern of judicial hierarchy. The said order passed in revision does not provide for alternative, namely, as to what will happen if the connected scheme has not been finalised, namely, keeping one option for the Court open but by not making the other provision how to exercise in the event if the scheme is not finalised. Therefore, this Court feels that such type of orders which may appear to be puzzling in nature apart from having their intrinsic element of erroneous character, the Court cannot but be reduced to a state of automation as pointed out by Sir Asutosh in the celebrated judgment as cited before. This Court cannot reconcile itself to the reality of its relegation to the position of automation by way of abdication of mental process, therefore this court tends to lay down the proposition of law that a court of coordinate jurisdiction can overlook and by pass an order passed in the earlier stage of coordinate jurisdiction if the order appears to be not understandable and the same is contrary to the structural pattern of the system of judicial hierarchy and if there is possibility of giving wide interpretation of the nature of construction contained in the order of remand, the different Courts in interpreting the said order may be in the state of disarray. Therefore, the estimation of this Court by placement of reliance on the above-noted decision is of the view that in an order of remand passed by coordinate jurisdiction, such Court if it finds from that order of remand and the direction contained therein are palpably erroneous and they militate against the basic pattern of the scheme of procedural formalities of CPC relating to the pattern of the order of remand as envisaged under provisions of Order 41 Rules 23 to 27 and the directions are required to be couched in a lucid manner. It is not out of context to mention with regard to an old case where Chief Justice Rankin has given a caution that while making an order of remand, the Court making a remand is expected to arrive at its own conclusion and should not pass over the same to subordinate Court which it could have done itself. Here, the revisional Court can after looking at the scheme arrived at its own interpretation and such delegation under the garb of remand has been deprecated in most caustic term by Justice Rankin in the case of Promotha Nath Mazumdar, v. Nagendra Nath Majumder, reported in 33 C.W.N. 1211 at 1214 to 1215.

3. Now coming back to the resume of the facts of the case, it appears that the plaintiffs, who are opposite parties in this revisional application, filed a connected Title Suit against the Calcutta Electric Supply Corporation Limited and its officers praying for a decree of declaration that the plaintiffs are the sole and absolute owners of the suit properties and the defendants have no authority to interfere with the peaceful possession of the plaintiffs by fixing high tension overhead wires for the purpose of transmission of electric energy from the generating Station at Pujali, Budge Budge, without the consent and approval of the plaintiff and also for a decree of permanent injunction for restraining the generating agency form continuing to fix the concerned high tension energy line over the suit, properties. The plaintiffs prayed for interim injunction directing the defendants to be restrained from drawing high voltage energy line over the suit properties. The prayer was refused by the Court below but in the appeal being Misc. Appeal No. 9/97 the appeal Court passed an order upon the Calcutta Electric Supply Corporation Limited to maintain status quo. The same was challenged in the connected revisional application u/s 115 of the CPC being C.O. No. 2226/97 and on the basis of the said order the matter was directed to be heard by the trial Court in the light of the aforesaid directions. The directions have already been mentioned hereinbefore and the directions are specifically to the effect that the trial Court will examine whether the amended scheme published in April 1992 has been finally approved and sanctioned u/s 28 of the Electricity (Supply) Act, 1948 and if the scheme has already been finalised the trial Court would vacate the order of status quo passed by the appeal Court.

4. At the initial stage, it has been submitted by Mr. Roy on behalf of the revisionist-petitioners that so far as the prayer contained in the connected plaint of suit seeking a declaration that the plaintiffs are the sole and absolute owners of the suit properties which is not disputed by the said defendants. It has also been submitted by Mr. Roy that they do not want to interfere with the peaceful possession of the plaintiffs in respect of the suit land in any form at the ground level. It has been submitted that the dispute centers round the installation of line II of 2 x 132 KV double circuit overhead transmission lines for evacuating power of 2 x 250 MW from the Budge Budge Generating Station to intermediate switching station at Chakmir. The overhead conductors connecting the powers are alleged to be running over the plots of the plaintiffs and drawing of these lines commenced from 7.2.97. It has been submitted that at the time when the poles were erected neither any objection nor any resistance was offered and attempts are now being explored to take electricity connecting huge areas and if the defendants are prevented now by any interin order either of status quo or in the nature of injunction, then, the entire exercise would be put to a grinding halt and the wide areas covered by the proposed generation would remain plunged in darkness. It has prompted the authorities to make substantial and huge investment to the tune of crores of amount and the said investment may go in for vain.

5. Mr. Roy has initially submitted that the grievance does not rotate round about any threat of interference with regard to enjoyment of land at the ground level; nor it is up to a height of overhead line for transmission of energy for long areas is required to be drawn keeping a safe margin not only for all people and inhabitants of the area but also for free movement of air traffic and also for telegraphic communications which is guided and regulated by the provisions of the relevant statute which guides and controls telecommunication in general.

6. A point was sought to be raised and at least a hint was given by Mr. Roy as to how far rights of private individuals can go? Can it be said that for ascertainment of the extent of rights sky is the limit so far as altitudes is concerned.

7. According to Mr. Roy''s hint, one cannot have right beyond certain ceiling and in the wake of modern development the notion is that no right of a private individual is absolute because it is subject to inherent restriction of preservation of environmental and ecological balance. There are inherent constraints on one''s right of enjoyment of properties subject to limitation about prevention of environmental pollution and compulsory requirement for maintenance of ecological balance.

8. Mr. Roy wanted to hint that no private individual should be allowed to fly over board his land beyond certain limits and his right from the ground level should not be allowed to be transgressed into the domain of the vacuum, namely, the space where nobody has any right and therefore a substantial margin has been kept free after compliance of statutory rules. Therefore, a basic question of substantial importance has cropped up as to what extent of height the rights of a person can go and whether his rights on land can penetrate into the region of vacuum in the space above the ground level of the land. This Court has given its anxious consideration and feels that perhaps time is ripe to formulate ideas to new jurisprudence to regulate such rights and whether the right of affectation in vacuum space above the height beyond an altitude comes within the purview of one''s right of enjoyment of land. This basic question permeates the entire range of controversy and that should be taken into account in assessing the question of balance of convenience and inconvenience as also irreparable loss and injury to the party. A question was counter-posed before this Court as to what prejudice will be suffered by the opposite parties if the overhead line is allowed to be taken and thereby the rights of the petitioners to make construction to enjoy their properties in the ground level and to take usufructs or to make construction thereon are not to be affected.

9. Mr. Roy has repeated that why the opposite parties are ventilating their grievances that they will suffer irreparable loss and injury. According to Mr. Roy that even in civil adjudication balance of convenience and inconvenience is weighed in the perspective of public good and in the individual interest and a balance is also required to be drawn by a civil Court while adjudicating the controversy. In aid of such submission, Mr. Roy, learned counsel for the revisionist-petitioners has referred to the case of Mahadeo Savlaram Shelke and Others Vs. Puna Municipal Corporation and Another, A reference was drawn to paragraph 14 thereof where it has been observed by the Supreme Court that public interest is, therefore, one of the material and relevant considerations in either exercising or refusing to grant ad interim injunction.

10. In the factual matrix of the case, another crucial point which has emerged is as to whether the scheme in question and the proposed alteration can be rated as major or minor. So far as the documentary part is concerned a reference was drawn from annexure I appended to the revisional petition and reference was made about a letter dated 9.6.92 and it was mentioned therein that the actual Transmission Scheme has undergone alteration of minor nature and Mr. Roy has relied on the same. It was objected to by Mr. Bhattacharjee, learned Advocate for the Opposite Parties on the ground that the said annexure has seen the light of the day at the appeal stage after the matter was sent back on remand though the letter was bearing the date 9.6.92. Mr. Bhattacharjee has questioned the veracity of the said letter and according to him there is no explanation for such belated production of the letter in question and there is no knowing as to whether it is a genuine letter or it has come by way of an after-thought and it has been sought to be produced to improve the case in a desperate bid. Without adverting to the said controversy as sought to be raised by Mr. Bhattacharjee, this Court feels that in absence of specific direction by the court of remand that the parties will be permitted to refer to and rely upon additional materials or documents, the order directing the Court to dispose of the matter in terms of the order of remand is required to limit itself within the materials available on record and it cannot allow further materials to come. It is noteworthy to mention that materials also were not filed at the stage of the trial but only at the appeal stage a letter bearing a much earlier date has been produced and therefore, this court cannot place any reliance on the said letter and the letter in question is accordingly required to be overlooked.

11. Thereafter, with regard to the determination of the question as to whether it is minor or major, a reference was made to section 29(1) of the Electricity (Supply) Act, 1948 which provides that every scheme estimated to involve a capital expenditure exceeding five Crore of rupees shall, as soon as may be after its preparation, be submitted to the Authority for its concurrence. In the wake of the reference to section 29 it has been submitted that this amount has been altered from time to time and according to the submissions of Mr. Roy, section 32 of the said Act, particularly, authorises the Generating Company to alter or extend a scheme which in the opinion either of the Board or as the case may be by Generating Company, minor in character may be made without preparing a supplementary scheme. According to Mr. Roy, the only criteria on which the distinction between minor alteration and major alteration is made dependent i.e. about monetary allocation of the scheme and not otherwise.

12. Mr. Roy has, therefore, submitted that the same should be the criteria but the same has been controverted by Mr. Bhattacharjee by submitting that the difference between major and minor is dependent on multiple factors. According to Mr. Bhattacharjee, the Second Gazette Notification will indicate the alteration with regard to the extent of areas; namely, inclusion of a good number of Mouzaz and that by itself will be treated as an alteration. A reference was made on behalf of the Opposite Parties to the Orissa State Electricity Board and Anr. v. Peary Mohon Pattanayak & Ors. (supra). As per the said judgment sections 12 to 19 of the Indian Electricity Act would apply. A reference was made in the said judgment that if the construction of transmission line is resisted and obstructed to by the owner/occupier of the land then section 10 of the Indian Electricity Act cannot be invoked without obtaining an order from the District Magistrate as contemplated by section 16(1).

13. In the wake of the said submissions, a cursory glance is given to certain provisions, firstly to section 12 of the Indian Electricity Act and Mr. Bhattacharjee has submitted that in terms of section 12(2) of the said Act nothing contained in sub-section (1) shall be deemed to authorise or empower a licensee, without the consent of the local authority or of the owner or occupier concerned, as the case may be, to lay down or place any electric supply-line, or other work. The same appears to be u/s 12 and it is subjected to section 12(1) which relates to railway or tramway and therefore, the attention and/or reliance made by Mr. Bhattacharjee are out of place and the same may not be attracted.

14. Again going back to the question of consideration of the further matter touching the facets as to whether the proposed alteration is minor or major, a reference may be made to section 30 of Electric (Supply) Act which categorises the particulars of the matters required to be considered by the authorities of electricity. The said catalogue, according to Mr. Roy, gives an existing catena of matters to be considered by the authority and it has been submitted that even if it resumes with other than monetary criteria, some other criteria may have bearing on the determination of the question as to whether the proposed alteration is major or minor, then it must affect any of the matters as specified in different clauses in section 30 of the Electricity (Supply) Act, 1948 as the second Notification has not touched nor it has altered any of the matters covered by section 30. Therefore, according to Mr. Roy, the said second Notification cannot be termed as containing a provision for minor alteration. It has been also submitted by Mr. Roy that there is provision under the Act and the Statute which envisages the time-limit within which objection is capable of being raised in terms of statutory formality. The said objection having not been raised in compliance of the Statute by the Opposite parties whether they can be allowed to take such belated move after the entire proposal is mooted through and the same has made the authorities involved not only in huge exercises but also with huge monetary involvement. Even a reference was made to section 51 of the Indian Electricity Act which provides for exercise in certain cases of power of telegraph authority and the same contains provisions that notwithstanding section 12 to 16 and sections 18 and 19 of the Indian Electricity Act that certain powers are retained by telegraph authority particularly with respect to placing of telegraphic lines and posts for the purpose of a telegraph established or maintained by the Government. It is also necessary to keep it in mind that the prayer for injunction could be entertained at a given point of time and point of time has substantial bearing on the question. If at a point of time, a party comes and asks for restraint order and thereby a public project is allowed to be stalled then the entire balance in favour of the public authority is bound to be tilted as a result of which vast multitude of majority will be inevitably required to be plunged into darkness for want of electricity and the scheme will be a scheme in exercise in futility. The appeal Court which passed the impugned order has drawn an adverse inference for non-production or non-availability of both the schemes and as such by way of routine exercise it has noted that the trial Court has passed the order as aforesaid. The appeal Court also allowed the same. It has to be borne in mind that as they have been published in the Official Gazetted which is a public document within the meaning of section 12 of the Evidence Act and such Notification has also the effect of law under the provisions of the Constitution. Therefore, it appears that the appeal court has gone wrong by drawing an adverse inference for non-production of the order impugned. This Court in view of the detailed analysis does not intend to make further scrutiny with regard to the other dimensions of the matter which are more technical in nature, as it appears to this Court that the test of trinity guiding governance of temporary injunction are not in favour of the opposite parties in the revisional application. It is unnecessary to repeat that for the reasons as indicated the balance of convenience and inconvenience, so far as the petitioners and opposite parties are concerned, the same is in favour of the revisionist-petitioners and it has not tilted to the benefit of the opposite parties. The opposite parties are not likely to suffer irreparable loss and injury as even if overhead wire-lines are allowed to be taken and electricity energy is allowed to be taken through the overhead line running above ground level of the lands of the plaintiffs-opposite parties, they are not going to suffer any irreparable loss or injury or serious prejudice as the said order of injunction will neither affect the prayer for declaration nor it will create any blockage with regard to their prayer for injunction for enjoyment of the property as before and they are hardly to be bothered if electricity connection goes overhead to the electrical wire lines over their lands.

15. As regards prima facie case, this Court has taken pains to establish prima facie case of law because that was the crucial point which was dealt with by way of in depth analysis and without making any further sojourn into the detailed provisions of Electricity Acts and Regulations, this Court feels that it is a case where order of status quo should be allowed to be varied or vacated. Accordingly, the orders impugned are liable to be set aside and the revisional application stands allowed.

16. Prayer for stay of the operation of this order has been made on behalf of the opposite parties in order to explore their remedy before the apex Court. The said prayer is, however, strongly opposed by Mr. Roy appearing on behalf of revisional-petitioners. In that view of the matter, stay of the operation of the present order is granted for a limited period up to three weeks from this date.

Certified Xerox copy of this order, if applied for, be granted as expeditiously as possible to both the parties.

Application allowed.