A.L.VAIDYA, J. - (1.) THE subject matter of the dispute is the land described in khewat/khatauni No. 145-min-253 bearing Khasra No. 632/7 and 74, Kitas 2, measuring 1.96.20 hectares, situate in Mauza Baag Buhla/Dehan, Pargana Naval, Tehsil Palampur, Distt. Kangra. The present appellants have preferred a suit for declaration of the effect that the aforesaid land was being used for the benefit of village community including playground of the school and as such was not liable to vest in the State of Himachal Pradesh (defendant No. 1) as envisaged under Section 3 of the H.P. Village Common Lands (Vesting and Utilisation) Act, 1974 (hereinafter to be called as 'the Act'). Consequential relief of permanent injunction has been asked for to restrain defendants No. 2 and 3 from interfering with the exclusive enjoyment of the land in dispute by village community as a playground for the school as well as for holding annual fair.
(2.) IN the aforesaid suit, an application under Order 39 Rules 1 and 2 read with Sections 151, 141 and 94 of the Code of Civil Procedure was preferred, wherein it had been alleged that defendants 2 and 3 were going ahead with the allotment of work and consequentially further going to start construction of 132 KV Grid sub-station and other constructions over the land in question and, according to the applicant-plaintiffs, in case they were allowed to do so, the very purpose of filing the suit would be defeated. It was prayed through the present application that defendants 2 and 3 be restrained from raising any constructions either in response to the notice inviting tenders dated 26.9.1994 published in Daink Punjab Kesari, Jalandhar in respect of items 10 to 12 contained therein or any other sort of construction over the land in suit. According to the applicant-plaintiffs, the land comprised in Khasra No. 15, which was situated adjacent to the suit land, has been leased out by the State of H.P. (defendant No. 1) in favour of defendant No. 2 for the construction of 132 KV Grid Sub-station. As this land was contiguous to the land in dispute defendant No. 2 under the garb of lease in its favour, in respect of Khasra No. 15, was encroaching upon the land in dispute whereby the plaintiffs apprehend that their rights in continuous enjoyment of the land in dispute were likely to be interfered with. In reply to the aforesaid application, defendants 2 and 3 submitted that the plaintiffs had no prima-facie case in their favour nor the balance of convenience was in their favour. According to them, the plaintiffs had no right, title or interest in the property and the present suit has been filed with a view to harass the respondents and to stop the public utility project. It was submitted that setting up of 132 KV sub-station at Dehan would serve 80,000 consumers in the District of Kangra. The contesting defendants very specifically pleaded that earlier a suit in representative capacity was filed by one Sh. Amrik Singh of village Maranda, Tehsil Palampur, Distt. Kangra for similar reliefs, as stated in the present suit, who had also prayed for interim injunction by moving an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, which application was disallowed by the Court of Sub Judge, Palampur, on 7.10.1993 and thereafter, the suit was not pressed and was dismissed by Sub-Judge, Palampur on 20.9.1994. Thereafter, according to the defendants, a civil writ petition No. 193 of 1994 was filed by one Sh. Mani Ram son of Sh. Lehnu of village Dehan, Tehsil Palampur, Distt. Kangra, against the State of H.P. which, after hearing the replying defendants, was dismissed as withdrawn on 30.3.1994. It was further averred that the suit was not maintainable and on the allegations made the Civil Court had no jurisdiction to adjudicate upon the controversy between the parties whether the property was rightly vested under Section 3 of Act, in favour of defendant No. 1 or not. It was also pleaded that in order to improve and strengthen the Electrical supply, a scheme for construction of 12 KV Sub-station Transmission line from Bassi to Palampur with 2 x 66, 132 KV sub-station at Palampur was started by the defendant No. 2 on the estimated cost of Rs. 583.222 lacs and this scheme had been notified under Section 29 of the Indian Electricity (Supply) Act, 1948. This notification also indicates route of line and sub-station but no objection to that effect had been made against the said notification. It was also pleaded that the suit land was leased out in favour of defendant No. 2 and the permission to start the work was given by the Gram Panchayat Dehan (Palampur) vide its resolution No. 5 dated 12.7.1991 and on this project Rs. 372.27 lacs had already been spent by the defendants. The necessary permission of the Central Government under the provisions of Forest (Conservation) Act, 1980 has also been procured for the construction of the aforesaid 132 KV sub-station.
(3.) ORIGINALLY , this suit was being tried in the High Court, but because of the amendment made in the H.P. Courts Act, this case was transferred to the files of the District Judge, Kangra at Dharamshala.;