- (1.) D. K. Seth, J. In this case, in a suit being Original Suit No. 161 of 1995 against the petitioner, the U. P. State Electricity Board, an application for injunc tion was moved restraining the defendants, petitioners herein, from planting poles on the land of the plaintiff opposite party No. 2 herein. The injunction was refused" by the learned Munsif by order dated 20th May, 1995 against which Misc. Civil Appeal No. 217 of 1995 was preferred by the plaintiff which was disposed of by the Additional District Judge, XIth Court, Varanasi by order dated 7th of July, 1995. It is against this order the present application has been filed.
(2.) ON the prayer of the learned counsel for the petitioner, leave is granted to convert this application under Article 227 of the Constitution. Mr. Ashok Srivastava holding brief of Mr. N. C. Rajvanshi contends that since there is an approved scheme, therefore, Sections 12 to 19 of the Indian Electricity Act will not be applicable and the procedure for implementation of the Scheme would be carried on by virtue of Section 42 of the Indian Electricity (Supp ly) Act which empowers the electricity authority to exercise the same powers as are envisaged in Section 10 of the Indian Telegraphs Act, 1885. The learned trial Court had rightly rejected the application whereas in the lower appellate court, the petitioners could not get adequate opportunity so as to file their counter affidavit and bring on record the said scheme and the fact that the entire project is almost complete except the particular pole which is to be planted on the land of the plain tiff-opposite-party. Mr. Sankatha Rai, learned counsel for the opposite party, on the other hand, contends that there is no existence of the scheme. Therefore, the contention of Mr. Srivastava cannot be accepted. It was never disclosed either before the trial Court or in the appellate court that there was any scheme. His further contention was that the suit may be disposed of instead of dealing with the interlocutory matters.
(3.) MR. Srivastava has produced a Zerox copy of the scheme which has since been published in the U. P. Gazette dated 7th November, 1987 in which the said scheme was published in the form of a notice. Therefore, it appears that there is a scheme. He draws my attention to Item No. 8 of the said scheme under the heading 'transmission Line' which includes the line Anpara-Varanasi. According to him, the said line falls within the said scheme. In case such a scheme is there, in that event, there is no doubt that Section 42 of the Indian Electricity (Supply) Act would be attracted by reason whereof Sections 12 to 19 of the Indian Electricity Act will not be applicable. By reason of operation of Section 42 of the Indian Electricity (Supp ly) Act, the provision of Section 10 of the Indian Telegraphs Act would be at tracted. The provisions of Indian Telegraphs Act clearly provide that all lands ex cept the property vested in or under the Control and Management of any local authority can be used for the purpose of planting such poles without permission. The only remedy of the owner or occupier of such property is to obtain full com pensation but the ownership would remain with the owner or occupier while the electricity authorities or the Government would only be entitled to the right of user of the portion of the land occupied by the said pole for the purpose of maintaining and repairing the same, Mr. Sankatha Rai, on the other hand, contends that this very land does not fall within the scheme of the said Anpara-Varanasi as has been sought to be alleged by the petitioners. According to him, Section 16 of the Indian Telegraphs Act would be applicable in respect of any dispute that might be raised as to the question of compensation.;