- (1.) This is an application under Article 227 of the Constitution of India. This application arises out of an order dated 26th August, 2003 passed by the learned District Judge, Barasat, 24 pgs. (North) in Misc. Appeal No. 133 of 2003 setting aside the order dated 25th July, 2003 passed by the learned Civil Judge, Junior Division, Barrackpore in T. S. No. 111 of 2003. The suit was in the nature of declaration and permanent injunction. Prayers in the plaint are quoted here- under: "(a) A declaration that the plaintiffs are the exclusive owners of the suit property as specified in the schedule written hereunder and that the defendants have got no right to have any aerial encroachment of the suit property for installation of High Tension overhead electric Lines all over the suit property without having any due concurrence from the plaintiffs. (b) Permanent injunction restraining the defendants and their men and agents, employees and associates from causing any aerial encroachment upon the suit property or upon any part thereof so as to going line all over the suit property as specified in the schedule written hereunder till final disposal of the suit. (c) cost of the suit. (d) Any other relief or reliefs."
(2.) In such suit, an application under order 39 Rules 1 and 2 read with section 151 of the Code of Civil Procedure was made by the plaintiffs before the Court of first instance. The prayer in such application is as follows : "The defendants are hereby restrained from causing any aerial encroachment upon the suit property or upon any part thereof so as to going for installation of high tension over head electric lines all over the suit property as specified in the schedule of the injunction application till the disposal of the suit. The ad-interim order of injunction is thus made absolute. The temporary injunction application is thus allowed on contest".
(3.) Challenging the said order, the Calcutta Electric Supply Corporation Limited (hereinafter called as C. E. S. C. Ltd.) preferred an appeal before the learned District Judge, where under it was held that the work of the C. E. S. C. Ltd. is done under a sanctioned scheme with due notification and most part of it has been completed and it cannot be implemented finally as the chains from two sides by way of erection of towers cannot be connected with the electric supply line running over the property of the respondents (plaintiffs) for their resistance through the interim order of injunction. The learned Judge appreciated the worries of the respondents that running of the electric supply line with high voltage electricity may affect in some way their lands since he will be resisted from making vertical construction over the same but the scheme is running with the provision of making compensation for the loss in execution of the scheme over the suit property. The learned Judge further held that the respondents can be satisfied with the payment of compensation to the loss they are facing under the scheme like others. The spirit of the order, as I have understood, the public purpose will be given importance over the public necessity.;