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Miscellaneous Civil Appeal No. 67 of 1981, decided on 27th May, 1982.

‑‑Ss. 9 & 17‑Land acquisition‑Possession‑Notice under S. 9 and Notification under S. 17 of Act issued‑Collector, held, authorised to enter into possession on expiry of 15 days after issu ance of notice.

‑‑S. 100, O. XXXIX, rr. I & 2 and Land Acquisition Act (I of 1894), Ss. 4, 9 & 17‑Temporary injunction‑Appellants dis possessed after acquisition of their land by respondents‑Prima facie no case made out and balance of convenience lay rather in favour of respondents likely to suffer if injunction granted‑Appeal against refusal of lower Court to grant injunction dismissed.‑[Injunction].

Jhamat Jethanand fir Petitioner.

Abdul Hameed Khan for Respondents.

Date of hearing ; 23rd May, 1982.

This appeal (M;A. No. 67 of 1981) is directed against the order dated 30th November, 1981. of the II Senior Civil Judge, Hyderabad, whereby he dismissed the prayer for temporary injunction in the suit pending before him. As stated in, the order the land in suit originally belongs to the appellants who have been running stone crushing‑plant on the land since 1970. It is alleged that on 14‑9‑1981 the respondents Nos. 2 and 3, with assistance of their subordinates demolished certain building structures including the boundary wall around the land and disrupted power connec tions whereupon the appellant instituted a suit for injunction and damages. Pending final disposal of the suit the appellants moved an application for temporary injunction which was dismissed by the learned Judge by the impugned order as stated above.

2. The learned counsel for the parties have submitted their argu ments in support of their respective view‑ points.

It goes without saying that the land in suit is originally the property of the appellants. The stand taken by the respondents, however, is that the land has been acquired for construction of the colony for WAPDA employees. According to them necessary notifications have also been issued under the Land Acquisition Act, 1894 (hereinafter referred to as the said Act). As against this, the appellants grievance is that the procedure envisaged by the said Act has not been followed and as such legal acquisition of the land has not taken place. They claim that they are still in possession of the land which is being unauthorisedly interfered with by the respondents.

3. The issues raised by the appellants in the suit are yet to be deter mined in the light of evidence to be adduced by the parties. Pending their final adjudication, if interim relief were to be allowed, the Court would look for fulfilment of the three conditions; firstly whether prima facie case has been made out by the appellants; secondly, whether balance of convenience is in their favour; and thirdly, whether the appellants are likely to suffer an irreparable loss if the interim stay is not granted.

4. As for the first two conditions, the learned lower Court has observed that the Gazette notification produced by the respondents are a prima facie proof of the acquisition of the land. I have gone through the Gazette notifications. They were obviously issued as far back as 1975 under the relevant provisions of the said Act, namely, sections 4, 9 and 17. The notification under section 4 entitled the respondents to enter upon the land and make survey and do all such acts as are necessary to ascertain if the land would be suitable for the purpose it was needed. The intention of the notice under section 5 is to inform all those who are interested in the land that the Government wanted to take possession of the land and claim as compensation is to be made to the Collector. Again by the notification under section 17 the provisions of section 5‑A were made inapplicable in the instant case and the Government was authorised in the case of urgency to take over possession of the land at the expiry of 15 days from issuance of the notice referred to above. It would appear that the Collector was actually directed to take over possession after 15 days from issuance of the said notice. The notice under section 9 was issued on 7‑6‑1978. The presumption would be the respon dent entered into possession 15 days after this date.

5. It was however, contended by the learned counsel for the appellants that there is evidence to show that .the possession was never taken over from the appellants. The contention is without force. It was not necessary to hold a 'formal ceremony to authenticate the passing of the land from appellant's possession. The moment the notice under section 9 and notification under section 17 of the said Act were issued, the Collector became authorized to enter into possession at the expiry of 15 days period from issuance of the notice. The respondent's case is that pursuant to the notifications they did enter into possession which was however unauthorizedly interrupted by the appellants with the result that action under M.L.O. 130 had to be taken for removing their encroach ment. This finds support from the letter No. 120/20/GS (Nil) dated 21‑9‑1981 of Major Imtiazul Haq addressed to the Executive Engineer, WAPDA, Hyderabad, which is available on file of the case. The letter records as under :‑

"Restricted"

Headquarters SMLA Sub‑Sector A

Hyderabad (Sind)

Telephone: Military : 225

120/20/GS (Nil)

21 September 1981

To

Executive Engineer,

Civil Works Division (E)

WAPDA, Bungalow No. 2‑A,

Latifabad. Hyderabad.

Subject :‑Encroachment of WA PDA Land in Deb Sari, Hyderabad.

Your letter CWD/289 dated 23rd September, 1981 refers.

The action taken to remove the encroachment from the above men tioned land in Deb Sari, Hyderabad was under M.L.O. 130. Hence the concerned Court may be informed accordingly of its jurisdiction.

Sd/‑

Major .

for SMLA

(Imtiazul Haq)

6. Apart from above, the learned counsel for the appellants was constrained to concede that the appellants are no longer in possession of the land as they have been dispossessed only recently.

In the above circumstances, the appellants cannot be held to have made out a prima facie case. Contrary to their stand the respondents have fairly established their case from series of the documents produced by them. The respondents being in possession of the land, balance convenience is rather in their favour than in favour of the appellant. It would be the respondent who would suffer on account of grant of the interim injunction. In that eventuality the construction work of the colony would come to standstill and it would not be possible for them to provide accommodation to their employees on schedule.

7. Apart from above the learned counsel for the respondents also questioned the maintainability of the appeal. He pointed out that the requirements of sub‑rule (1) of rule 3 of Order XLIII, C.P.C. have not been fulfilled. The mandatory notice was not given to the respondents before filing the appeal. I need not go into this aspect of the appeal which is liable to be dismissed even on merits.

8: For the foregoing reasons, there is no merit in appeal which is hereby dismissed with costs.

M. Y. H. Appeal dismissed.

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