2021 PLP 1852 (YLR)

LUBNA SALEEM PERVEZ, J.--Through present Civil Revision, the petitioners, who are resident of Mohalla Satra-Meel Mallach, Phulgran, Bhara Kahu, Islamabad and owners of the suit land, assailed order dated 05.09.2020, passed by the learned Additional District Judge, Islamabad-East, whereby the appeal filed by them against the dismissal of application under Order XXXIX, Rules 1 and 2 of C.P.C., for temporary injunction, vide order dated 21.02.2020 by the learned Civil Judge 1st Class, Islamabad, was dismissed.

2. Necessary facts are that the petitioners filed suit for declaration, permanent, mandatory Injunction before the learned Civil Judge, Islamabad seeking declaration on the grounds that the defendants have no right to install and pass electricity transmission lines over their land. In order to obtain restraining order against the respondents, the present petitioners filed application under Order XXXIX, Rules 1 and 2 of C.P.C., along with the suit. The said application was dismissed by the learned Civil Judge, vide order dated 21.02.2020. The appeal against the said order also failed, vide judgment dated 05.09.2020, passed by the learned Additional District Judge, Islamabad-East. Hence, present Civil Revision.

3. Learned counsel for the petitioners while reiterating the same arguments made before the learned trial and appellate Courts submitted that the petitioners are the owners in possession of the suit land and the electricity poles installed thereon by the respondents are illegal; that due to high transmission electricity lines, the lives of the residents of the area are exposed to immense danger; that the respondents before installing electricity poles on their land have not complied with the provisions of section 14(2) of the Wapda Act, 1958; that the respondents have also violated proviso to section 14(1) of the Wapda Act, 1958 as they have interfered with the rights of the owners of the suit land; that the electromagnetic waves are also hazardous to human health, thus violates the principles laid down in famous Shehla Zia's case reported as PLD 1994 SC 693 that the land is not dedicated to public use; that the respondents have acted contrary to the provisions of section 12(d) of the Electricity Act, 1910. He submitted that the petitioners have good prima facie case and the balance of convenience is also leans in their favour and unless interim injunction is not granted the petitioners would suffer irreparable loss. He prayed for setting aside of the impugned orders and acceptance of application under Order XXXIX, Rules 1 and 2 of C.P.C. The learned counsel in support of his contention relied on the case law reported as Nisar Ahmed v. Masood Akhtar (2011 SCMR 226), Water and Power Development Authority through Executive Engineer v. Ch. Bashir Ahmed and another (1994 MLD 808) and GEPCO and others v. Arshad Mehmood (PLD 2017 Lahore 723).

4. On the other hand, learned counsel for the respondents, strongly opposed arguments of the learned counsel for the petitioners and submitted that the suit land is a barren land whereon the electricity poles are installed since, 1984 and the respondents are only replacing these already installed poles with new and innovated form of the electricity poles having width of 6x6 feet as against 10x10 feet and height about 100 meters as against 60 meters of the previous poles, therefore, no risk would be caused to the owners of the land due to updated technology rather the height of the poles would minimize the chances of any kind of hazard to human life. Moreover, there is no proof of any incidence or accident due to the poles on the suit land. He supported the impugned order and judgment dated 21.02.2020 and 05.09.2020 and prayed for dismissal of present civil revision.

5. I have heard the arguments of the learned counsel for the parties. Perused the orders/judgments and record of the case.

6. The petitioners' suit for Mandatory Injunction against installation of electric transmission lines with the alternate plea of compensation for using the suit land of the petitioners is pending before the learned Civil Judge, however, their application under Order XXXIX, Rules 1 and 2, C.P.C. for stay of erection/replacement of electricity poles was rejected by the learned Civil Judge, vide order dated 21.02.2020 and afterwards their appeal before the learned Additional District Judge met the same fate, vide his judgment dated 05.09.2020. It has been admitted by the petitioners that the suit land is barren and since, 1984 an electricity pole already exists at the place, where the respondent is replacing a new pole. The petitioners, admittedly, have not moved any application for removal of the same before any concerned authority since, its installation, thus, the contention of the Petitioners regarding installing altogether a new pole on their land is ill-founded. As regards the plea of hazardous effects of the transmission lines, learned counsel for the respondents placed the photographs of old and new electricity poles before the Court for comparison which clearly exhibit that the old electricity poles have occupied more space and are smaller in height, whereas, the new electricity poles are being installed in a smaller area of 6x6 feet having height of about 100 meters as explained by learned counsel for Respondents, thus this plea of the petitioners has no force in view of the fact that the replacement of the existing electricity poles by the new ones apparently are of minimum risk to the residents/public. Further the demand of compensation by the petitioners as an alternate plea has negated the claim of having a good prima facie case, balance of convenience and irreparable loss to the petitioners. It has also been observed that the work of installation has almost completed, therefore, there is no valid ground for grant of interim injunction at this stage. I am also in agreement with the reasons for rejection of petitioners' stay application by the learned Additional District Judge that public good overrides individual interest based on the judgment reported as Wapda through its Project Director, Grid System Construction, Multan v. Pakistan Atomic Energy Commission Employees Co-operative Housing Society Ltd. Islamabad (PLD 1993 Lahore 237). Record further shows that the electricity has been provided in the locality from the these electricity poles which have been replaced with the new poles, as such, any order of the courts would have an adverse effect to the residents of area, who are being supplied electricity by these poles. Thus, this court is not inclined to grant stay to the disadvantage of a large number of consumers of electricity against few individuals, who alternately demand compensation for erection of electric poles on their land meaning thereby the petitioners are suffering monetary loss on account of the use of land for erecting electric poles, which loss can be measured in terms of money and, therefore, it is not a case of irreparable loss. Reliance is placed on the judgment of this Court passed in case of Nauman Azhar v. Celvas (Pvt.) Ltd. (2020 CL C 675). Reliance is also placed on the judgment of Hon'ble Lahore High Court re: Wapda v. Pakistan Atomic Energy Commission Employees Cooperative Housing Society (PLD 1993 Lahore 237), whereby, the Hon'ble Court has observed that no stay order can be granted which interferes in the performance of public duties merely for the reason that as a result of that act individual will suffer monetary loss which can be measured and compensated in terms of money. Further Hon'ble Sindh High Court, vide judgment in case of Ghias ud Din v. Executive Engineer Wapda (1989 CLC 200) has held that Wapda having authority to enter upon land for erecting poles, lay wires to energize the power for supply of electricity and transmit the same under scheme did not contravene any law.

7. Guidance in respect of grant of interim injunction under Order XXXIX, Rules 1 and 2 has also been taken from the dictums laid down by the Hon'ble Supreme Court in the following cases wherein its has been held that:- "Puri Terminal Ltd. v. Government of Pakistan through Secretary, Ministry of Communications and Railways, Islamabad and 2 others (2004 SCMR 1092):-- "injunction is a form of equitable relief and is to be issued in aid of equity and justice but not in aid of injustice

For grant of such relief, it is mandatory not only to establish that petitioner has a prima facie case, but also that balance of convenience is on his side and that he would suffer irreparable loss injury/loss unless he is protected during the pendency of suit. ". "Water and Power Development Authority through Chairman, Wapda v. Ch. Bashir Ahmed and others [1996 SCMR 1516]:- "Wapda on account of conferment of such powers could lawfully erect poles and lay the wires without consent of plaintiff and without obtaining prior permission of District Magistrate

Leave to appeal was granted to consider the points raised by Wapda.".

8. The other important ingredient to grant relief under Order XXXIX, Rules 1 and 2 is the balance of convenience which, under the facts and circumstances of the case, leans towards residents of area, who are being facilitated with the supply of electricity through the poles and would be made to suffer if any interim stay is granted. Hon'ble Lahore High Court, Lahore also in the case of Manzoor Textile Mills Ltd. v. Special Judge Banking, Lahore and others." [1996 CLC 422] has observed in this regard that:- "Determining balance of inconvenience, interest of individual must give way to public interest. Balance of convenience would thus, lie in favour of respondents, therefore, grant of stay order in favour of petitioners would be against public policy. Petitioner, would not be entitled to grant of stay order because its failure to prove that it would suffer irreparable loss if stay order was not granted in its favour.".

9. The petitioners are unable to satisfy the Court regarding the irreparable loss may be caused to them by replacement of old poles erected since, 1984, with the new ones, if the application for interim injunction is not granted. Moreover, balance of convenience also does not lean in favour of the petitioners, whereas, prima facie case is yet to be proved through evidence in the main suit. The impugned judgment dated 05.09.2020 is, therefore, upheld as learned counsel for petitioners has failed to point out any irregularity or infirmity or jurisdictional defect in the same. The instant civil revision petition, is accordingly dismissed, as being devoid of any merit. MQ/8/Isl. Revision dismissed.