IMPORTANT POINT
The plaintiff failed to prove unlawful possession by the defendants as he accepted conditions for land conversion, leading to the dismissal of the appeal.

JUDGMENT :

SANGEETA K. VISHEN, J.

Captioned appeal is directed against the judgment dated 17.12.2012, Exh.150 passed by the learned Principal Senior Civil Judge, dismissing the Special Civil Suit No. 61 of 2000 (hereinafter referred to as ‘the suit in question’) filed by the appellant – plaintiff (hereinafter referred to as the ‘plaintiff’). The plaintiff had filed a suit in question, inter alia, praying for compensation of Rs.45 lac from the defendants – Gujarat Energy Transmission Corporation and another (hereinafter referred to as the ‘defendants’).

2. The facts, in nutshell, are that the plaintiff and his brother – Ranchhodbhai Jerambhai are the owners and occupiers of the ancestral land bearing survey no.439/2, situated in the city of Gondal and located on the eastern side of Jetpur Road, which was partitioned equally and the plaintiff was allotted land admeasuring acre 2 and 20 gunthas (hereinafter referred to as the ‘land in question’). Somewhere in the year 1979, 220 K.V. Gondal - Jetpur line was erected, as per the provisions of Section 42 of the Indian Electricity Act, 1948 (hereinafter after referred to as the ‘Act of 1948’) and was passing through the land in question.

3. Subsequently and in the years 1996 and 1997, the plaintiff submitted applications under the provisions of the Gujarat Land Revenue Code, 1879 (hereinafter referred to as ‘the Code’), seeking conversion of the land from agriculture to non-agriculture which came to be granted vide order dated 21.04.1997 containing certain terms and conditions. It is thereafter, that the plaintiff started developing the land in question and in the process, had put up certain construction near the Jetpur – Gondal line, which led to the issuance of notice dated 21.11.1998 by the defendants. The plaintiff was directed to stop the construction, followed by filing of Regular Civil Suit no.55 of 2001, which came to be decreed vide judgment dated 22.01.2004. In the interregnum, the plaintiff had filed suit in question, inter alia, seeking direction against the defendants not to restrain the plaintiff to utilise the land or in alternative to pay compensation of Rs.45 lac. The suit came to be rejected vide impugned judgment dated 17.12.2012, Exh.150 (hereinafter referred to as "the impugned judgment") and hence, the captioned appeal.

4. Mr Nishit P. Gandhi, learned advocate for the plaintiff submitted that as the defendants tried to restrain the plaintiff from using the open and peaceful usage of the land in question, that the suit was filed. Evidence was produced on the record; however, the learned Judge, did not properly consider the evidence while passing the impugned judgment. It is submitted that it is not in dispute that the plaintiff is the owner of the land in question. It is also not in dispute that the high tension (HT) electricity line of 200 K.V. is passing through and as a result, the land in question has been rendered unusable. It is submitted that plaintiff is required to keep 18.00 mtrs. on either side, i.e. total 36.00 mtrs. of land open and thereby, depriving him to enjoy the possession and that too without there being any acquisition of the land in question. Such a course adopted by the defendants, is completely without jurisdiction and authority of law.

4.1 It is submitted that possibly, the defendants have invoked the provisions of Rule 80 of the Indian Electricity Rules, 1956 (hereinafter referred to as the ‘Rules of 1956’), which otherwise, is not available for issuing the notice dated 21.11.1998. Besides, there is no proceeding initiated by the District Collector for breach of any of the conditions contained in the NA order. It is further submitted that neither the land in question is acquired by the defendants nor is there anything to suggest that the compensation was paid to the plaintiff at the time of erection of HT line. Therefore, the defendants either shall remove their overhead HT line passing over the land in question or compensate the plaintiff as