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2000 DIGILAW 514 (PNJ)

Junior Engineer v. Satya Narain

2000-05-12

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - The delay of 105 days in refiling is hereby condoned. This is a defendants appeal and has been directed against the judgment and decree dated 30.8.1999 passed by Additional District Judge, Gurgaon, who set aside the judgment and decree dated 4.11.1997 passed by Civil Judge (Senior Division), Gurgaon, who dismissed the suit of the plaintiff Satya Narain, and the first Appellate Court granted a decree as prayed for in favour of the plaintiff-respondent against the defendant-appellants, and the defendants were restrained from installing any electricity pole in the land of the plaintiff and also from providing electricity supply to transformer at point A from the main line at point C. 2. The brief facts of the case can be noticed in the following manner :- Satya Narain-plaintiff owns agricultural land comprised of Rect. No. 44, Killa Nos. 11, 20/1 and 21 and some other land situated in the revenue estate of village Noorgarh, Tehsil Pataudi, District Gurgaon. There runs heavy voltage electricity line shown by letters CB in the site plan attached with the plaint. According to the plaintiff, as per sanctioned plan of the defendants, an electricity transformer was to be installed at point A from point B for supplying electricity over the land belonging to Bakhtawar Singh son of Sukhdev Singh resident of village Noorgarh. The distance between points B and A is 625 feet. Further, the plaintiff alleged that the defendants in collusion with Bakhtawar Singh now threatened the plaintiff to provide electricity supply to the transformer at point A from point C by erecting poles in the land belonging to the plaintiff. The distance between points C and A is 750 feet. The grievance of the plaintiff was that crops of wheat and mustard are standing in his land and by erecting of poles his crops would be damaged and he would suffer irreparable loss and injury. Moreover, the distance between points B and A being less than that in between points C and A, it would be convenient and beneficial for the defendants to provide electricity supply to the transformer at point A from the main line at point B. The defendants were called upon to rectify their mistake, but to no effect. Hence, the suit. Moreover, the distance between points B and A being less than that in between points C and A, it would be convenient and beneficial for the defendants to provide electricity supply to the transformer at point A from the main line at point B. The defendants were called upon to rectify their mistake, but to no effect. Hence, the suit. A joint written statement was filed by the defendants and they pleaded that in furtherance of a sanctioned plan to provide improved voltage electricity supply to the existing tubewells, one pole in the land belonging to the plaintiff and two poles in the adjoining land for placing a transformer over there have already been installed and only the work of laying wires on these poles from the existing 11 KV line remains. They denied the other allegations of the plaintiff regarding collusion with Bakhtawar Singh. They further pleaded that the poles have been erected rightly in correct position and any deviation of these poles would result in interference in four-Karam Rasta causing great inconvenience. It was also pleaded by the defendants that under Section 42 of the Electricity (Supply) Act (hereinafter referred to as the Act) they are full empowered to do the act done and required to be done and the plaintiff has no right to challenge the same. 3. The above small pleadings of the parties gave rise to the following issues :- 1. Whether the plaintiff is owner in possession of suit land given in para No. 1 of the plaint ? OPP 2. Whether the defendants have no right to erect the electricity line in plaintiffs land ? OPP 3. Whether the suit of the plaintiff is liable to be dismissed in view of Section 42 of the Electricity Act ? OPD 4. Whether there is no cause of action ? OPD 5. Whether the plaintiff has not come with clean hand in the court ? OPD 6. Relief. 4. Both the parties led evidence in support of their respective cases and for the reasons contained in paras No. 13 to 19 of the judgment dated 4.11.1997, the learned trial Court dismissed the suit of the plaintiff and the reasons adopted by the learned trial Court are reproduced as follows :- "13. The onus to prove this issue was on the plaintiff. The onus to prove this issue was on the plaintiff. The plaintiff when appeared as PW1 deposed that he is owner of 15 acres of land. The electricity department wants to install electric line through his fields which is having long distance. The site plan Ex. P1 is as per the existing position. The line AB is at short and in this way the department can save money. The estimate of line AB was sanctioned. 14. PW2 Dalip Singh also supported the contention of the plaintiff. 15. To rebut this DW1 Jai Lal, JE has stated that he has brought the summoned record. In village Noorgarh 100 KV transformer has been installed which is overloaded and the consumers have lodged complaints regarding low voltage. On receipt of application EX. DW1/1 estimate was prepared which was duly sanctioned by the XEN, HSEB. Photocopy of the same is Ex. DW1/2. Voltage drop calculation was prepared which is duly signed by the SDO, photocopy of the same is Ex. DW1/3. Ex. DW1/4 is the abstract of estimated amount and Ex. DW1/5 is the site plan of the line which was prepared by the Junior Engineer. 16. The submission of the counsel for the plaintiff is that DW1 has admitted this fact that electric connections have been disconnected. So, there is no possibility of low voltage He further submitted that as per site plan Ex. P1 the distance from point AB is short, so the department should be restrained from installing electric line as per estimate. 17. The submission of the counsel for the defendant is that plaintiff is nobody to suggest the way from where the line is to be installed. It is the department who has to see from where the electric line is to be passed and to prove the estimate etc. 18. I have considered the arguments addressed by both the counsel for the parties. 19. The case of the plaintiff is that electric line should not pass through his fields. On the other hand the department has placed on record various documents i.e. Ex. DW1/1 request of the residents regarding low voltage and on the basis of that estimates were prepared which are Ex. DW1/3 and DW1/4 and after that sanction was given vide letter Ex. DW1/2. The site plan Ex. DW1/5 also indicates the position at the spot and regarding details of the connection. DW1/1 request of the residents regarding low voltage and on the basis of that estimates were prepared which are Ex. DW1/3 and DW1/4 and after that sanction was given vide letter Ex. DW1/2. The site plan Ex. DW1/5 also indicates the position at the spot and regarding details of the connection. The law is well settled on this issue as reported in case titled Dr. Mohan Lal v. The Haryana State Electricity Board and others, 1989(2) The Punjab Law Reporter (P&H) 380 wherein it was observed that :- "Section 42 of Electricity (Supply) Act, 1948 (54 of 1948) empowers the Board to place any wires, poles, wall brackets, stays, apparatus and appliances for the transmission and distribution of electricity - Acquisition such land is not envisaged - Any person who suffers any damage can claim compensation under Indian Telegraph Act, 1885 (15 of 1985)." The facts of the above reported case law are that the plaintiff purchased one Kanal land and constructed house. The electricity department wanted to erect a tower for supplying transmission lines. The lower court granted the stay. The learned Appellate Court dismissed the appeal. The aggrieved party went in revision and the Honble High Court laid down the above principle. In the case in hand the plaintiff is at liberty to claim compensation under the Indian Telegraph Act, 1885. The scheme has been duly sanctioned by the competent authority in due course of their duties. No iota of evidence has been placed on record by the plaintiff that there is any ill-will. Even if it is so, the plaintiff has got no right for stopping the said electric line as it will affect other persons/residents who have also got electric connections. As such this issue is decided against the plaintiff and in favour of the defendants." 5. Aggrieved by the judgment and decree of the trial Court, the plaintiff filed appeal before the first Appellate Court, which, for the reasons given in paras No. 10 to 15 of the judgment dated 30.8.1991, reversed the findings of the trial Court and decreed the suit of the plaintiff and in this manner, the present appeal. 6. I have heard Mr. Amarjit Singh, learned counsel on behalf of the appellants and with his assistance have gone through the record of the case. 7. Two-fold contentions were raised by the learned counsel for the appellants. 6. I have heard Mr. Amarjit Singh, learned counsel on behalf of the appellants and with his assistance have gone through the record of the case. 7. Two-fold contentions were raised by the learned counsel for the appellants. Firstly, that it was not necessary to formulate a scheme under Sections 28 and 29 of the Act, because the project was of less than Rs. 5 crores. In the alternative, it was pleaded by the learned counsel for the appellants that the scheme was framed but since it was not published and in these circumstances the suit of the plaintiff could not be decreed. Mr. Amarjit Singh further submitted that at the most the suit of the plaintiff for damages was maintainable and he could not file a suit for injunction. In support of his contention, the learned counsel relied upon Dr. Mohan Lal v. The Haryana State Electricity Board and others, 1989(2) The Punjab Law Reporter (P&H) 380. 8. I have considered the submissions raised by the learned counsel for the appellants. Firstly it is not the case set up by the defendants in the trial Court that a scheme was formulated and was not published. It is also not the case of the defendants that the scheme involved an expenditure less than Rs. 5 crores. There is no such issue nor there is any satisfactory evidence led by the defendants on the record. The scheme was not published nor the objections were invited from the land-owners. In these circumstances, if any scheme was formulated, it rested with the defendants in their office. With regard to the legal arguments raised by the learned counsel for the appellants that plaintiff could only file a suit for damages, this argument is not acceptable in view of the fact that the defendants in connivance with Bakhtawar want to change the route of the transmission line in order to cause loss to the land of the plaintiff. It is a continuing act of violation on the part of the defendants and also it was the breach on their part and in these circumstances the suit of the plaintiff for mandatory injunction was always maintainable because the defendants have not so far completed their action. No merit. Dismissed. Revision dismissed.