Dr. Mohan Lal vs Haryana State Electricity Board and Others

A.P. Chowdhri, J.—facts necessary for the disposal of this revision petition are that the petitioner Mohan Lal purchased one Kanal of land described in detail in the heading of the plaint in village Shadipur Tehsil Jagadhri by registered sale deed 27.12.1985 for Rs.28,900/-. He has made construction thereon upto the plinth level beside to a boundary wall. Some time before the institution of the suit out of which the present revision has arisen, he discovered that officials of the Haryana State Electricity Board, "the Board'' for short were taking steps to construct the erect a tower for laying transmission lines with overhead high tension wires on his said plot. He had no notice of any such move by the Board nor was the land in question was acquired by the Board. The petitioner, therefore, instituted a suit for permanent injunction restraining the Board from erecting a tower and also from laying overhead lines in the plot. Along with the suit, he made an application under Order 39 Rule 1 and 2 Civil Procedure Code. The learned trial Court issued ex-parte interim injunction restraining the Board from erecting a tower or laving the overhead lines in any portion of the plot in question. The Board put in appearance and stated that the work of transmission lines from 66 K.V. Sub Station Radour Road, Yamuna Nagar to Bhud Kalan Power House had been undertaken. In all 105 towers were to be erected. Work had been completed in so far as the other towers were concerned. The tower proposed to be erected in the plot in dispute being No.96 was the only tower left to be constructed. Work on the entire project had been held up because of the ex parte interim injunction granted by the Court. It was further stated that the Project was being implemented under a Scheme which was duly approved by the Chief Engineer vide his Memo, dated 11.8.1987 in accordance with the provisions of Sections 28 and 29 of the Electricity (Supply) Act, 1948 hereinafter referred to as (''the Act'') which was duly published in accordance with law.

The learned trial court came to the conclusion thatprima facie the plaintiff was shown to be owner of the plot on the basis of entries in the Jamabandi for the year 1985-86 and sale deed dated 27.12.1985. No material having been placed before the trial Court with regard to publication of the Scheme referred to in Section 28 and 29 of the Act, is was held that action of the Board wasprima facie not valid and accordingly the ad-interim injunction was made absolute. Learned trial Court also observed that no prior notice had been given to the plaintiff nor was the land in question acquired by the Board.

Aggrieved by the order, the Board preferred an appeal. During the hearing of the appeal, the Board was allowed to produce a copy of the Gazette notification dated 8.6.1982 as also of the Newspaper in which the aforesaid Scheme had been published in compliance with the provisions of Section 28 & 29 of the Act. Learned Additional District Judge held thatprima facie the action of the Board was in accordance with law and balance of convenience was also in its favour. He observed that if the injunction was granted, it would hold up the execution of the Project for an indefinite period resulting in irreparable loss to the appellants. He, therefore, allowed the appeal and vacated the temporary injunction granted by the trial Court.

The plaintiff felt aggrieved by the order of the learned Additional District Judge and has preferred the present revision. Before dealing with the contentions of learned counsel for the appellant, it will be convenient to notice the relevant provisions of the Act. Section 28 empowers the Board to prepare one or more schemes relating to, inter alia, transmissions lines. It may be mentioned that clause (b) of Section 18 and clause (c) of sub-section (1) of Section 180-A of the said Act empower the Board to prepare and carry out schemes for transmission and distribution by itself or in co-ordination with the other Boards. Sub-section(3) of Section 28 requires the Scheme to be published in the Official Gazette and in such other local newspapers as the Board may consider necessary. Section 29 of the Act relates to Schemes involving capital expenditure exceeding five crore rupees. Sub-sectioh(2) of Section 29 lays down that among other things the Scheme shall contain the estimates of the capital expenditure involved, salient features thereof and the benefits that may accrue therefrom to be published in the Official Gazette of the State concerned and in such local newspapers as the Board may consider necessary along with a notice of the date, note being less than two months after the date of such publication before which persons interested may make representations on such schemes. The Board is empowered to finalize the Scheme after taking into consideration the representation if any, received in this behalf and after making such enquires as it thinks fit to modify the Scheme. The Scheme is then forwarded to the State Government as well as the Authority. Remaining para of Section 29 is not relevant for the present purpose. Section 42 of the same Act empowers the Board to place any wires poles, wall brackets, stays, apparatus and appliances for the transmission and distribution of electricity. Sub-section (1) further lays down that Board shall have all the powers which the telegraph authority possess under Part III of the Indian Telegraph Act, 1885 with regard to a telegraph established or maintained by the Government or to be so established or maintained Part II of the Indian Telegraph Act, 1885 with regard to a telegraph established or maintained by the Government or to be so established or maintained Part III of the Indian Telegraph Act, 1885 contains Sections 10 to 19-B in Part III. Section 10 empowers the telegraph authority to place and maintain a telegraphic line under, over, along or across and posts in or upon any immovable property. Clause (b) of the proviso to Section 10 makes it clear that thereby the Central Government shall not acquire any right, other than that of user only in the property used to the Telegraph Authority. Clause (c) of the same proviso inter-alia lays down that where by he exercise of the powers u/s 10, any damage is caused, the Government shall pay full compensation to all persons interested. Sub-section (3) of Section 16 of the Indian Telegraph Act lays down that if any dispute arises concerning the sufficiency of the compensation to be paid u/s 10, Clause (d), it shall on application for that purpose by either or the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him.

From what is stated above, it follows that to exercise the powers of the Telegraph Authority under Part-Ill of the Indian Telegraph Act, the legal requirement is publication of Scheme in accordance with the provisions of Sections 28 and 29 of the Act. Once the Scheme is so published, the Board is competent to exercise the powers of Telegraph Authority referred inter-alia in Section 10 of the Indian Telegraph Act. Person interested whose rights in property are adversely affected has a right to receive compensation by making necessary application u/s 42 of the Act, read with Section 16(3) of the Indian Telegraph Act. Person interested whose rights in property are adversely affected has a right to receive compensation by making necessary application u/s 42 of the Act, read with Section 16(3) of the Indian Telegraph Act before the District Judge within whose jurisdiction the property situate. The Scheme of the Act does not expressly or by necessary implication envisage any notice to the affected persons beyond the publication of the Scheme referred to under Sections 28 and 29. Sub-section (2) of Section 29 of the''-Act gives an indication as to the contents of the Scheme which is required to be published and this aspect has already been referred to in the earlier part of this order. According to the respondent Board, the Scheme in question dated 24.5.1982, was published in the Haryana Government Gazette date June 8, 1982. Besides mentioning the names of the Project the Scheme stated in so far as relevant for the present purpose that 66 KV covered under Sixth Five Year Plan, transmission Project was to be erected to utilize the additional generation that will be available from the on going generating Scheme to Haryana itself and of the Central General Schemes in the neighbourhood of Haryana. The arrangement will carry the power to various load Centres. The Scheme proceeded to describe the various transmission lines under the heading 66 KV transmission lines at Sr.No.7. The estimated capital expenditure of the Scheme was Rs.33.26 Crores. In para 4 of the Scheme notice was given that any person interested may raise any objection and or make representation upon the above Scheme within two months of the publication of the notice whereafter on objection or representation will be entertained and the Scheme shall be sanctioned with or without modification as approved by the Board. Paragraph 5 of the Scheme further stated that necessary plans showing the indicative transmission lines, routes etc. as per the Project Report could be seen on any working day in the office of Chief Engineer (P&C), Superintending Engineer (Designs), HSEB Hissar and that objections, if any, should be sent to the Secretary HSEB, Chandigarh. There was that compliance of the provisions of Section 28 and 29 of the Act Besides the Gazette notification, the Scheme was published in several local newspapers such as "The Tej'' ''Dainik Tribune'' dated4.6.1982, Indian Express dated 3.6.1982. ''Punjab Kesri'' dated 8.6.1982 as mentioned in Civil Miscellaneous No.73-CII of 1989 dated 3.1.1988.

Learned Counsel for the respondents also produced for perusal the plan, the original of which was made available in the offices referred to in the Gazette Notification relating to the scheme. The plan depicts the rout to the followed by the transmission lines in question It passes inter-alia through village Shadipur, Learned counsel for the appellants pointed out that the drawing produced for perusal was prepared on 7.9.1982 and, therefore, no plan appears to have been displayed in the offices concerned at the time of publication of the Scheme in the Gazette. Learned counsel for the respondent explained that the original plan was not traceable for the time being and the copy produced in the one which under the law is required to be sent to the Telegraph Authority.

From what has been stated above, there was compliance of the provisions of the Act in regard to publication of the scheme.

It may be mentioned at this stage that for various reasons, technical and otherwise, H.S.E.B. decided to erect tower No.96 in and adjoining the plot of the plaintiff with the result that tower for the transmission line is no longer proposed to be erected in the plot in dispute. The remaining dispute is that the over-head line will pass over Southern part of the plot of the plaintiff-petitioner. In such a situation the point in question is whether the Court, will be justified in granting an injunction to hold up the execution of the entire Project involving several crores of rupees or leave the plaintiff to claim compensation in accordance with the provisions of law. This will be a material consideration while considering the comparative balance of convenience in the facts and circumstances of this case. It may also be pointed out that acquisition of land as such is not envisaged in the Scheme and provisions of the Act. Any person who suffers any damage on account of the exercise of powers by the Board can claim compensation according to the aforesaid provisions.

The main thrust of the arguments of learned counsel for the petitioner was that the Scheme as published in the Gazette or various Newspapers hardly made any of the persons affected wiser because details of the various pieces of land which were involved in the laying of the transmission lines was conspicuous by its absence in the notification as well as the plan produced for inspection of the Court. He vehemently argued that notice in the very nature of things meant that the person whose property was to be adversely affected must be made aware as to what the Scheme meant, when put on the filed. It is only then, it was argued, that the persons affected can possibly make a representation. The learned counsel referred to several authorities under the Land Acquisition Act where necessary particulars of the land sought to be acquired had to be mentioned in the initial notification u/s 4 of the Land Acquisition Act. Where this was not complied with the acquisition was bad. The analogy of Land Acquisition Act, in my opinion, does not apply to the action taken under the Act. The reasons appears to be that what the Board acquires is user of the property as distinguished from acquiring the property itself land a person who suffers damage is entitled to claim and receive compensation.

It may be mentioned that beyond publication of the scheme the Act does not envisage any notice either in general terms or to particular individuals affected by the1 proposed action of the Board. This question directly arose in Bharat Plywood and Timber Products Private Ltd. Vs. Kerala State Electricity Board Trivandrum and Others, . A learned Single Judge took the view that notice should be given in order to satisfy the requirements of natural justice and also because only then the owner will know under what authority action was being taken. The learned Judge of the Full Bench held, "as the provisions stand, we do not think that it is obligatory on the part of the competent authority to issue a prior notice before exercising the power u/s 10 of the Telegraph Act". It may further be made clear that there is challenge to the vires of the Act as such.

Learned counsel next contended that if the injunction was not granted, his suit shall be rendered infructuous. This argument has an appealing simplicity but it cannot stand scrutiny. This may be one of the relevant considerations for the grant or otherwise of an injunction, it cannot possibly mean that in all cases where refusal of the injunction will render the suit infructuous, injunction should be granted for that reason alone. The principles governing the grant of injunction are well known. The sine qua non is aprima facie case, the other factors being balance of convenience and irreparable injury. In the totality of facts, I do not think that the petitioner is entitled to the injunction prayed for. The petitioner has hoprima facie case. Balance of convenience is clearly and heavily in favour of the respondent. What is more the petitioner is not left without a remedy. The main string is out as the Board has already decided to erect the tower in adjoining land. If the petitioner feels that he has a case for claiming compensation for the over-head lines passing from the Southern part or his plot, he may have his remedy according to law.

For the reasons mentioned above, the revision petition is dismissed. In the facts of the case there will be no order as to costs.