U.P. State Electricity Board vs R. Wheeler and Another

V.K. Mehrotra, J.—This appeal by the U.P. State Electricity Board is against the judgment and decree of the Civil Judge, Nainital directing it by mandatory injunction to remove some electric poles and high tension wires fixed by it upon agricultural land belonging to the Plaintiff-Respondent. The trial court had dismissed the suit.

R. Wheeler, the Plaintiff, went to Court with this case. He was in possession of some plots situate in village Byura Bandobasti Tahsil Haldwani District Nainital. The Board through its local officers, without giving him notice, set up electric poles and, inspite of request made by him, affixed high tension wires thereto. Wheeler gave notice to them u/s 80 CPC wherein he asserted that the entire action was without his consent and without any notice to him. The Board was required to remove the poles and the transmission line, when it failed to do so, the suit, out of which arises the present second appeal, was filed for the relief of mandatory injunction directing it to remove the structures set up.

The case of the Appellant was that it had statutory power to fix poles and transmission lines over the property of R. Wheeler which was in the nature of agricultural plots. Wheeler was not entitled to the relief of injunction sought for.

The lower appellate court discussed the legal position at some length and relied upon some decisions of the High Courts of Kerala and Madras and concluded that since Wheeler had objected to the fixation of poles and electric wires over his property, it was necessary for the Board to have sought the permission of the District Magistrate, as provided in Section 16 of the Indian Telegraphs Act. Since it had not referred the matter to the District Magistrate in terms of that provision, it had rendered itself liable to be commanded to do so. Consequently, the decree impugned in this appeal was passed.

Sri H. P. Gupta, for the Appellant, has urged that the view that the Board had no power, in law, to affix poles and construct the transmission line over the property of Wheeler without his permission, was erroneous. He has urged that the Board, by virtue of the notification issued u/s 51 of the Indian Electricity Act, 1910 by the State Government, was fully competent to have affixed poles and high tension wires over the property of Wheeler without his consent. He has also urged that on the allegations made by Wheeler himself in the plaint, aswell as in the notice preceding it, it was not a case where he had resisted or obstructed exercise of powers by the Board u/s 10 of the Indian Telegraphs Act. As such also, the Board was not under any legal obligation to have referred the matter to the District Magistrate. He placed reliance upon a Division Bench judgment of this Court in Deva Raj Vs. U.P. State Electricity Board, Lucknow and Others, . In that case, the view taken was that the effect of a notification by the Slate Government u/s 51 of the Indian Electricity Act, 1910 clearly was to clothe the Board with the power of setting up poles and electric lines over the property of a person even without his consent and that the aggrieved person had the right to seek compensation.

The relief sought in the suit was of mandatory injunction for removal of the poles and wires set up by the Board on the property of Wheeler. In its very nature, the relief was discretionery in character. Even the learned Civil Judge was cognizant of this aspect for, in the penultimate paragraph of his judgment, he has observed that injunction undoubtedly was a discretionary relief but proceeded to add that "in this case, if the relief is not granted, it would amount to give licence to the U.P. State Electricity Board and its employees to violate the express provisions of law at their sweet will... and that it was therefore, proper to grant the relief of mandatory injunction."

In paragraph 6 of the plaint, it was, inter alia, asserted that the action of the Hydel Department was illegal and unauthorised and had rendered the land under the electric wires unsuitable for construction purposes. The stand taken by the Board in reply to this assertion was that the high tension lines or the poles erected by it permitted use of land and had caused no harm to it. It is clear that parties were at issue about the consequence of fixation of poles and the wires over the land of Wheeler. In his statement, Wheeler attempted to give out the harm caused to him on account of fixation of poles and wire over his property. It was challenged in the cross-examination. In his deposition on behalf of the Defendants, an employee of the U.P. State Electricity Board also said something about the effect of the fixation of poles and wires over the land of the Wheeler.

The question as to whether the fixation of poles and wires over his property were likely to cause such injury to R. Wheeler which could not be adequately compensated in terms of money or that the circumstances were such where the removal of the poles and the wires fitted by the Board was necessary to be directed in order to do justice between the parties had not been considered by the learned Civil Judge at all. These were relevant circumstances which had to be looked into by him before deciding upon the grant of injunction prayed for by the Plaintiff.

Even on the assumption that the view taken by the Civil Judge about the legality of the action of the Board was correct, which is seriously disputed by the counsel for the Board, it is clear that the grant or otherwise of the discretionary relief of mandatory injunction prayed for by R. Wheeler had to be judged, not on the footing that Wheeler was entitled to it for the action of the Board was not lawful but, on considerations germane to the grant of the discretionery relief of injunction- The learned Judge has not adverted to this aspect of the matter. On this short ground, his decree, directing removal of the poles and electric wires fitted over the property of the Wheeler through a decree of mandatory injunction, deserves to be vacated. Principles for grant of the discretionary relief of injunction are well settled. Circumstances of each case have to be judged in the light thereof. Since the learned Civil Judge has not done so, it appears desirable in the interest of justice to require him to do so now.

The appeal succeeds and is allowed. The judgment and decree of the lower appellate court are set aside and the case is remanded to the Civil Judge for re-consideration in accordance with law.

Parties are directed to bear their own costs.