- (1.) 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.
(2.) 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, in spite of request made by him, affixed high tension wire thereto. Wheeler gave notice to them under Section 80, C. P. C. 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 rue 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, 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.
(3.) 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 under Section 51, 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, as well as in the notice preceding if, it was not a case where he had resisted or obstructed exercise of powers by the Board under Section 10, 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 Rai v. U. P. State Electricity Board (AIR 1977 All 452 ). In that case, the view taken was that the effect of a notification by the State Government under Section 51, 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 discretionary in character. Even the learned Civil Judge was cognizant of this aspect for, in the penuttimate 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. ";