- (1.) N. L. Ganguly, J. This Second Appeal by the U. P. State Electricity Board is directed against the concurrent judgment of the courts below decreeing the plaintiff's suit for mandatory injunction against the appellant.
(2.) PLAINTIFF-respondent owns field No. 3300 and 3308 Mauja Lishar, is the bhumidhar of the said plots wherein numerous trees were standing. Respondent Nain Singh was the defendant in the original suit was tenant of plot No. 2381. He wanted to have electricity connection for the tub-well in his plot. Nain Singh applied for electricity connection from the U. P. State Electricity Board. The defendant wanted to take their electricity lines across the fields of the plaintiff, as well as fix electricity polls thereon. The plaintiff pleaded that the defendants have no right to take electricity wire across his fields. A temporary injunction was granted by the trial court restraining the appellant and Nain Singh, respondent laying any electricity line over the plaintiff's field. Nain Singh, defendant-respondent filed a Misc. Appeal before the appellate court and the operation of the interim injunction was suspended. In the meantime, the Electricity Board passed the electricity lines across the plaintiff' fields. The plaintiff thereafter got the plaint amended and instead perpetual injunction claimed the mandatory injunction for removal of the said electricity wire over his fields. The plaint allegations were contested and denied by both the defendants. The courts below examined the submission of the Electricity Board counsel who placed reliance on Sections 12 and 51 of the Indian Electricity Act, 1910. The relevant provisions of Section 12 of Indian Electricity Act, 1910 are quoted as under: "12. Provisions as to the opening and breaking up of streets, railways and tramways.- (1) Any licensee, may, from time to time but subject always to the terms and conditions of his lincence, within the area of supply, or when permitted by the terms of his licence to lay down or place electric supply-lines without the area of supply, without that area- (a) open and break up the soil and pavement of any street, railway or tramway ; (b) open and break up any sewer, drain or tunnel in or under any street, railway or tramway ; (c) lay down and place electric supply-lines and other works; (d) repair, alter or remove the same ; and (e) to all other acts necessary for the due supply of energy. (2) Nothing contained in sub-section (1) shall be deemed to authories or empower a licensee, without the consent of the local authority or of the (owner or occupier) concerned, as the case may be, to lay down or place any electric supply-line or other work in, through or against any building, or on, over or under any land not dedicated to whereunder any electric supply-line of work has not already been lawfully laid down or placed any such licence: Provided that any support of an (overhead line) or any stay or strut required for the sole purpose of securing in position any support of an (overhead line) may be fixed on any building or land or, having been so fixed, may be altered, notwithstanding the objection of the owner or occupier of such building or land, if the District Magistrate or, in a presidency-town, the Commis sioner of Police, by order in writing so directs. " Provision of Section 51 of the Act is also quoted as under: "51. Exercise in certain cases of powers of telegraph-authority.- Notwithstanding anything in Sections 12 and 16 and Section 18 and 19 the (State Government) may, by order in writing, for the placing of (electric supply-lines, appliances and apparatus for the transmission of energy of for the purpose of telephonic or telegraphic communications necessary for the proper co-ordina tion of works, confer upon any public officer, lincensee or any other person engaged in the business of supplying energy to the public under this Act), subject to such conditions and restrictions (if any) as the (State Government) may think fit to impose and to the provisions of the Indian Telegraph Act, 1885, any of the powers which the telegraph-authority possesses under that Act, with respect to the placing of telegraph-lines and posts for the purposes of the telegraph established or main tained by the Government or to be so established or maintained. " The defendant-appellant also submitted that the plaintiff was not entitled to injunction in view of provision of Sections 38, 39 and 41 of Specific Relief Act. Three points were argued before the appellate court and also before this Court, which are as under: (i) Whether the U. P. State Electricity Board is empowered to draw the electric wire across the plaintiff's field in order to supply the electricity to Nain Singh's well by virtue of sub-section (2) of Section 12 of Indian Electricity Act; (ii) Whether the U. P. State Electricity Board was empowered/authorised under Section 51 of the Indian Electricity Act to draw the electric supply line in question ; (iii) Whether the plaintiff was not entitled to specified relief of mandatory injunction granted by the courts below in view of Section 38, 39 and 41 of Specific Relief Act ?
(3.) SRI H. P. Gupta, learned counsel for State Electricity Board sub mitted that the Electricity Board was competent to draw the supply line in question without the consent of the plaintiff-respondent. Admittedly, the plaintiff respondent never gave his consent in laying the electricity line over his fields, SRI H. P. Gupta placed reliance on AIR 1972 Ker 47-Bharat Plywood and Timber Products Pvt. Ltd. v. Kerala State Electricity Board, Trivandrum. He placed Section 10 of the Telegraph Act and it was said to read Section 10 of the Telegragh Act alongwith Section 12 of the Electricity Act. He submitted that these two sections are enabling the provisions in a licensee under the Act to lay down or place electric supply- lines and other works. No doubt, this, however been made subject to the provisions in sub-section (2) of that section which says that sub-section (1) of Section 12 shall not be deemed to have authorised or empowered a licensee to place any supply-lines without the consent of ths owner or occupier of the property concerned. SRI Gupta relied para 12 of the Full Bench Judgment of Kerala High Court (supra) and submitted that the State Electricity Boards constituted under the Electricity Supply Act, 1948 have the power to draw up and sanction a scheme with, a view to rationalising the production and supply of electricity in any area. When such a scheme makes provision for the placing of supply-lines, the Boards shall have for that purpose the same power that a telegraph authority has under the Telegraph Act to place telegraph-lines. Sri Gupta submitted that the power that can be conferred under Section 51 of the Electricity Act upon a public officer, licensee or any other person is only for the purpose of placing electric supply-lines. It can hardly be expected that this power will be utilised arbitrarily for causing lose or damage to owners or course, be difference of opinion is to whether a line should be placed over a particular property or not. This must, in the nature of things, be a matter for the statutory authorities created under the Electricity Act to decide. It is too much to suppose that the officers, licensees and other persons empowered under Section 51 will act without any guidance or control from the statutory authorities such as the State Electricity Boards created under the Supply Act and without sanction or approval from the senior officers of the Board who have to decide on the policies regarding distribution and supply and the alignment of the lines to be drawn and such allied matters. The purpose for which the electric supply lines may be placed are clear from the section itself.;