Madhya Pradesh High Court
Chairman & Anr. vs Sheetal Puri Griha Nirman Udyog on 27 October, 2014
1
S.A.No.1329/2005
Second Appeal No.1329/2005
27.10.2014
Shri M.L.Jaiswal, learned senior counsel with Shri
A.S.Hussain learned counsel for appellants.
Heard on admission.
Placing of electricity poles and laying electricity lines
through land bearing Khasra No.180, 179, 162,164, 175, 181/4,
182, 178, 177, 193, 184, 186, 187, 188, 191, 192, 181/5 and 190
admeasuring 34 acres, Mauja Jabalpur, Halka No.24/1, Bandobast
No.64 by the appellant-Electricity Board, led the respondent-
Society to file a suit for declaration and permanent injunction on the ground that without laying down scheme as is required under the provisions of the Electricity (Supply) Act, 1948 (hereinafter referred to as 'the 1948 Act') and a sanction granted by the State Government, it is beyond the powers of the Board to lay down electricity poles and lines over the land belonging to the Society vide Civil Suit No.169-A/1996 before the Court of 15 th Civil Judge, Class-II, Jabalpur.
The claim found favour and the suit was decreed on 21.02.2001 whereagainst the appellant preferred an appeal before 5th Additional District Judge, Jabalpur vide Civil Appeal No.12A/2004, however, being unsuccessfull the appellant has filed the present Second Appeal on the ground that both the Courts 2 S.A.No.1329/2005 below misconstrued the powers vested in the Board under Section 12(2) of the Indian Electricity Act, 1910 (hereinafter referred to as 'the 1910 Act') and Section 42 of the Electricity (Supply) Act, 1948.
Heard learned counsel for the appellants at length and perused the record.
It is borne out from the record and as recorded in paragraph 20 of the judgment passed by the Appellate Court that no scheme was ever prepared by the Appellant-Board and no sanction sought for from the State Government for placing electricity poles and lines over the land belonging to the respondent.
Section 42 of the 1948 Act confers powers on the Board for placing wires, poles etc. Sub-Section (1) of Section 42 stipulates that notwithstanding anything contained in sections 12 to 16 and 18 and 19 of the Indian Electricity Act, 1910 but without prejudice to the requirements of section 17 of that Act where provision in such behalf is made in a sanctioned scheme, the Board shall have, for the placing of any wires, poles, wall-brackets, stays apparatus and appliances for the transmission and distribution of electricity, or for the transmission of telegraphic or telephonic communications necessary for the proper co-ordination of the works of the Board, all the powers which the telegraph authority possesses under Part III of the Indian Telegraph Act, 1885 with 3 S.A.No.1329/2005 regard to a telegraph established or maintained by the Government or to be so established or maintained. It further stipulates that where a sanctioned scheme does not make such provision as aforesaid, all the provisions of sections 12 to 19 of the first-mentioned Act shall apply to the works of the Board. Thus imperative it is that there should exist a scheme which be sanctioned by the State Government before placing of any wires, poles, wall-brackets, stays apparatus and appliances for the transmission and distribution of electricity.
In the case at hand, as record reveals the appellant has failed to bring on record any sanctioned scheme as would have authorized them to lay the wires and poles in the suit property. Though it is contended on behalf of appellants that sub-section (2) of Section 12 of the 1910 Act empowers the Board to lay such wires and poles in the suit land, however, a close reading of sub- section (2) of Section 12 of the 1910 Act reveals that for doing so prior permission of the owner or occupier is warranted.
Sub-section 2 of Section 12 of the 1910 Act stipulates :
"(2) Nothing contained in sub-section (1) shall be deemed to authorise 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 4 S.A.No.1329/2005 not dedicated to public use whereon, whereever or whereunder any electric supply-line or work has not already been lawfully laid down or placed by such licensee:
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 owner or occupier of such building or land, if the District Magistrate or, in a Presidency-town, the Commissioner of Police by order in writing so directs:
Provided also, that if at any time the owner or occupier of any building or land on which any such support, stay or strut has been fixed shows sufficient cause, the District Magistrate or, in a Presidency-town, the Commissioner of Police may by order in writing direct any such support, stay or strut to be removed or altered."
In the case at hand, the appellants having failed to establish that a prior sanction was sought for from the owner or occupier of the suit property, the conclusion arrived at by both the Courts below that laying of electricity lines and erection of electricity poles in the suit land was without any authority cannot be faulted with.
Though the appellants have placed reliance on a decision in Gangadeen vs. State of M.P. : (2002) 4 MPLJ 460, however, fact of the said case reveals that there was a scheme which was being implemented by the Board, whereas in the present case the Board 5 S.A.No.1329/2005 has failed to establish the existence of sanctioned scheme as is required under Section 42 of the 1948 Act or a sanction of the owner or occupier as is required under sub-section (2) of Section 12 of the 1910 Act, the decision relied on is therefore of no assistance.
In view whereof, since no substantial question of law arises for consideration, Appeal is dismissed in limine. However, there shall be no costs.
(SANJAY YADAV) JUDGE anand