The Chief Engineer vs Malkan Singh on 19 February, 2009

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Punjab-Haryana High Court

The Chief Engineer vs Malkan Singh on 19 February, 2009

This is defendants' revision petition challenging the judgment/order dated 16.10.2008 passed by District Judge, Bhiwani, whereby the appeal filed by the petitioners against the order dated 23.01.2008 of the trial Court allowing application under Order 39 Rule 1 and 2 read with Section 151 CPC and restraining the appellant from erecting any tower in the suit land causing interference into the peaceful possession of the plaintiff and destroying the standing crop in the suit land in any manner whatsoever, has been dismissed.

Plaintiff-respondent filed a suit restraining the defendants/petitioners permanently from erecting any tower in the suit land causing interference into the peaceful possession of the plaintiff and destroying standing crop in the suit land in any manner whatsoever alleging that plaintiff is co-sharer of agricultural land and is in possession of the same and has sown wheat crop therein. The defendants/petitioners were allotted the work for construction of 132 KV S/C line from the end of existing 132 KV S/C Dadri Bhiwani line to the site of 132 KV S/Station Civil Revision No.585 of 2009 2 Haluwas, as per the design/drawing approved by defendant Nos.1 to 3 one of the towers is to be erected by the defendants on the land of the plaintiff. The work for construction of the aforesaid transmission line is in progress and is being carried out by defendant No.4. On 21.12.2007, defendant No.4 demarcated the land comprising in khasra No.31//2(8-0) for erection of tower for said purpose without notice to the plaintiff. Unless and until land of plaintiff required for erection of tower is acquired by defendants, they have no legal right to take possession of said land and to carry out any kind of work on the land. Defendants without acquisition and without making payment of compensation are adamant to destroy the crops of wheat shown by plaintiff and further to excavate earth and to dig the pit for erection of tower, for which they have no legal right. Plaintiff and other effected persons approached the defendants No.1 to 3 not to do so, but all in vain and hence the present suit.

Along with the suit plaintiff filed an application for grant of ad interim injunction under Order 39 Rule 1 and 2 read with Section 151 CPC with the prayer that till the decision of the suit, defendants be restrained from erecting tower causing interference into peaceful possession of plaintiff and destroying his crops standing in the suit land without acquiring the same and paying compensation, thereof. Upon notice, petitioners appeared and filed written statement raising certain preliminary objections. It was submitted that transmission line is being constructed for proper and adequate supply of electricity to the residents of the area as per their demand and grievance. A notification for construction of the transmission line was published in the Government Gazette. Public notices were also published in this regard in leading daily newspapers and objections were invited by the Nigam from the persons who are not interested in the construction of Sub-Station. However, neither plaintiff nor anybody else filed any objection. Sub-Station is being constructed under the duly Civil Revision No.585 of 2009 3 approved and sanctioned scheme of Haryana Government in the larger interest of the public.

It was further submitted that as per provisions of Section 10 of the Indian Telegraph Act, 1885, read with Section 164 of Electricity Act, 2003 and the provisions of Electricity (Supply) Act, 1948, the Nigam is empowered to place any wire, poles, walls, brackets, stays, apparatus and appliances for the transmission and distribution of electricity, necessary for the work of Nigam without any notice of any party. It was also submitted that in case plaintiff succeeds in his ill design, then public at large would suffer great hardship and inconvenience and it will also cause loss to State/Nigam's exchequer. On merits, what was stated in preliminary objection No. 7 has been reiterated. Refuting all other allegations, prayer for dismissal of the suit was made. It was also prayed that application for ad interim injunction be also dismissed. The trial Court after hearing the learned counsel for the parties allowed the application filed by the plaintiff and defendants were restrained from erecting any tower in the suit land restrained from erecting any tower in the suit land by lying foundation; undertaking excavation of earth; causing interference into the peaceful possession of the plaintiff and destroying crop standing in the suit land in any manner whatsoever.

Feeling aggrieved therefrom, defendant Nos.1 to 3 filed an appeal which was dismissed by District Judge, Bhiwani, vide impugned judgment/order dated 16.10.2008.

Still not satisfied, the defendants have filed the present petition challenging the aforesaid judgment/order dated 16.10.2008 passed by Lower Appellate Court.

Learned counsel for the petitioners has vehemently argued that the Lower Appellate Court has fallen into grave error by ignoring that under Section 39(1) of the Electricity Act, 2003, the petitioner HVPNL was Civil Revision No.585 of 2009 4 notified as Haryana State Transmission Utility for the purpose of the Act and therefore was competent to carry out the erection of transmission line which is being erected as per the scheme duly approved by the State of Haryana. Elaborating further his arguments learned counsel for the petitioners has strenuously argued that public notice of carrying out this work was given in the leading newspapers and no objections were received and thus now respondent cannot object to the erection of the towers in his land which is being erected as per the approved scheme. Learned counsel has further argued that in view of the provisions of Section 164 of the Electricity Act, 2003 and Section 10 of the Indian Telegraph Act, 1885, the petitioners are competent to enter into the property of the petitioners for erecting such transmission line. The petitioner has also argued that no prejudice is going to be caused to the respondent as they can be compensated by payment of damages if any caused to his crop and thus has prayed that the impugned order be set aside and application filed by the respondent for grant of ad interim injunction be dismissed.

I have heard learned counsel for the petitioners.

Admittedly, the land in question on which tower for transmission line is sought to be erected belongs to the plaintiff-respondent. No doubt that the scheme has been approved by the Government for laying of such transmission line and the petitioners are carrying out the work of erection of the same. However, simply because the petitioners have the power to enter into the land of the respondent on the basis of provision of Electricity Act, 2003 and the Telegraph Act, 1885, does not mean that the work can be carried out in the land of the respondent in any manner which may be detrimental to the owner of such land. Admittedly, the tower will be erected by consuming land of the plaintiff-respondent to the extent of 25 square meters. The standing crop of the plaintiff-respondent is liable to be damaged while doing the erection work as heavy machinery has to be Civil Revision No.585 of 2009 5 placed at the site for erection of the electric tower. Moreover, many people are supposed to work at site. Admittedly, no notice has been given to the plaintiff-respondent before starting the process. Neither the land of the plaintiff-respondent has been acquired. Even no survey has been conducted to assess the likely damage to the crops of the plaintiff- respondent and in these circumstances, the plaintiff-respondent is likely to suffer irreparable loss and injury to him.

As per Section 164 of Electricity Act, appropriate government can confer upon any public officer, licencsee or any other person engaged in business of supply of electricity under this act to use powers under Telegraph Act. Thus, Section 164 of Electricity Act has laid down some conditions. As per this section, empowerment by appropriate government is must. Defendants have not produced any notification or any type of letter vide which, Haryana government conferred powers upon it or any other person specifically or in general to use powers as provided under Section 10 of Telegraph Act. From the bare perusal of Section 10 of Telegraph Act and Reforms Act, it is clear that commission can enter upon any land without notice and acquisition of any land to regulate proper supply which is not the case in hand.

Thus, Courts below have rightly come to conclusion that when there is no empowerment under Section 164 of Electricity Act, defendants cannot erect any tower.

Further more, this High Court clearly opined in Kamla Kumar Thapar vs. Vinod Kumar Thapar Vol. CXIII- (1996-2) The Punjab Law Reporter 64, Maman Chand vs. Smt. Kamla Vol CXIII- (1996-2) The Punjab Law Reporter 147 and Guru Nanak Education Trust versus Balbir Singh (1995-2)100 PLR 625 that Appellate Court cannot interfere in an order passed by the trial Court qua interim injunction unless the said order is altogether against law, perverse and may result into Civil Revision No.585 of 2009 6 miscarriage of justice. The Appellate Court should be very slow before interfering in such like order.

For the reasons recorded above, no interference is called for in the impugned order.

Dismissed.

(RAKESH KUMAR GARG) JUDGE 19.02.2009 neenu

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Punjab-Haryana High Court