Implied consent and estoppel can be established in cases of installation of permanent structures on land, and the owner's right to seek removal of such structures is upheld.

VALMIKI J. MEHTA, J.

1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the appellant/defendant no.1/Delhi Vidyut Board (now known as BSES Rajdhani Power Ltd.) impugning the concurrent Judgments of the courts below; of the Trial Court dated 3.2.2011 and the First Appellate Court dated 16.4.2013; by which the suit for mandatory injunction and permanent injunction as also for damages of Rs.2.50 lacs was decreed to the extent that the appellant/defendant no.1 was directed to remove the electricity transformer installed on the subject land of the respondent/plaintiff comprised in Khasra no.13/3, area of 100 sq yds in village Khaira, Najafgarh, Delhi. The appellant/defendant no.1 was also directed to remove the overhead cables passing through the land of the respondent/plaintiff as depicted in the site plan Ex.PW1/1.

2. The issue in the present case is as to whether the appellant/defendant no.1 had illegally installed a transformer/sub-station on the land belonging to the respondent/plaintiff in November, 2001 i.e without any permission or consent of the respondent/plaintiff, inasmuch as the case of the respondent/plaintiff was that no consent/permission was taken by the appellant/defendant no.1 to install the transformer/sub-station or the overhead cables.

3. The appellant/defendant no.1 contested the suit by pleading that a transformer was installed on the land of the respondent/plaintiff around 20-25 years prior to filing of the suit. This was a sub-station having capacity of 100 KVA. In November, 2001 because of increase in demand of load, this sub-station was augmented by increasing the load from 100 KVA to 400 KVA. It was therefore denied that the transformer/sub-station was installed in November, 2001 or that it was installed without any permission/consent of the respondent/plaintiff. It was further pleaded that augmentation of load and changing of equipment already installed way back did not require any fresh permission/consent of the respondent/plaintiff. Suit was hence prayed to be dismissed.

4. After pleadings were complete, the trial court on 14.1.2003 framed the following issues:-

“1. Whether plaintiff is entitled to mandatory injunction as prayed? OPP

2. Whether plaintiff is entitled for recovery of damages of Rs.2,50,000/-? OPP

3. Relief.”

5. The relevant issue was issue no.1 and the trial court held this issue in favour of the respondent/plaintiff by observing that no permission has been proved to have been granted to the appellant/defendant no.1 by the respondent/plaintiff to install the transformer/sub-station and the overhead electricity lines, and therefore, the respondent/plaintiff as the owner of the land always was entitled to seek removal of the transformer/sub-station and the overhead lines because the legal owner of the land has complete right to use his land in the way he wishes. The relevant paras of the trial court judgment deciding issue no.1 in favour of the respondent/plaintiff and against the appellant/defendant no.1 read as under:-

“Issue no.1.

The onus to prove issue no.1 was upon the plaintiff. PW 1 i.e. plaintiff deposed that the agricultural land measuring 16 bigha 15 biswa, is owned by him, which is situated in village Khaira, tehsil Najafgarh, and over Khasra number 13/3, the defendants have installed a transformer, some time in November 2001, without any expressed permission from him and have also installed overhead electricity cables over the rest of the land owned by him, illegally and forcibly. PW 1 further deposed that besides the land owned by him, the whole of the agricultural land of this revenue state has been converted to non agricultural use and is presently being used for colonies etc. The transformer as well as cables were installed by the defendants for providing agricultural connection only and defendants are supplying electricity for residential connection, through two different transformers. PW 1 proved the site plan as Ex.