Back
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Kuldip Singh, J
Lachmi Devi - Appellant
Versus
H.P.S.E.B. And Another - Respondents
Decided On : 06-05-2009
Indian Electricity (Supply) Act, 1948 – Section 29 –Electricity Act, 1910 – Section 22 –Indian Telegraph Act, 1885 – Section 10, 11 – Electricity Rules, 1956 – Rules 77, 82 – Second appeal – Civil suit – Appellant was plaintiff in Civil Suit which was dismissed by learned Sub-Judge 1st Class, she filed Civil Appeal, which was dismissed by learned District Judge, now she has filed second appeal – Pleaded case of appellant is that she is owner in possession of land comprised measuring – Respondents without any right had started laying power line over in which house, orchard of appellant are situated – Held, In part-III of Indian Telegraph Act, 1885 u/s 10, telegraph authority has power to maintain a telegraph line under, over, along or across, and posts in or upon, any immovable property and u/s 11, telegraph authority has power for purpose of examining, repairing, altering or removing any telegraph line or post, enter on property under, over, along, across, in or upon which line or post has been placed – Thus Board in view of part-Ill of Indian Telegraph Act, 1885 had all powers to lay the transmission line in question – Board has exercised the statutory powers and no injunction can be granted to stop the exercise of statuary powers – Suit filed by the appellant for permanent prohibitory injunction restraining the respondents not to lay tower line over khasra is not maintainable – There is no perversity in impugned judgment – Learned District Judge has rightly appreciated material on record – Appellant has failed to make out a case for interference – Appeal dismissed.
ORDER :
Kuldip Singh, J.
The appellant was plaintiff in Civil Suit No. 94/88 which was dismissed by learned Sub-Judge 1st Class, Sundernagar on 28-12-1991, she filed Civil Appeal No. 88 of 1992, which was dismissed by learned District Judge, Mandi on 12-6-1998, now she has filed the second appeal.
2. The pleaded case of the appellant is that she is owner in possession of land comprised in Khasra No. 64, measuring 1-0-8 bigha, Muhal Kangu, Illaqua Dehar. Tehsil Sundernagar, Distt. Mandi. The respondents without any right had started laying 132 K.V. power line over Khasra No. 64 in which house, orchard of the appellant are situated. The said 132 K.V. line would pass over the house of the appellant and would be a constant threat to the appellant and her family members. The respondents were asked not to carry out any work of the power line over the land of appellant but they refused to oblige the appellant. On those facts, the appellant filed the suit.
3. The respondents contested the suit and took preliminary objections i.e. statutory notice was given inviting objections against the construction of 132 K.V. transmission line from Larji to Gagal, the appellant did not raise any objection, hence, now appellant cannot agitate for laying of 132 K.V. transmission line. She is estopped from questioning the laying of power line. The 132 K.V. transmission line was sanctioned by the Govt. of India at a costs of Rs. 16068/-lacs. A notification u/s 29 of the Indian Electricity (Supply) Act, 1948 was issued on 17-11-1986. The Board u/s 22 of the Electricity Act, 1910 has all the powers which the Telegraph Authority possesses under Part III, of the Indian Telegraph Act, 1885. The respondent No. 1 being a public utility organization is under legal obligation to install electricity appliances, apparatus and towers for the transmission of electricity. The respondents have proceeded under the statute for laying 132 K.V. transmission line in public interest. In addition to above objections of locus standi, non-Joinder of necessary parties, jurisdiction of the Court and maintainability of the suit were raised. On merits, the respondents denied the case of the appellant. They denied that transmission line would damage the house or other property of the appellant. It was pleaded that' minimum prescribed horizontal and vertical distances were left from the property of the appellant. The line would be equipped with safety devices prescribed under law. The fear and apprehension of loss of life of appellant and her family members are misplaced.
4. The learned trial Court had framed the following issues:
2. Whether the plaintiff is entitled to relief of permanent prohibitory injunction as prayed for? OPP
3. Whether the suit has not been properly constituted and instituted as alleged? OPD
4. Whether the suit is bad for want of statutory notice u/s 29 of the Electricity (Supply) Act 1948, as alleged? OPD
5. Whether the suit is not maintainable in the present form? OPD
6. Whether the plaintiff has no locus standi to file the suit? OPD
7. Whether the suit is bad for non-joinder of parties? OPD
8. Whether this Court has no jurisdiction to try the suit? OPD
9. Whether the plaintiff has enforceable cause of action as alleged? OPD
10. Whether the plaintiff is estopped from filing the suit at this belated stage by her act and conduct, omissions, commissions and acquiescence? OPD
11. Whether the plaintiff has not approached the court with clean hands? OPD
12. Whether the defendants are empowered and entitled for taking tower line 132 K.V. from Gagal to Larji Project and over the house of the plaintiff as alleged? OPD
13. Relief.
The issue Nos. 1 and 2 were answered in negative, issue Nos. 10, 12 in affirmative and issues No. 3 to 9 and 11 were not pressed and ultimately the suit was dismisse
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
