IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 496 of 1998. Judgment reserved on: 28.4.2009 Date of decision: 6.5.2009. Lachhmi Devi ……….Appellant Vs. H.P.S.E.B. and another ……Respondents Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Subash Sharma, Advocate. For the Respondents : Mr.Baldev Singh, Advocate. Kuldip Singh, Judge. The appellant was plaintiff in Civil Suit No.94/88 which was dismissed by learned Sub Judge Ist 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 Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 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 under Section 29 of the Indian Electricity (Supply) Act, 1948 was issued on 17.11.1986. The Board under Section 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 3 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:- 1. Whether the defendants are taking 132 K.V. tower line of Gagal to Larji Project over the house of the plaintiff causing loss to the life of the plaintiff and her family members as alleged? OPP 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 4 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 issues No.1 and 2 were answered in negative, issues No.10, 12 in affirmative and issues No.3 to 9 and 11 were not pressed and ultimately the suit was dismissed on 28.12.1991. The appellant filed appeal against decision dated 28.12.1991. In the appeal, the appellant filed an application for amendment of the plaint which was allowed by learned District Judge on 1.6.1994. The parties were directed to appear before the trial Court. The appellant was permitted to file amended plaint and respondents were permitted to file written statement to the amended plaint. The trial Court was directed to frame additional issues, if any, record evidence and decide fresh issues which may arise. After deciding fresh issues the trial Court was directed to resubmit the record to the learned District Judge. On 14.9.1995 the trial Court had framed the following additional issues:- 1-A Whether by passing of the Tower line over the house of the plaintiff, it is likely to expose children to the risk of getting leukemia due to induce electricity and it will also cause interruption in the functioning of T.V.and Radio and other appliances installed in the house, as alleged? OPP 1-B Whether the plaintiff will not able to raise another storey of her house in view of the installation of the tower line by the defendants, as alleged? OPP 5 5. The parties were given opportunity to lead evidence. The learned trial Court on 31.1.1997 decided the additional issues and resubmitted the record to learned District Judge who dismissed the appeal on 12.6.1998. Thereafter the second appeal was filed which has been admitted on the following substantial questions of law:- 1. Whether the findings of the learned trial court on additional issues framed by the learned District Judge on the remand of the case, have been altogether ignored in the judgment of the learned first appellate court? 2. Whether learned courts below have rightly understood the essence of Rules 77 and 82 of the Electricity Rules, 1956 and applied the same in a judicious manner in the instant case? 3. Whether the statement of PW-2 i.e. Dr. Balak Ram Verma has been correctly read and interpreted by the courts below as well as disastrous consequences to follow in case the high-powered transmission lines are not taken on the alternative route? 6. I have heard Mr. Subash Sharma, Advocate, learned counsel for the appellant and Mr, Baldev Singh, Advocate, learned counsel for the respondents and have also gone through the record. On behalf of the appellant, it has been submitted that the learned District Judge has ignored the findings recorded by learned trial Court on additional issues. The essence of Rules 77, and 82 of the Electricity Rules, 1956 has not been applied properly. The statement of PW-2 Dr. Balak Ram Verma has been misconstrued. 6 He has submitted that the transmission line in question shall adversely affect the appellant, her family members and property. The learned counsel for the respondents has supported the impugned judgment, decree. He has submitted that the two Courts below have returned findings on issue No.12 in favour of the respondents. In presence of those findings there is no force in the appeal. He has submitted that no violation of any statute for laying the transmission line in question has been alleged nor proved, the suit is vague. 7. The additional issues framed by the learned trial Court pursuant to the directions dated 1.6.1994 of learned District Judge have already been noticed above. The learned trial Court answered issue No.1-A partly in affirmative and issue No.1-B wholly in affirmative. It was held that the people living in the house of the appellant especially children are at a risk of developing cancer due to induced electricity from the high tension transmission line but the line will not have any effect on the T.V. and Radio sets etc. The learned District Judge has noticed the additional issues in the impugned judgment and in paragraph 23 of the said judgment has recorded a finding that there is no substantive material on record to suggest the risk of cancer to the inhabitants of the houses over which the high tension wires are laid. It was observed that Board is within its right to lay and provide high tension wires for the transmission of the electric energy after providing clearance from the ground as per rule 77 of the Indian Electricity Rules, 1956. The learned District Judge has held that Board has right to lay 7 transmission line as per Act and Rules, therefore, the learned District Judge did not approve the findings of learned trial Court on additional issues 1-A and 1-B. The substantial question of law No.1 is decided against the appellant. 8. The rule 77 of the Indian Electricity Rules, 1956 provides clearance above ground and rule 82 provides erection or alteration to building etc. It is not the case of appellant that transmission line violates rules 77. The rule 82 otherwise is not applicable in as much as it applies to buildings which are erected subsequent to the erection of an over head line. The substantial question No.2 is, thus decided against the appellant. 9. PW-2 Balak Ram Verma has stated that over the years studies have been carried out, Universities all over the world have tried to determine the role of Alternate Magnetic Fields for causing cancer. In his statement he has no where indicated that he is a cancer expert. He has stated that he had not gone into the various causes of cancer and therefore, he cannot say with certainty as to what is the exact incidence of Alternate Magnetic Fields induced cancer in Himachal Pradesh. The statement of PW-2 Balak Ram Verma is of no help to the appellant. The learned District Judge has considered statement of PW-2 and has found him not to be a cancer expert. The substantial question of law No.3 is answered against the appellant. 10. It has come on record that Chief Engineer ( P&M) HPSEB vide Ex.DA notified the scheme on 17.11.1986 for laying the transmission line in question. This notification was published in the 8 news paper. Objections were invited from the general public for which it was stated in Ex.DA that necessary plans showing the line route etc. may be inspected on any working day in the office of the Executive Engineer, S & I division, HPSEB, Bilaspur. No objections were filed by the appellant. In Ex.DA it was further provided that for the purpose of the scheme, the Board in accordance with provision of Section 42 of Electricity (Supply) Act, 1948 have and shall exercise all the powers which the Telegraph authority possesses under part-III of the Indian Telegraph Act 1885. In part-III of the Indian Telegraph Act, 1885 under Section 10, the telegraph authority has power to maintain a telegraph line under, over, along or across, and posts in or upon, any immoveable property and under Section 11, the telegraph authority has power for the purpose of examining, repairing, altering or removing any telegraph line or post, enter on the property under, over, along, across, in or upon which the line or post has been placed. Thus the Board in view of part-III of the Indian Telegraph Act, 1885 had all powers to lay the transmission line in question. The Board has exercised the statutory powers and no injunction can be granted to stop the exercise of statutory powers. The suit filed by the appellant for permanent prohibitory injunction restraining the respondents not to lay tower line over khasra No.64 is not maintainable. There is no perversity in the impugned judgment. The learned District Judge has rightly appreciated the material on record. The appellant has failed to make out a case for interference. 11. No other point was urged. 9 12. The result of the above discussion, the appeal fails and is accordingly dismissed. No costs. ( Kuldip Singh) Judge May 6, 2009 (sks)