IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. CMPMO No.481 of 2009 Date of Decision : 23.12.2009 Sub Divisional Officer & Anr. …Petitioners. Versus: Dhian Singh & Anr. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, J. Whether approved for reporting?1 Yes For the petitioners: Mr. Anand Sharma, Advocate. For respondent No.1: Mr. Dalip K. Sharma, Advocate. For respondent No.2: Mr. Bimal Gupta, Advocate. Sanjay Karol, J. (Oral) In this petition filed under Article 227 of the Constitution of India, the defendants have assailed the impugned order dated 7.5.2009 passed by the Addl. District Judge, Solan Camp at Nalagarh, in Civil Appeal No. 1-NL/14 of 2008, affirming the order dated 26.10.2007 passed by the Civil Judge (Sr. Division), Nalagarh, Distt. Solan, H.P. in CMA No. 106/6 of 2007 in Civil Suit No. 88/1 of 2007. The respondents are the plaintiffs and the petitioners are the defendants and are referred to as such hereinafter. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Plaintiff Shri Dhian Singh is the co-owner of land comprising 4 bighas 13 biswas bearing Khasra No.1246, Kh/Kht. Nos. 141/157, situated in the area of Vill. Jhiriwala HB No. 73 Prg. Gullarwala, Tehsil Nalagarh, Distt. Solan, H.P. (hereinafter referred to as the suit land). Plaintiff filed a suit for injunction restraining the defendants from installing the electric towers/ laying electric wires over the suit land. In defence the defendants pleaded that they were carrying out the work of installing the electric poles and/or laying the electric wires in connection with the 220 KV Scheme from Nalagarh to Mohali-I and Mohali-II (Jhanjehri) D.C. Line. The wires were being laid in accordance with law and after having received necessary sanction accorded in terms of Notification No. 2004/03 dated 14.8.2004. The other co-sharers in any event have not objected to the same. Along with the suit, the plaintiff filed an application for interim relief under Order 39 Rules 1 & 2 CPC. In terms of order dated 26.10.2007, trial Court allowed the application and granted interim stay “restraining the defendants from laying the overhead lines and electric towers over the suit land until and unless the procedure prescribed in the Electricity Act and Rules framed thereunder was not followed.” In the defendants’ appeal, the lower Appellate Court affirmed the same primarily on the ground that the suit land was situated in Village Jhiriwala which was about 10 to 12 kms. away 3 from Nalagarh and nothing was placed on record to show that the defendants had the sanction or authority in law to lay the wires. Defendants’ Civil Appeal No. 1-NL/14 of 2008 was dismissed by the Additional District Judge, Solan, Camp at Nalagarh in terms of order dated 7.5.2009. Heard learned counsel for the parties and also perused the record. I am afraid the Court below has not considered the entire material placed on record. Record reveals that Notifications dated 7.12.2007 and 5.3.2008 authorizing the defendants to continue to function as a Licensee under the Electricity Act, 2003 was placed on record. In fact Report of the site inspection carried out under the directions of the lower Appellate Court was on record. Unfortunately, these documents were not considered while passing the impugned orders. Notification dated 14.8.2004 (Annexure P-7), reference of which was made in the written statement, evidently clarifies that the State of Himachal Pradesh had permitted the Punjab State Electricity Board, under the provisions of the Electricity (Supply) Act, 1948 to lay down the transmission line of 220 KV from Nalagarh-Mohali-I/Mohali-II (Jhanjehri) D.C. Line. The authority of the defendants to carry out the work emanates from Section 54 of the Electricity Act, 2004, Section 4 42 of the Electricity (Supply) Act and Section 10 of the Telegraph Act. This position has not been disputed at all at the bar. There is no dispute that the plaintiff is the owner of the suit land. It is not the plaintiff’s case that the defendants are laying the electric wires over his house or any tree existing on the suit land. Hence, reliance on Rule 68 of the Electricity Act, 2003, is totally misconceived. The trial Court erred in relying upon the said Rule to hold that no permission of the Executive Magistrate had been obtained by the defendants. The detailed site inspection report, inter alia records as under:- “1. All the towers of 220 KV of Nalagarh- Mohali line in the Himachal Pradesh Area except TL-4 had since been erected as per approved Route Plan. 2. Tower foundation of TL-4 has already been done as per approved Route Plan. 3. On both sides of 220 KV Nalagarh- Mohali Line, 220 KV Transmission Lines exists, On one side of PSEB line in question, there is existing 220 KV Nalagarh- Chandigarh line, and on the other side, 220 KV line of PGCIL is coming up, towers of which have already been erected. Distances between transmissions lines have to be maintained as per Indian Electricity Rules. 4. Cluster of Houses are existing on both sides of 220 KV Nalagarh- Mohali line and minimum distance has to be maintained as per Indian Electricity Rules. Also on right side of TL-4, road to factory exists and 5 beyond the road, there is deep khud/ seasonal rivulet. On back side of TL-4 common boundary wall exists. Taking into consideration all the above facts and site conditions, TL-4 cannot be shifted to any other location as there is no other Route available.” Thus, evidently there is no alternate route on which the electric Poles/wires can be installed. The defendants had the authority in law to lay down the transmission line. Hence the lower Appellate Court erred in holding to the contrary. Village Jhiriwala no doubt is at a distance of 10 to 12 kms. from Nalagarh but, however it cannot be disputed that it falls within the revenue estate Jhanjeri and the notified Scheme covers the said village. In my considered view, the plaintiff has also not been able to make out a prima facie strong case necessitating exercise of discretion in his favour. He has also not been able to show as to how the balance of convenience lies in his favour or what irreparable loss and injury, which cannot be compensated in terms of money is likely to be suffered by him. The Apex Court in Hindustan Petroleum Corpn. Ltd. vs. Sriman Narayan & anr. (2002) 5 SCC 760, has held as under:- “Grant of an interlocutory injunction during the pendency of the legal proceeding is a matter requiring the exercise of discretion of the Court. While 6 exercising the discretion the Court normally applies the following tests :- (I) whether the plaintiff has a primo facie case; (II) whether the balance of convenience is in favour of the plaintiff; and (III)whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the exercise of the legal right asserted by the plaintiff and its alleged violation are both contested and remain uncertain till they are established on evidence at the trial The relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before which that uncertainty could be resolved The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the "balance of convenience" lies.” 7 In Maharashtra State Electricity Board vs. Janardhan Bhasusaheb Desai, AIR 1998 Bombay 75, it has been held as under:- “The scheme can be framed for generating stations, tie lines, service stations, transmission lines or establishments. S. 28 cannot be said to contemplate that while sanctioning scheme its implementation should also be charted therein. The execution and implementation of the scheme arises after it has been framed and sanctioned in accordance with law. S. 28 speaks of preparation and sanction of schemes for various purposes detailed thereunder. The finalization of the route map at the time of the framing of the scheme or its sanction is not a condition precedent for a valid and legal scheme under S. 28 and even if route map has not been prepared at the time of preparation of the scheme or not finalized at the time of grant of sanction of scheme, such scheme is not invalidated. S. 30 gives fair idea of relevant aspects for consideration by Central Electricity Authority and the said aspects may also supply relevant consideration for preparation and sanction of scheme by Board as well. Finalisation of route map for transmission line is certainly not one of such matters.” The Licensee under the Electricity Act and the Telegraph Act does not acquire any land. It only makes use of the land for the purposes of laying electric line for which compensation is given for the damage caused. Hence, no consent is required to be obtained from the owner for laying the poles or constructing any tower, as the same is done under the 8 authority and in accordance with law. A similar view has been taken by the High Court of Madras in E.Venkatesan & Ors. vs. Chairman, Tamilnadu Electricity Board, Madras, AIR 1997 Madras 64 as also in Timber Products Private Ltd. vs. Kerala State Electricity Board Trivandrum, AIR 1972 Kerala 47. Mr. Dalip Kumar Sharma, learned counsel for respondent No.1 has invited my attention to the decision rendered by this Court in Shashi Adhalakha & Anr. vs. Madhuri Sain, Latest HLJ 2000 (HP) 789, to contend that the concurrent findings of the Courts below should not ordinarily be interfered with. The Court itself has carved out an exception. Where the exercise of the jurisdiction has resulted into an illegality or material irregularity Courts can interfere. In the instant case as has been observed hereinabove, the Courts below seriously erred in ignoring the material on record which has resulted into miscarriage of justice. That the action of the defendants stems out the authority and jurisdiction vested under law is evident from the notifications placed on record. The Transmission Line is required to be set-up in larger public interest. Major work already stands completed. The State of Himachal Pradesh as also the State of Punjab are going to immensely benefit from the work being carried out by the defendants. Further, the delay in execution of the work would only result into escalation of costs, as several crores of Rupees already stand spent by the defendants on the entire 9 Scheme. In public interest the early completion of the work is necessitated. The balance of convenience lies in favour of the defendants. Hence, a ground for interference with the orders passed by the Courts below, is made out. The impugned orders being illegal are set-aside and the plaintiff’s application filed under Order 39 Rules 1 & 2 CPC is dismissed. The observations made hereinabove are only for the purposes of deciding the interim application. The question of loss or damage caused to the plaintiff’s property, if any, and to what extent, is a matter which shall be adjudicated during trial. The defendants are in any event duty bound to fairly and properly adjudicate and pay the same to the plaintiff. Mr. Anand Sharma, learned counsel for the petitioners has fairly stated that the defendants are ready and willing to pay the compensation. It is open for the plaintiff to approach the defendants for the same. The present petition stands allowed. CMP No. 589/2009 The interim order is vacated. The application is disposed of. ( Sanjay Karol ), Judge. December 23, 2009. (rana)