IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 458 of 2001. Date of decision: 9.9.2011. HPSEB & anr. ….. Appellants. Vs. Sansar Chand Katoch …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Trilok Jamwal, Advocate. For the Respondent : Mr. Ramakant Sharma, Advocate. Kuldip Singh, Judge (Oral). The appellants, who were defendants, have filed the appeal against judgement, decree dated 23.7.2001 passed by learned District Judge, Kangra at Dharamshala in Civil Appeal No. 84- P/XIII-2000, affirming judgement, decree dated 31.3.2000 passed by learned Senior Sub Judge, Kangra at Dharamshala in Civil Suit No. 63 of 1994. 2. The facts in brief are that respondent had filed a suit for mandatory injunction directing the appellants to remove the electric poles installed illegally and unauthorisedly near his house and out- house in village Khaira, Tehsil Palampur, District Kangra. It has been alleged that respondent after retirement settled at Ram Nagar, Dharamshala. He occasionally visited his ancestral house in village Khaira. In April 1991, in his absence, the appellants had fixed three Whether the reporters of the local papers may be allowed to see the Judgment? …2… poles close to the entry gate of his house and near the courtyard. There is a power line near and over his house. The appellants had fixed another pole on his land after shifting the same from the land of one Upinder Paul. The appellants before fixing the poles did not acquire the land nor did they take consent of the respondent. The fixing of poles by the appellants over the land of the respondent is against the rules and instructions. In presence of poles, the further development and extension of the house of the respondent has been adversely affected. It has been alleged that a notice dated 7.9.1993 was issued to the appellants, but to no avail. The respondent ultimately filed the suit 3. The appellants contested the suit by filing written statement. The appellants took the stand that before erecting the poles, proper survey was conducted in the presence of the respondent, who did not raise any objection. Only one pole was erected on his land. In erecting the poles and fixing power lines, no loss was caused to the respondent. It has been denied that pole had been shifted from the land of Upinder Paul. The power lines are 15 metres from the house of the respondent. The shifting of the pole was not feasible. The land in question is free from danger and adequate safety measures have been provided on the line in accordance with the rules. The appellants have prayed for dismissal of the suit. 4. The respondent filed the replication and reiterated the stand taken in the plaint while contesting the case projected by the appellants. On the pleadings of the parties, the following issues were framed:- …3… 1. Whether the field staff of the defendants fixed three electricity poles over the land of the plaintiff just near the gate of the house of the plaintiff and one more pole was subsequently fixed on the land of the plaintiff without his consent and acquiring the same, as alleged? OPP. 2. Whether the suit is not maintainable in the present form? OPD. 3. Whether the plaintiff is estopped from filing the suit by his act, conduct and acquiescence? OPD. 4. Whether the suit is barred by time? OPD. 5. Relief. Issues No. 2 to 4 were answered in negative, under issue No. 1, it has been held that only one electric pole has been installed besides few stay wires have been fixed on the land of the respondent at a distance of 4-5 metres from his residential house without the consent of the respondent and payment of compensation. The suit was decreed by learned Senior Sub Judge on 31.3.2000 and a decree of mandatory injunction was passed against the appellants to remove the electric poles, stay wires installed on the land of the respondent. The local commissioner report Ex. PW 1/G was made part of the decree. 5. In appeal, the learned District Judge, on 23.7.2011, has affirmed the judgement and decree dated 31.3.2000. Hence, second appeal, which has been admitted on the following substantial questions of law:- 1. Whether the courts below are justified in granting a decree for mandatory injunction for the removal of electric pole and stay wires if these have been …4… erected under a sanctioned scheme for drawing of electricity supply lines? 2. Whether the plaintiff could have been adequately compensated by grant of compensation instead of granting him a decree of mandatory injunction in the facts and circumstances of the case? 6. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the appellants has submitted that two courts below have not properly appreciated the material on record and have erred in granting a decree of mandatory injunction for removal of electric poles and stay wires. The courts below have not considered the question of payment of compensation in alternative to the respondent. It has been submitted that poles were erected with the consent of the respondent, therefore, there is no question of granting mandatory injunction. The learned counsel for the respondent has supported the impugned judgement, decree and has submitted that appellants have taken the benefit of absence of respondent from the village and erected electric poles on the land of respondent and stay wires as well as power lines, which are not only nuisance to the respondent but also creating hindrance for further development of the property of the respondent. The learned counsel for the respondent has prayed for dismissal of the appeal. 7. The substantial question of law No. 2 is taken up first for determination. The learned counsel for the appellant has submitted that two courts below should have considered the case from the angle of payment of compensation to respondent even if the courts …5… below came to the conclusion that electric poles and stay wires as well as power lines have been wrongly and illegally placed by the appellants over the property of the respondent. The appellants in the written statement have not taken the plea of payment of compensation in alternative to the respondent. This question at the second appeal stage is not free from other difficulties. The compensation, if any, is to be awarded on the basis of some norms, which require evidence. In the present case, the case was not tried from the angle of payment of compensation as the appellants never raised this question, there is no material on record to assess the compensation to be paid to respondent in alternative. This question was not put to issue at the instance of the appellants in the courts below. In these circumstances, the submission of learned counsel for the appellants for payment of compensation to the respondent at this stage in second appeal cannot be considered. There is no merit in substantial question of law No. 2, which is decided against the appellants. 8. In so far as substantial question of law No. 1 is concerned, it has been submitted that pole, stay wires and power lines have been erected as per sanctioned scheme prepared for the purpose. The learned counsel for the appellants has fairly stated that in the written statement no plea of sanctioned scheme has been taken. It has come on record that power line, in question, is 11 KV line, which is admittedly H.T. line. The Electricity (Supply) Act, 1948 was in force at the relevant time. The H.T. line of the nature laid by the appellants through the property of the respondent by erecting pole …6… and power lines required sanctioned scheme under Sections 28 or 29 of the Electricity (Supply) Act, 1948. What to talk of proving such sanctioned scheme, even no plea to that effect has been taken in the written statement. 9. The two courts below have recorded a finding of fact that pole, stay wires and power lines have been laid by the appellants over the property of the respondent without his consent and without payment of compensation to him. It is purely a finding of fact. It has not been pointed out that while recording such findings, the two courts below have considered inadmissible evidence or some material evidence which goes to the root of the case has been ignored by the two courts below. There is no scope for interference in the second appeal in the facts and circumstances of the case, which has been proved by the respondent on record. Therefore, substantial question of law No. 1 is decided against the appellants. 10. In view of above discussion, the appeal fails and the same is accordingly dismissed with no order as to costs. September 9, 2011. ( Kuldip Singh ), (Hem) Judge.