Roop Lal Sharma Son Of Late Sh. ... vs M/S J.P. Hydro Power Limited
2021 Latest Caselaw 4828 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                  ON THE 1st DAY OF OCTOBER, 2021
                               BEFORE




                                                                            .
          HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA





                 REGULAR SECOND APPEAL No.207 of 2008
     Between :-





     ROOP LAL SHARMA SON OF LATE SH. ISHWAR SINGH,
     R/O VILLAGE AND P.O. BASARA, TEHSIL RAMPUR BUSHAHR,
     DISTRICT SHIMLA, H.P.
                                            ......APPELLANT

     (BY SH. B.C. VERMA, ADVOCATE)





     AND

     1.     M/S J.P. HYDRO POWER LIMITED,
            BASPA-II, CHOLTU, TEHSIL NICHAR, DISTRICT KINNAUR,

            THROUGH ITS VICE PRESIDENT OF THE COMPANY.

                                         ......RESPONDENT
     2.     SMT. INDIRA DEVI WIDOW OF LATE SH. ISHWAR SINGH
     3.     SH. NARESH KUMAR SON OF LATE ISHWAR SINGH
     4.     SH. TILAK RAJ SON OF LATE ISHWAR SINGH
            ALL RESIDENTS OF VILLAGE AND P.O. BASARA, TEHSIL


            RAMPUR BUSHAHR, DISTRICT SHIMLA, H.P.
                                   ......PROFORMA RESPONDENTS

     (BY SH. ANAND SHARMA, SR. ADVOCATE WITH MR. KARAN




     SHARMA, ADVOCATE FOR R-1)
     (NONE FOR PROFORMA RESPONDENTS NO.2 TO 4)





            This appeal coming on for orders this day, the Court passed the following :

                                       JUDGMENT

By way of the present appeal, appellant has challenged the judgment

and decree passed by the Court of learned District Judge, Kinnaur Civil Division

at Rampur Bushahr, in Civil Appeal No.12 of 2007, dated 10.1.2008, vide

which, the learned First Appellate Court, has affirmed the judgment and

decree passed by the learned Civil Judge (Senior Division) Kinnaur camp at

Rampur Bushahr, District Shimla, in Civil Suit No.11-1 of 2004, dated

21.4.2007.

2. Material facts necessary for adjudication of this Regular Second

Appeal are that appellant-plaintiffs (hereinafter referred to as 'plaintiffs')

maintained a suit for mandatory injunction against the respondent-defendant

.

(hereinafter referred to as 'defendant') alleging therein that plaintiffs are

exclusive owner-in-possession of land comprised in Khasra No.489 to 492,

situated in Mauza Basara, Pargana Sarhan, Tehsil Rampur Bushehar, District

Shimla. They have built a structure over the suit land, in Khasra No.490 and

491 and developed apple orchard over the remaining land. Defendant laid 400

KV transmission line from Karchham in District Kinnaur to Jhakhari, District

Shimla, and they have erected tower No.108 and 109, outside the land of

plaintiffs, but the said transmission line passes through his land. Plaintiffs had

requested Officials of the defendant to keep height of transmission lines at

sufficient height from trees and structures built over the land. The current

came in the structure of the plaintiffs and the matter was reported to the

police on 18.1.2004 and Police had visited the spot alongwith the Junior

Engineer, Electrical and after testing the roof, there was current in it. Neither

the defendant shifted the transmission line nor had raised height of

transmission lines viz-a-viz the houses and property of the plaintiffs.

3. The suit of the plaintiffs were resisted and contested by the defendant

by filing written statement and taking preliminary objections qua

maintainability, jurisdiction, non-joinder of necessary parties and estoppel. On

merits, it has been admitted that towers No.108 and 109, have been installed

outside the land of plaintiffs for transmission of electricity, but the transmission

lines have been kept at vertical distance from house and other structures and

there is no danger to the plaintiffs and their family members to live in the

house.

4. From the pleadings of parties, the learned Trial Court framed following

issues:

"1. Whether the plaintiff is entitled to the mandatory

.

injunction, as prayed for ? OPP.

2. Whether the suit of the plaintiff is not maintainable in the present form ?OPD.

3. Whether this Court has no jurisdiction to try the suit,

as alleged ? OPD.

4. Whether the suit is bad for non-joinder of necessary parties, as alleged ? OPD.

5. Whether the plaintiff is estopped to file the present

suit by his act and conduct? OPD.

6. Relief."

5. The learned Trial Court after deciding Issue No.1 partly in favour of

the plaintiff, Issue Nos.2 to 5 in negative, partly decreed the suit.

6. Feeling aggrieved thereby plaintiffs' maintained first appeal before the

learned First Appellate Court, assailing the findings of learned Trial Court being

against the law and without appreciating the evidence and pleading of the

parties to its true perspective. The learned First Appellate Court affirmed the

findings of the learned Trial Court. Now, appellant has maintained the present

Regular Second Appeal, which was admitted for hearing on 15.10.2008, on the

following substantial question of law:

"Whether the plaintiff is entitled to relief of mandatory injunction for removal of the transmission lines which have been laid by the respondent without adopting due process of law and without payment of amount of compensation ?"

7. Mr. B.C. Verma, learned counsel for the appellant has argued that the

learned Trail Court has not taken into consideration the fact that by passing of

the electric lines over the land of the plaintiffs has become redundant and

nothing can grow beneath the land of plaintiffs. He has argued that the house

underneath electric line is having electric current, as measured by the Junior

Engineer.

8. On the other hand, Mr. Anand Sharma, learned Senior Counsel for

.

respondent No.1, has argued that plaintiffs are not allowing the defendant to

visit their house to measure the electric current, if any, existing in his house,

however the land is sufficient in height and even otherwise also, no electric

pole existing on the land of the plaintiffs, however the compensation is paid to

the plaintiffs for the plants and orchard, which were existing below the power

line.

9. In rebuttal, Mr. B.C. Verma, learned counsel for the appellant has

argued that the electric lines are causing disturbance, plaintiffs cannot used

their house nor plaintiffs can enjoy their land by raising plants or orchard

existing on the electric lines.

10. To appreciate the arguments of learned counsel appearing on behalf

of the parties, I have gone through the entire record in detail.

11. In order to prove its case, PW-3 ASI Roop Lal, visited his house

alongwith other Police Officials and Junior Engineer, Electricity Department,

stated that when PW-5, Manohar Lal Verma and Jawahar Singh, tested the CGI

sheets with testor, then those tin sheets were found charged with current. In

his cross-examination, he has stated that this house had no electricity

connection and presence of current was on account of earthing. He has

further stated that when temporary earthing was done, then current

disappeared. PW-5, Manohar Lal Verma, deposed that he went to the

plaintiff's house and saw that one structure, which had no electricity

connection there was current on tin roof. However, PW-1, Ishwar Singh

deposed that since the year 1990, there is electricity connection in his house,

whereas in the adjoining 'shed' built up for 'Mali' there is no electricity

connection, however there is presence of current was detected in the roof of

'shed' i.e. Mali's house.

.

12. It is true that this induction current is unsafe for human life, as stated

by PW-5 and can be prohibited by proper earthing. It is the duty of defendant

to provide necessary earthing in the shed, as shown in the site plan Ex.DW1/B.

Plaintiffs did not allow the employees of defendant to inspect their house and

dhara whenever they went there to detect the presence of current on roof top.

PW-5, Manohar Lal Verma, stated that current was present on the roof top of

shed because of induction on account of transmission line of defendant exactly

over the shed. However, in the site plan, Ex.DW1/B, showing the distance of

trees and houses viz-a-viz transmission line has been admitted by PW-5,

Manohar Lal Verma, Junior Engineer, by stating that transmission lines are at a

vertical distance of around 15 metres, therefore, statement of PW-1, Ishwar

Singh that transmission wires are the height of 4-5 meters. PW-2, Nand Lal,

deposed that height of 3 ½ meters are totally incorrect. These transmission

lines may have been put up as per norms, but still the passage of current by

way of indunction can be prohibited only if there is proper earthing of the

structure situated down below the line. DW-1, K.B.R. Dubey, in his cross-

examination, stated that the passage of current into building built below

transmission line is not possible, if proper earthing takes place. Moreover, PW-

5, Manohar Lal Verma specifically stated that presence of current on roof top

of shed was because of induction, since proper earthing of shed was not done,

when he temporarily installed earthing, the current disappeared. Plaintiffs

have claimed erection of another tower between towers No.108 and 109, so

that height could be raised, but they have not produced any material where

the tower should be set up at what level and height. Therefore, defendant is

directed by way of mandatory injunction to do properly earthing of the 'shed'

of the plaintiff, comprised in Khasra No.491, as depicted in the site plan,

Ex.DW1/B, so that current does not pass on the roof. The plaintiff's case is

.

that his apple trees fall under the transmission line and because of danger of

current, he is not in a position to do agricultural work. In his rapat Ex.PW3/A,

plaintiff no where stated that because of presence of transmission line, he was

not in a position to do agricultural work in his orchard. The Sub Divisional

Magistrate, Rampur, constituted a Committee for payment of compensation to

growers in respect of trees, which were coming underneath transmission line.

The amount was deposited by the Sub Divisional Magistrate, but plaintiffs

refused to receive the payment. Thereafter, the Sub Divisional Magistrate,

passed an order for cutting of trees falling underneath the line in respect of

which the compensation had been deposited by the defendant. Plaintiffs are

not permitting the defendant to cut these trees falling in the induction line and

still complaining that there is danger in doing agricultural operations in respect

of such trees. In these circumstances, substantial question of law, as framed

by this Court is answered accordingly holding that plaintiff is not entitled for

the relief of mandatory injunction for removal of the transmission lines, which

are laid through, but he is entitled for mandatory injunction, as passed by the

learned Trial Court.

13. In view of the facts and circumstances of the case, the judgment and

decree of mandatory injunction, as passed by the learned Trial Court, is

required to be executed. However, the judgment and decree passed by the

learned First Appellate Court, is modified to the extent that in case, appellant-

plaintiff does not allow the defendant to do proper earthing of the 'shed' of the

plaintiffs within six months from the date of passing of the judgment passed

by this Court, suit of the plaintiff should have been dismissed with costs and is

required to be quashed. The remaining judgment and decree passed by the

learned First Appellate Court, will remain operational for the reasons as

discussed hereinabove meaning thereby that the judgment and decree passed

.

by the learned Trial Court is upheld in totality.

14. In view of the above, the instant appeal is disposed of in the

aforesaid terms. In the peculiar facts and circumstances of the case, parties

are left to bear their own costs. Pending application(s), if any, shall also

stands disposed of. Record of the learned Courts below be sent back

immediately

(Chander Bhusan Barowalia) 1st October, 2021 Judge (CS)