Karnataka High Court

Dattatraya Timmanna Areguli vs The Executive Engineer on 26 July, 2024

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     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
           DATED THIS THE 26TH DAY OF JULY, 2024
                             BEFORE
          THE HON'BLE MR. JUSTICE C.M. POONACHA
         REGULAR SECOND APPEAL NO. 5023 OF 2009
BETWEEN

1.     DATTATRAYA TIMMANNA AREGULI,
       AGE: ABOUT 42 YEARS, OCC: AGRICULTURIST,
       R/O DEHALLI, TQ: YELLAPUR, DIST: N.K.
2.     RAMAKRUSHNA TIMMANNA AREGULI
       AGE: ABOUT 37 YEARS, OCC: AGRICULTURIST,
       R/O DEHALLI, TQ: YALLAPUR, DIST. N.K.
                                                    ...APPELLANTS
(BY SRI KRISHNA KUMAR, ADVOCATE
SRI V.P.KULKARNI, ADVOCATE)
AND
  1. THE EXECUTIVE ENGINEER
     KARNATAKA ELECTIRICITY BOARD,
     SIRSI DIVISION, SIRSI

     2. THE CHAIRMAN,
        KARNATAKA BOARD,
        CAUVERY BHAVAN, BENGALURU.

     3. SADASHIV TIMMANNA AREGULI
        AGE: ABOUT 49 YEARS, OCC: AGRICYLTURIST,
        R/O MOTGADDE IN DEHALLI,
        TQ: YELLAPUR, DIST: N.K.
                                                   ...RESPONDENTS
(BY SRI BHUSHAN B. KULKANRI, ADVOCATE FOR R1;
NOTICE TO R2 AND R3 SERVED BUT UNREPRESENTED)

     THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE PASSED BY THE PRL. CIVIL JUDGE (SR.DN.)
YELLAPUR IN R.A.NO.194/2006 & 196/2006 DATED 12.09.2008
REVERSING THE JUDGMENT AND DECREE PASSED IN O.S.NO.16/94.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 25.07.2024 COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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                                           JUDGMENT

The present second appeal is filed under Section 100 of the

Code of Civil Procedure, 19081 by the plaintiffs challenging the

judgment and decree dated 12.09.2008 passed in RA

Nos.194/2006 and 196/2006 by the Civil Judge (Sr.Dn.), Yellapur2

and by the judgment and decree dated 18.12.1998 passed in

O.S. No.16/1994 by the Court of Civil Judge (Jr.Dn.), Yellapur3,

whereunder the suit for injunction has been decreed by the Trial

Court and the appeal filed by the defendant before the first

appellate Court has been allowed, the judgment and decree

passed by the Trial Court has been set aside and the suit has been

dismissed.

2. For the sake of convenience, the parties herein are

referred as per their rank before the Trial Court.

3. It is the case of the plaintiffs that they and defendant

No.1 are agriculturists having adjoining properties. That the

plaintiffs are brothers and holders of RS No.69 of Dehalli village,

Hereinafter referred to as 'CPC'

Hereinafter referred to as 'first appellate Court'

Hereinafter referred to as 'trial Court'

which is a samayaka property. That defendant No.1 is a owner of

RS No.102 of the same village.

4. It is the case of the plaintiffs that after digging a well in

their property, they got permission and were sanctioned with the

electric connection, consequent which, they installed a 5 H.P.

pumpset in December 1991. That since the plaintiffs found the

line of electric poles were causing obstruction for growing trees of

areca in his land and having regard to the danger on account of

hanging wires, the plaintiffs applied to the authorities to change

the said wires and poles and for shifting of the said electric poles

to a different area. That the defendant No.2 accepted the request

of the plaintiffs and the old existing line was changed.

5. It is the further case of the plaintiff that defendant No.2

at the instance of defendant No.1 intending to lay overhead lines

for fixing of poles in RS No.69 for laying a new line for the

defendant No.1 to establish a pump set in his property bearing RS

No.102 of Dehalli Village, approached the statutory authorities

and hence, the plaintiffs have filed objections regarding laying of

poles in RS No.69. Despite the same, defendant No.2 has put the

poles and other material in the land of the plaintiffs. Hence, the

plaintiffs filed a suit for declaration and perpetual injunction.

6. The defendants entered appearance through their counsel

and filed their written statement. The defendant No.1 has

admitted the relationship as averred in the plaint. However, it is

contended that laying of overhead electric lines over the suit

property bearing No.69 would not cause any danger to any person

or property. The other averments in the plaint have been denied

by the defendant No.1. It is the specific contention of defendant

No.1 that he has not pressurized defendant No.2 or any other

authority to lay the electric line through the property of the

plaintiffs in Sy.No.69 and the statutory authorities are doing their

statutory work in accordance with law.

7. Defendant No.2 has also filed written statement denying

the case of the plaintiffs and further denied that defendant No.1

has instigated defendant No.2 to lay the line over the plaintiffs'

property. It is further contended that the plaintiff has no legal

right to restrain defendant No.2 from laying overhead line in their

lands. That defendant No.2 is not required to issue any notice to

the owners of the lands. Hence, defendant No.2 sought for

dismissal of the suit.

8. Defendant No.3 filed a memo adopting the written

statement filed by defendant No.2.

9. Based on the pleadings of the parties, the Trial Court

framed the

following issues:

1.Whether the plaintiffs prove that the defendant No.2 changed the old electrical supply line in Sy.No.69 of Dehalli Village, which was sanctioned in the year 1991 by accepting necessary charges from the plaintiffs to avoid possible damages to life and the properties?

2. Whether the plaintiffs prove that at present there are no energy supply line in R.S. No.69?

3. Whether the plaintiffs prove that defendant No.2 is once again laying overhead line in Sy.

No.69 for supply of energy to defendant No.1 to his pumpset newly to be established in Sy.No.102 of Dehalli village at the instance of the defendant No.2 illegally with malice intention?

4. Whether the plaintiffs prove that taking of overhead line through Sy.No.69 without prior

notice to the plaintiff and without hearing objection filed by them to that effect is illegal act on the part of the defendant No.2?

5. Whether the plaintiffs prove that defendants are interfering in peaceful possession and enjoyment of the plaintiffs?

6. Whether defendant No.2 proves that it has got right to supply the electrical energy to defendant No.1 by taking line through the land of the plaintiffs?

7. Whether defendant No.1 proves that either the plaintiffs or defendant No2. Have no legal or moral rights to change the old electrical line which passed through Sy.No.697?

8. Whether the defendant No.1 proves that he is entitled for Rs.3000/- as compensatory costs and plaintiffs are liable to pay the loss ensuing him due to his non-supply of power to his pumpset?

9. Whether the suit is maintainable in the present form?

10. What decree or order?

10. The plaintiff No.1 examined himself as PW.1. Exs.P1 to

P10 have been marked in evidence. The report of the

Commissioner has been marked as Ex.C1. Defendant No.1

examined himself as DW.1. No documents have been marked in

evidence. The Trial Court by its judgment and decree dated

18.12.1998, decreed the suit and passed the following order:

The suit of the plaintiffs is decreed with costs as follows:

(1) It is declared that the defendants Nos.2 and 3 have no right of any kind to erect the electric poles and to transmit the electric energy overhead lines upon the said poles in R.S. No.69 area 7-27-0 K.0-2-0 assessed Rs.30-58 ps to supply energy to the Pumpset of defendant No.1 situated s in R.S. No.102 of Dehalli village, causing danger to the person and property of plaintiffs in any manner and the attempt on their part is illegal.

(2) Perpetual Injunction is hereby granted restraining the defendants, their men and servants from laying any overhead electric line in R.S. NO.69 area 7027-0, K.0-2-0 assessed at Rs.30-58 bounded by survey stones, the land of the plaintiffs, to supply the energy to defendant No.1 for the intended pumpset or for any purpose causing the danger to the person and property of the plaintiffs, in any manner, and causing obstruction to the peaceful possession and enjoyment of the suit property by the plaintiffs.

(3) Draw up a decree accordingly.

11. Being aggrieved, defendant Nos.1 and 2 preferred RA

Nos.196/2006 and 194/2006 respectively. The plaintiff entered

appearance in the said proceedings and contested the same. The

first appellate court framed the following points for consideration:

Point No.1: Whether the lower court is justified in granting relief of declaration on the basis of vague prayer of the plaintiff?

Point No.2: Whether defendant Nos.2 and 3/KEB are totally prohibited from laying electric line or over head lines in private lands in view of sanction 10 and 16 of the Indian Electricity act 1910 and Telegraphic Act 1885?

Point No.3: Whether the judgment and decree of the lower court calls for interference with by this court?

Point No.4: What order?

12. The first appellate Court by its judgment and decree

dated 12.09.2008 allowed the appeals, set aside the judgment

and decree passed by the Trial Court and dismissed the suit.

Being aggrieved, the present second appeal is filed.

13. This Court by order dated 21.10.2013 has admitted the

above appeal and framed the following substantial questions of

law:

1. Whether the judgment and decree passed by the lower appellate Court in allowing the appeal and reversing the judgment and decree passed by the trial Court contrary to Sec. 17 of the Indian Telegraphic Act, 1985 is sustainable in law?

2. To consider any other question of law which may arise for consideration while hearing the appeal?

14. Learned counsel for the appellants/plaintiffs Sri

S.R.Krishna Kumar Joshi assailing the judgment and decree

passed by the first appellate Court submits that as per Sections

10 and 16 of the Indian Telegraph Act, 18854 the authorities were

required to take necessary permission from the District Magistrate

in the event of any objection from the land owner. That the

plaintiffs having objected to the attempt by the authorities to lay

the electric lines, the necessary permission as required under the

Hereinafter referred to as the 'Act, 1985'

Act, 1885 has not been taken. Hence, he seeks for allowing of the

above appeal and granting of the reliefs sought for.

15. In support of his contentions, he relied upon the

following judgments:

i. Thirthesh A.S. Vs Union Secretary to the Government of India5

ii. A.T. Thippeswamy Vs Karnataka Electricity Board6

16. Before considering the factual matrix, it is relevant to

note the necessary provisions of the Act, 1985, which are/is as

under:

"16. Exercise of powers conferred by section 10, and disputes as to compensation, in case of property other than that of a local authority.-- (1) If the exercise of the powers mentioned in section 10 in respect of property referred to in clause (d) of that section is resisted or obstructed, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them.

(2) If, after the making of an order under sub-

section (1), any person resists the exercise of those powers, or, having control over the property, does not give all facilities for their being exercised, he shall be deemed to

AIR 2008 Karnataka 37

ILR 1990 KAR 1038

have committed an offence under section 188 of the Indian Penal Code, 1860 (45 of 1860)."

17. A Division Bench of this Court in the case of Thirthesh

A.S.5 while considering a writ petition filed by the owner of a land

opposing the proposal to draw a high tension power line over his

property, noticing the relevant legal position has recorded a

finding that the relevant authorities were bound to refer the

matter to the District Magistrate under Section 16(1) of the Act,

1885 and the District Magistrate acting under Section 16(1) of the

Act, 1885 was required to issue notice to all persons interested

and give them an opportunity to file their objections.

18. In the case of A.T. Thippaswamy6, a coordinate Bench

of this Court has held as under:

No doubt Section 16(1) and (2) of the Indian Telegraphs Act are not noticed in the aforesaid decision. But even the aforesaid provisions also do not in any way affect the right of the respondents to enter upon the land for the purpose of placing of electric supply lines, appliances and apparatus for the transmission of energy. All that happens is that in the event, resistence is offered or obstruction is caused

by the petitioners for the entry of the respondents into their lands for the purpose of fixing electric poles or drawing electric lines for the transmission of energy, the respondents are required to approach the District Magistrate and obtain his permission to carryout the work for the aforesaid purpose. In such an event without obtaining permission from the District Magistrate under the aforesaid provision, the respondents cannot proceed to execute the work in the lands of the petitioners for the aforesaid purpose for the transmission of energy. The District Magistrate has to consider the case of the respondents after notice to the petitioners and after affording them an opportunity of hearing, he may pass an order in his discretion permitting the respondents to carry on the work for the aforesaid purpose of transmission of energy. No doubt Sub-section (1) and (2) of Section 16 of the Indian Telegraph Act do not provide in express terms for issuing notice and hearing the affected party; but it is implicit in it, because no order whether judicial or administrative or otherwise, affecting a party can be passed without

notice and without affording an opportunity of hearing to the affected party.

(emphasis supplied)

19. In the present case it is clear that the plaintiffs have

objected to the attempt to draw the power line above their

property. It is further clear that defendant Nos.2 and 3 have not

taken recourse to the procedure as contemplated under Section

16(1) of the Act, 1985.

20. The Trial Court noticing that an attempt was being made

to draw the power line over the property of the plaintiffs and

noticing the judgment in the case of A.T.Tippeswamy6 has

decreed the suit.

21. The first appellate Court while re-appreciating the

factual matrix of the matter has held that the finding recorded by

the Trial Court that defendant no.1 has no right to get electricity

connection is erroneous. Although first appellate court has in

detail re-appreciated the factual matrix of the matter while

holding that there is no possibility of any danger being caused, it

erred in dismissing the suit in its entirety.

22. In the considered opinion of this Court, having regard

to the clear stipulation contained in Section 16(1) of Act, 1885

there is no requirement to undertake a detailed appreciation of

the facts of the case. Suffice it to note that the plaintiffs having

objected for drawing up of the power line, the first appellate Court

ought to have granted the relief to the extent of protecting the

plaintiffs until the defendants to secure the requisite permission as

contemplated under law.

23. It is also relevant to note that the absolute decree

granted by the Trial Court is also erroneous and the decree as

granted by the Trial Court would virtually be contrary to the

provisions of the Act, 1885.

24. In view of the discussion made above, the relief sought

for by the plaintiffs in is required to be granted subject to the

defendants securing the requisite permission in terms of the

provisions of the Act, 1885 if they undertake any work of laying

electric line in the property of the plaintiffs.

25. In view of the aforementioned, the substantial questions

of law are answered in the Negative. Hence, the following:

ORDER

i. The above appeal is allowed.

     ii.    The    judgment     and      decree   dated
            12.09.2008          passed       in       RA
            Nos.194/2006 and 196/2006 by the
            Civil Judge (Sr.Dn.), Yellapur is         set
            aside;

     iii.   The    judgment     and      decree   dated
            18.12.1998        passed        in     O.S.
            No.16/1994 by the Court of Civil

Judge (Jr.Dn.), Yellapur is modified and the said suit is partly decreed and defendant Nos.1 and 2 are restrained by an order of injunction from laying any electric line over the suit property belonging to the plaintiff except, after complying with the provisions of Section 16(1) and (2) of the Indian Telegraph Act, 1885 and/or any other applicable statute, in accordance with law.