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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Hon'ble Mr. Justice Sachidananda Acharya
Acts
  • provisions of the Indian Electricity Act, 1910 (hereinafter referred to as I.E Act) and the Electricity (Supply) Act, 1948 (hereinafter referred to as E.S Act)
  • provisions of the E.S Act read with Part III of the Indian Telegraphs Act, 1885 (hereinafter referred to as I.T Act).
  • provisions of Sections 12 to 19 of the I.E Act.9. Moreover, the provisions of Section 10 of the I.E Act
  • Section 42, the provisions of Sections 12 to 19 of the I.E Act
  • Section 12(3) of the I.E Act and Section 10(b) of the I.T Act
  • provisions of Sections 12 to 19 of the I.E Act
  • Section 12 of the (2) of that Act,
  • Section 10(b) of the I.E Act
  • Section 12 of the I.E Act
  • Section 42 of the E.S Act.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Hon'ble Mr. Justice Sachidananda Acharya
Acts
  • provisions of the Indian Electricity Act, 1910 (hereinafter referred to as I.E Act) and the Electricity (Supply) Act, 1948 (hereinafter referred to as E.S Act)
  • provisions of the E.S Act read with Part III of the Indian Telegraphs Act, 1885 (hereinafter referred to as I.T Act).
  • provisions of Sections 12 to 19 of the I.E Act.9. Moreover, the provisions of Section 10 of the I.E Act
  • Section 42, the provisions of Sections 12 to 19 of the I.E Act
  • Section 12(3) of the I.E Act and Section 10(b) of the I.T Act
  • provisions of Sections 12 to 19 of the I.E Act
  • Section 12 of the (2) of that Act,
  • Section 10(b) of the I.E Act
  • Section 12 of the I.E Act
  • Section 42 of the E.S Act.
See more information ...
Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The plaintiffs filed a suit seeking a mandatory injunction directing the defendants to remove electric poles and transmission lines fixed on and over two specified suit plots (plot No. 108 under Khata No. 119 of mouza Jagamara and plot No. 6 under Khata No. 238 of mouza Dum Duma), which the plaintiffs alleged belonged to them and were reserved for residential construction under the Town Planning Scheme (Ext. 6 and plan Ext. 1).

The plaintiffs alleged that the Orissa State Electricity Board (the Board, defendants Nos. 1 and 2) devised transmission schemes that did not require the electric lines to pass over the suit lands, but the Board nevertheless fixed poles and diverted the alignment so the lines passed over the plaintiffs' land without their consent and contrary to the provisions of the Indian Electricity Act, 1910 (I.E. Act) and the Electricity (Supply) Act, 1948 (E.S. Act). The plaintiffs served notices dated 19-10-67, 29-1-68 and 20-9-68 objecting to the work.

In its written statement the Board denied the plaint allegations, asserted the transmission line was drawn in accordance with the sanctioned scheme under the E.S. Act read with Part III of the Indian Telegraphs Act, 1885 (I.T. Act), and explained that deviations were necessary for public safety because a petrol pump (M/s Khandagiri Service Station) and buildings affected the original alignment; the Board admitted that the plaintiffs obstructed works and that police assistance was used.

The trial court found the transmission line over the suit land to be a deviation from the sanctioned scheme, held the Board's acts were illegal and without jurisdiction, and decreed the plaintiffs' claim for a mandatory injunction, directing removal of the poles and line within three months.

The appellate court, after reassessing evidence and law, found there was no provision in any sanctioned scheme authorising poles/lines on the suit lands and that mandatory notice under Section 12 of the I.E. Act had not been served nor was there any order by the District Magistrate under the Act; it therefore held the Board had no authority and confirmed the trial court decree.

The Board (appellants) appealed to this Court. During the appeal the appellants sought to admit additional documents (a Board resolution dated 20-11-73, a revised plan and a memorandum allegedly signed by the Board's Secretary) filed on 14-2-74. The respondents opposed admission. This Court considered the admissibility and legal effect of those documents and ultimately rejected the petition for additional evidence and dismissed the appeal with costs.

Legal Issues Presented

  1. Whether the Board was authorised to place electric poles and transmission lines on and over the plaintiffs' suit land in the absence of provision for such works in any sanctioned scheme.
  2. Whether the mandatory procedure under the Indian Electricity Act, 1910 (in particular Section 12 and the regime of Sections 12–19) was complied with before the Board executed the works on the plaintiffs' land, and if not, whether the works were lawful.
  3. Whether an ex post facto Board resolution and accompanying documents (filed during the appeal) could retrospectively validate the earlier, unauthorised works and thereby defeat the plaintiffs' mandatory injunction.
  4. Whether the appellants could rely on protections under Section 42 of the Electricity (Supply) Act, 1948, or invoke provisions for payment of compensation (references in the opinion include Section 10(b) and Section 12(3) of the I.E. Act and Section 10(b) of the I.T. Act) as an alternative remedy.

Arguments of the Parties

Appellants' Arguments (Board)

  • The Board denied the plaint allegations and stated the transmission line was drawn in accordance with the sanctioned scheme under the E.S. Act read with Part III of the I.T. Act.
  • The Board asserted deviations from the approved alignment were necessary for public safety because a petrol pump and buildings were on the original alignment and property owners would not permit the line as originally sanctioned.
  • Mr. Rath, representing the appellants, contended that the Board by its resolution dated 20-11-73 accorded ex post facto sanction to the transmission line over the plaintiffs' land, and that consequence should be to rescind the mandatory injunction and instead direct payment of compensation (invoking Section 10(b) as advanced in the appeal).

Respondents' Arguments (Plaintiffs)

  • The plaintiffs maintained that the lines and poles were erected without consent and contrary to sanctioned schemes and statutory requirements (I.E. Act and E.S. Act), and that they had served prior notices objecting to the works and physically opposed the works.
  • The respondents opposed admission of the additional documents filed by the appellants and challenged their authenticity and legal effect; they also opposed acceptance of those documents at the appellate stage without proper proof and opportunity to rebut.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court's analysis proceeded from factual findings made by the courts below and examined whether statutory provisions and any later Board action could validate the complained-of works.

1. Factual baseline: The courts below had found, and this Court accepted for the purposes of the appeal, that the transmission line and poles on the suit land were not authorised by any provision in a sanctioned scheme. The appellants did not successfully challenge those findings of fact.

2. On statutory regime and availability of statutory protections: The Court considered Section 42 of the E.S. Act and its proviso. The proviso to Section 42 provides that where a sanctioned scheme does not make provision for placing/maintaining/taking wires, poles and appliances for transmission and distribution of electricity (as mentioned in paragraph 1 of S.42), then the provisions of Sections 12 to 19 of the Indian Electricity Act, 1910 shall apply to the works of the Board.

Because the disputed line was not in accordance with any sanctioned plan, the Court held that the Board could not rely on Section 42 for protection and that the Part III powers under the I.E. Act (Sections 12–19) applied. The memorandum attached to the resolution admitted that the alleged alteration was done by the Superintending Engineer without prior sanction by the Board, underscoring that protection under Section 42 was unavailable.

3. On retrospective validation by ex post facto resolution: The Court analysed whether the Board's resolution (said to be dated 20-11-73) and accompanying documents filed as additional evidence could retrospectively legalise the works carried out in 1968–69. The Court found nothing in Section 42 or any other relevant law to support the proposition that ex post facto sanction would retrospectively legalise prior unauthorised works and treat them as if done under a sanctioned scheme. Consequently, the proviso to Section 42 continued to bring the works within the scope of Sections 12–19 of the I.E. Act.

4. On procedural prerequisites and compensation provisions: The Court observed that the plaintiffs had resisted and obstructed the construction; therefore, the appellants could not invoke Section 10 (and related provisions) of the I.E. Act because the order of the District Magistrate contemplated under Section 16(1) had not been obtained. The Court further held that provisions for payment of compensation under Section 12(3) of the I.E. Act and Section 10(b) of the I.T. Act (as cited in the opinion) for the unauthorised construction could not be invoked at this stage.

5. On admissibility and effect of additional evidence: The Court found that the documents the appellants sought to admit were not proved in accordance with law. Acceptance at the appellate stage would have required remand to the trial court to permit proof and to allow respondents the opportunity to rebut. Even if those documents were admitted, the Court held they would not afford the appellants protection under Section 42 nor would they retrospectively cure the lack of compliance with Sections 12–19 of the I.E. Act. The Court therefore rejected the petition for additional evidence.

6. On motives and timing of alleged sanction: The Court noted the ex post facto sanction (as evidenced by the documents) was accorded only two days before filing the second appeal and more than four years after the completion of the works, and treated that timing as an attempt to obviate the effect of concurrent decisions in the courts below.

7. Conclusion of analysis: Given the lack of prior sanction, the absence of required procedures under the I.E. Act, the inadmissibility and ineffectiveness of the late-filed documents, and the failure to obtain necessary orders (e.g., District Magistrate direction under Section 16(1)), the Court found no basis to disturb the concurrent decrees in favour of the plaintiffs.

Holding and Implications

Holding: The appeal is DISMISSED (dismissed with costs).

Implications and direct consequences:

  • The concurrent decrees of the courts below in favour of the plaintiffs — which had ordered removal of the electric poles and transmission line from the plaintiffs' suit land — remain in force and are not altered by this Court's decision.
  • The Board's late-filed resolution and accompanying documents were not admitted as additional evidence and, in any event, were held insufficient to retrospectively validate the unauthorised works or to invoke protection under Section 42 of the E.S. Act.
  • The appellants cannot now invoke the statutory compensation or alternative procedures cited (including references in the opinion to Section 10(b), Section 12(3) of the I.E. Act and Section 10(b) of the I.T. Act) to cure the prior unauthorised execution of the works, where mandatory statutory procedures (Sections 12–19 of the I.E. Act and orders under Section 16(1) as applicable) were not followed and the plaintiffs resisted the works.
  • No new precedent or novel statutory construction was established beyond the application of the existing statutory framework (as paraphrased in this opinion); the decision enforces the consequence that unauthorised works done without adherence to the statutory processes and without sanctioned scheme provisions cannot be retrospectively validated by belated administrative resolutions in the circumstances of this case.

This summary is derived exclusively from the text of the provided opinion. No information not present in the opinion has been added.

Show full summary ...

    The Orissa State Electricity Board And Another v. Pyari Mohan Patnaik And Others

    1. The unsuccessful defendants in both the courts below have preferred this appeal.

    2. The plaintiffs' suit is for mandatory injunction against the defendants directing the latter to remove the electric poles and electric lines fixed by them on and over the plaintiffs' land The plaintiffs' case, in short, is that plot No. 108 under Khata No. 119 of mouza Jagamara and plot No. 6 under Khata No. 238 of mouza Dum Duma described in the suit plan Ext. 1 attached to the plaint belong to the plaintiffs. Those plots are included in the Town Planning Scheme as per Ext. 6 and the plaintiffs had reserved the same for construction of residential buildings. The defendants framed schemes for transmission of electric lines for distribution of electricity, and under the said scheme the electric line was not to pass over the plaintiffs' lands. But to their surprise the defendants started fixing the electric poles on the suit lands and placed electric lines over the same completely disregarding the said scheme. The said electric supply lines over the suit lands were laid without taking the consent of the plaintiffs and against the provisions of the Indian Electricity Act, 1910 (hereinafter referred to as ‘I.E Act’) and the Electricity (Supply) Act, 1948 (hereinafter referred to as ‘E.S Act’) and the rules made thereunder. The plaintiffs all along opposed the construction of the said supply lines over their lands, and by notices dated 19-10-67, 29-1-68 and 20-9-68, served by the plaintiffs on the defendants, the defendants were asked to refrain from taking the said transmission lines over the plaintiffs' lands. The defendants disregarded all objections of the plaintiffs to the above effect and illegally diverted the original alignment of the electric supply line framed under the Scheme. It is also alleged that the electric supply line as per the scheme was to pass over the land belonging to M/s. Khandagiri Service Station but the defendants in collusion with the said service station illegally and forcibly diverted the supply line over the suit land belonging to the plaintiffs. Hence the suit

    3. The Orissa State Electricity Board (hereinafter referred to as the ‘Board’) represented through its Chairman is defendant No. 1 and the Board, again represented through its Secretary, is defendant No. 2. In the written statement filed by the Board through its Secretary the plaint allegations have been denied. In the written statement it is, inter alia, stated that the transmission line was drawn in accordance with the scheme which was duly sanctioned as per the provisions of the E.S Act read with Part III of the Indian Telegraphs Act, 1885 (hereinafter referred to as ‘I.T Act’). Some deviation from the approved scheme had to be made for public safety as a petrol pump was installed on the original alignment by M/s. Khandagiri Service Station and some buildings were constructed in that locality, and the owners thereof did not permit the transmission line to be drawn in accordance with the sanctioned original alignment. It is admitted that the plaintiffs orally, physically and by notice obstructed the drawing up of the transmission line over their land, but the defendants had to take the said transmission line as it exists at present with police help only in the interest of the general public.

    4. The trial court held that the complained-of transmission line passing over the suit land is a deviation from the original alignment and the sanctioned scheme; the said line over the suit land was taken without the consent of the owners or the occupiers of the said land, and the Board's act in this regard was illegale and without jurisdiction. On the above findings, the plaintiffs' prayer for mandatory injunction was decreed and the defendants were directed to remove the electric transmission line over the plaintiffs' land and the poles fixed thereon within 3 months from the date of the decree.

    5. The appellate Court, on a re-assessment of the evidence on record and reconsideration of the relevant law on the subject, has arrived at the findings that Part in of the I.E Act comes into operation only when provision is made in a sanctioned scheme for the placing of any wires, poles etc. for transmission and distribution of electricity, and there is nothing on record to show that provision was made in any sanctioned scheme for fixing of electric poles on and passing the transmission lines over the suit lands. It also finds that the mandatory notice under Section 12 of the I.E Act had not been served on the plaintiffs, who are the persons interested and aggrieved in this matter, and there was no order by the District Magistrate under Section 12 of the (2) of that Act, and so the defendants had no authority to take the transmission line on and over the plaintiffs' land. On the above findings, the court below holds that the defendants' Action in taking the electric line on and over the suit lands belonging to the plaintiffs is illegal and without jurisdiction. Accordingly, the court below confirmed the trial court's decree in favour of the plaintiffs.

    6. The findings of fact of the courts below that the complained-of transmission line on and over the plaintiffs' land was not in accordance with any sanctioned scheme could not be successfully challenged by Mr. Rath, the learned counsel for the appellants. He has, however, submitted that the Board by its resolution dated 20-11-73 accorded ex post facto sanction to the said transmission line over the plaintiffs' land, and that being so, the mandatory injunction ordered by the courts below has to be rescinded and only direction for payment of compensation to the plaintiffs, as provided under Section 10(b) of the I.E Act can be passed in this suit.

    7. An attested copy of the resolution of the Board with a copy of the revised plan and a copy of the Memorandum, allegedly signed by the Secretary of the Board, have been filed in this Court on 14-2-74 along with a petition of the same date for acceptance of the same as additional evidence in this case. This prayer is opposed by the counter to the said petition filed by the respondents on 6-1-77 and by their counsel during the hearing of this appeal.

    8. The above-mentioned copies filed on behalf of the appellants have not been proved in accordance with law. So, if these documents are accepted as additional evidence at this stage then the case has to be remanded to the trial court enabling the appellants to adduce evidence to legally probe the said documents. Moreover, once the said documents are accepted as additional evidence adduced by the defendants, the respondents have to be given opportunity to rebut the same. Apart from that, even if the said documents are accepted as evidence in this case, the appellants cannot thereunder seek the protection available under Section 42 of the E.S Act. The proviso to S. 42 specifically states that where a sanctioned scheme does not make any provision as provided in the first paragraph to that section, all the provisions of Sections 12 to 19 of the I.E Act shall apply to the works of the Board. From that provision it is absolutely clear that so long provision for placing, maintaining or taking any wires, poles and appliances for the transmission and distribution of electricity, as mentioned in para. 1 of S. 42, is not made in that behalf, the powers under Part III of the I.E Act will not be available and the provisions of Sections 12 to 19 of the I.E Act shall apply to the works of the Board. Admittedly, the complained-of electric transmission line over the suit land belonging to the plaintiffs was not in accordance with any sanctioned plan. In the copy of the memorandum attached to the copy of the resolution it is admitted that the complained-of alteration was done by the Superintending Engineer, Electrical Circle, Bhubaneswar and the Board had not accorded any sanction for the said alteration. So the protection under Section 42 of the E.S Act was not available to the defendants-appellants. There is nothing in Section 42 of the E.S Act or in any other relevant law by which it can be said that by the said ex post facto sanction the execution of the said work done in 1968–69 was retrospectively legalised and the said work would therefore be considered as if it was done under a sanctioned scheme. That being so, as per the proviso to Section 42, the provisions of Sections 12 to 19 of the I.E Act would apply to the complained-of transmission line. So, the Board was not at all authorised to take the said transmission line on and over the plaintiffs' suit land, especially in view of their admitted objection and stiff opposition to that effect, without following the relevant provisions of Sections 12 to 19 of the I.E Act.

    9. Moreover, the provisions of Section 10 of the I.E Act cannot be invoked by the appellants as admittedly the construction of the transmission line on and over the suit land was resisted and obstructed by the plaintiffs, and the order of the District Magistrate as contemplated under Section 16(1) of the said Act had not been obtained.

    10. On the above view of the matter and the facts of the case the provisions for payment of compensation under Section 12(3) of the I.E Act and Section 10(b) of the I.T Act for the unauthorised construction of the transmission line on and over the suit land cannot now be invoked.

    11. On the above considerations, even if the documents now filed are accepted as additional evidence, overlooking certain valid grounds on which the acceptance of the same is opposed, that will not improve the appellants' position in respect of the complained-of act, and will not enable this Court to modify or alter the decree passed by the courts below as desired by the learned counsel for the appellants. So acceptance of the said documents in evidence does not serve any purpose in this case. Accordingly the petition for additional evidence is rejected.

    12. Apart from the above legal considerations, in this case the ex post facto sanction was accorded by the defendants only two days before the filing of this second appeal. It is also clear from the memorandum attached to the resolution that this sanction was accorded after more than four years of the completion of the illegal work only to obviate or avoid the effect of the concurrent decision of the courts below and the decree passed in favour of the respondents. The hearing of this appeal was adjourned on several occasions as it was represented at the Bar that there was possibility of an amicable settlement between the parties.

    13. The appellants, on consideration of the frivolity of their stand in this case, should themselves have taken the initiative to settle the matter out of court without taking the risk of a decision of this Court in this second appeal, mainly basing their stand herein on the dubious chance of acceptance of the additional evidence and the legal effect of the same as stated above.

    14. I do not find anymerit in this appeal and it is accordingly dismissed with costs.

    15. Appeal dismissed.

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    Comments

    The Orissa State Electricity Board And Another v. Pyari Mohan Patnaik And Others
    (Apr 7, 1978)