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Jamini Mohan Acherjee Vs. Santosh Kumar Roy - Court Judgment

LegalCrystal Citation
Subject;Electricity;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 1 of 1981
Judge
ActsElectricity Act, 1910 - Sections 12(2)
AppellantJamini Mohan Acherjee
RespondentSantosh Kumar Roy
Appellant AdvocateP.M. Palit, Adv.
Respondent AdvocateM.C. Deb Roy, Adv.
DispositionApplication dismissed
Excerpt:
- - on the contrary, it is submitted, an interference with the order at this stage will cause serious injury to the plaintiff-respondent who will be deprived of the basic civic amenity like electricity......by no stretch of imagination it could be said that the plaintiff was an occupier of 'b' schedule land in view of the fact that it was not in his exclusive possession and it was merely a path over which he had no other right except that of passage. whatever that may be it is necessary to deal with the objection of the defendant on this score which is grounded on the fact that he was the 'owner' of schedule 'b' land and, there-fere, the 'electric line' could not be drawn across that land without his consent. this objection, in my opinion, has no legal force in view of the fact that the term 'owner' mentioned in section 12(2) comprehends a person who has all rights and incidences of ownership of the property. in other words, such person must have full control and dominion and sole right.....
Judgment:

1. This revision petition is directed against an order passed on 4-10-1980 by the learned Sadar Munsiff, Agar-tala, in Title Suit No. 73 of 1978. By the impugned order the learned Munsiff in-juncted the defendant-petitioner not to obstruct the plaintiff-respondent from taking eleclric connection to his house situated on Schedule 'A' land of the plaint by taking the electric lines over the Schedule 'B' land. This order was passed on an application

filed under Section 151, C. P. G. by- the plaintiff-respondent in which it was, inter alia, mentioned that the plaintiff had got permission for electric connection in his homestead and that there was no other way to take the electric lines except by drawing them over the Schedule 'B' land. It was further staled in the petition that the defendant-petitioner filed an objection before the S. D. O., Electric Division, whereupon work of carrying oui the electrical installation was stayed. The plaintiff-respondent in the same application also alluded to his easement right in respect of Schedule 'B' land, as per condition incorporaled in the sale deed by which the plaintiff-respondent purchased Schedule 'A' land from the defendant-petitioner.

2. In this connection, a brief reference may be made to the case of plaintiff-respondent as made out in the plaint. The suit was filed by the plaintiff-respondent on 6-7-1978 for a declaration of easement right of way by grant and of necessity and for perpetual injunction against the defendant-petitioner. In the same suit, an application for temporary injunction was also filed which was granted on 30-8-1978 and confirmed in appeal on 30-1-1979. In terms of the said injunction the defendant was restrained, inter alia, from causing any disturbance in plaintiff's easement right of peaceful user of pathway of Schedule 'B' land,

3. Tn this application, Mr. Palit has raised the following contentions before me in assailing the order passed on 4-10-1980.

(1) The learned Munsiff had no jurisdiction to grant injunction under Section 151, C. P. C. on the petition filed thereunder by the plaintiff-respondent. The petition filed on 11-9-1979 did not make out a case for grant of injunction under Order 39, Rule 1, C. P. C.

(2) In passing the impugned order of injunction he also acted illegally and with material irregularity by ignoring the provisions of Section 12(2) of the Electricity Act.

4. Mr. Deb Boy who opposes the application has submitted in the forefront of his argument the fact that the petition had become infructuous as a result of the electrical installation work having been already carried out by the Electrical Department on 17-3-1981 as will be revealed from the counter-objection filed by him in this case which

is duly-supported by, an affidavit. In this connection he has drawn my attention to the fact that when the rule nisi was issued on this petition by this Court on 3-3-1981, it refused ad interim stay, to the petitioner. It is further submitted by him that in any event in view of the proviso to Section 115, C. P. C. this Court shall not interfere with the impugned order inasmuch as the defendant-petitioner has not made out any case to the effect that if the order is allowed to stand it would cause him irreparable injury. On the contrary, it is submitted, an interference with the order at this stage will cause serious injury to the plaintiff-respondent who will be deprived of the basic civic amenity like electricity. Mr. Deb Roy has further drawn my attention to Sections 4 and 13 (a) and (e) of the Easements Act, 1882, and to the statements made in the plaint as respects claim being grounded therein on easement of necessity. He has further submitted before me that the impugned order is neither violative of Section 151, C. P. C. nor of Section 12(2) of the Electrfcity Act.

5. In my opinion, it is not necessary for the disposal of this application to give any decision on the interpretation of the provisions of the Easements Act in view of the fact that that will be pre-empting the final decision in the suit and also in view of the fact that the only objection which the defendant-petitioner has raised in his application before this Court relates only to the provisions of the Electricity Act and the same objection he had also raised before the learned Munsiff. It is true, and Mr. Palit rightly draws my attention to the observation in this respect made in the order, that the finding of the learned Munsiff to the effect that defendant granted a perpetual right of easement unconditionally in favour of the plaintiff is not warranted because that finding should await the outcome of the suit.

6. I may now refer to the relevant provisions of Section 12(2) of the Electricity Act which is the bone of contention in these proceedings. The provision is as follows :

'Nothing contained in Sub-section (1) shall be deemed to authorize or empower a licensee, without the consent of the local authority or of the owner or occupier concerned, as the case may be, to lay down or place any electric supply-

line or other work in, through or against any building, or on, over or under any land not dedicated to public use, where-on, wherever or whereunder any, electric supply-line or work has not already been lawfully laid down or placed toy such licensee.'

In dealing with the objection of the defendant on this score the learned Munsiff held that as the plaintiff was an 'occupier' of 'B' Schedule land it was not necessary that consent of the 'owner' of the said land should be obtained. Apparently the learned Munsiff did not apply his mind to the provisions and his finding on the point of in applicability of Section 12(2) on that basis is not tenable in law. It was nobody's case that the plaintiff was an occupier of Schedule 'B' land. On the contrary, plaintiff's own case was that it was a free passage over which he had the right of ingress and egress which was granted to him under the sale deed. By no stretch of imagination it could be said that the plaintiff was an occupier of 'B' Schedule land in view of the fact that it was not in his exclusive possession and it was merely a path over which he had no other right except that of passage. Whatever that may be it is necessary to deal with the objection of the defendant on this score which is grounded on the fact that he was the 'owner' of Schedule 'B' land and, there-fere, the 'electric line' could not be drawn across that land without his consent. This objection, in my opinion, has no legal force in view of the fact that the term 'owner' mentioned in Section 12(2) comprehends a person who has all rights and incidences of ownership of the property. In other words, such person must have full control and dominion and sole right to deal with the property in any manner that suited him includ-ing the right to possess and the right to transfer the same. The following definition of the word 'owner' may be usefully noted in view particularly of the fact that the term has not been defined in the Act.

'Ownership consists of innumerable rights over property, for example, the rights of exclusive enjoyment, of destruction, alteration, and alienation, and of maintaining and recovering possession of the property from all other persons. Such rights are conceived not as separately existing, but as merged in one general right oi ownership,'

(See Butterworth's Words and Phrases Legally Denned. Second Edition, Vol. 4, page 61).

In this case the defendant apparently had divested himself of certain incidences of ownership by the condition incorporated in the sale deed made in favour of the plaintiff-respondent. It is true that by the grant the plaintiff apparently acquired a right of user over Schedule 'B' land but the material fact to be considered in this case is that thereby the defendant-petitioner deprived himself of the user of the air space over the said land. Thus not being owner of the air space over the land across which the electric supply-line could be drawn he had no right under Section 12(2) to insist that the said work of electrical installation could not be undertaken without his consent. In this connection Mr. Palit has drawn my attention to a decision reported in AIR 1929 Lah 226 (Jit Singh v. Gujranwala Electric Supply Co.).

It was held in that case that whoever owns the site is the owner of everything up to the sky and, therefore, such person can object to the laying of electric wire on his land under Section 12 of the Electricity Act. In my opinion, reliance on this decision is misplaced in view of the fact that in this case, as I have pointed out above, the defendant-petitioner could not, in the circumstances of this case because of the grant made by him in favour of the plaintiff-respondent, be said to be the 'owner' within the mean-i ing of Section 12(2) of the Aet

7. The other objection of Mr. Palit as respects jurisdiction of the Munsiff to grant the injunction under Section 151 is equally without substance in my opinion. In Manohar Lal v. Seth Hira Lal, AIR 1962 SC 527, it was held that in circumstances not covered by Order 39, C. P. C. Courts have inherent power to issue temporary injunction. The facts of the case as set out above leave no room for the doubt that an injunction in terms of Order 39, Rule 1, C. P. C. could not possibly be granted in view of the provisions of Section 12(2) of the Electricity Act, That apart, it cannot be said that the application filed on 11-9-1979 did not make out a case for grant of injunction under Order 39, Rule 1 as contended before me by Mr. Palit. It is true that the plaintiff-respondent had put a label (Section 151, C. P. C.) on his application but it is the substance of the matter

which the Court will take into consideration and the label given by the party will never be decisive of the matter.

8. Thus I find that the objections of Mr. Palit on merit do not carry much weight. However, the most material consideration that weighs with me in disposing of this application is the fact that the objection of Mr. Deb Roy founded on the proviso to Section 115, C. P. C. must prevail. Indeed, Mr. Palit fairly conceded that it is difficult for him to point out to any circumstance to show that it will cause him irreparable injury if the impugned order is allowed to stand. His main apprehension is about the scope of easement right claimed by the plaintiff-respondent which, according to him, may get enlarged as a result of the temporary injunction by which he will get the' right not only of way over Schedule 'B' land but also of taking across it electric lines. Suffice it to say that this misapprehension is ill-founded because in these proceedings the sc(r)pe of the easement right claimed in the suit is not being adjudicated.

9. In view of the foregoing discussions, I find, no merit in this application and it is accordingly dismissed. The rule is discharged but in the circumstances of the case I make no order as to costs.


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