1. This is a plaintiff's appeal. A notice was issued to the plaintiff by a Magistrate under Clause (3) of Section 18 of the Indian Electricity Act, 1910 requiring him to demolish a portion of his building specified at the foot of the plaint. By a suit the plaintiff challenged the validity of the notice and claimed an injunction restraining the defendant from demolishing that portion of the plaintiff's building,
2. The suit was contested on the ground that the notice was. valid and the plaintiff was not entitled to the Injunction claimed by him. A plea about Section 80, C.P. C. was also raised. All the pleas raised by the defendant except two were overruled by the trial Court. It held in favour of the defendant that the notice issued under Section is of the Indian Electricity Act was valid and that an injunction as claimed by the plaintiff could not be granted under Section 56(d) of the Specific Relief Act. On these findings it dismissed the suit.
3. The plaintiff went up in appeal to the Civil Judge. The pleas of the defendant which had been overruled were not pressed in appeal on his behalf. The learned Civil Judge differed from the trial Court about the validity of the notice under Section 18(3) of the Indian Electricity Act and hem that the notice was not valid. He, however, agreed that the function claimed could not be issued in view of Section 56(d) of the Specific Relief Act. In view of the last mentioned finding he dismissed the appeal with costs.
4. The plaintiff has now come up in second appeal and urges that the view of the learned Civil Judge that the suit was barred under Section 56 of the Specific Relief Act is not correct in law. On behalf of the respondent it is contended that the learned Civil Judge was not correct in his opinion that the notice was not valid in view of the provisions of Section 18(3} of the Indian Electricity Act.
5. Two questions therefore arise for decision. The first is whether the notice that was issued was valid or not and the second question is whether the injunction claimed by the plaintiff could be granted to him in spite of Section 58 (d) of the Specific Relief Act.
6. Section 18(3) of the Indian Electricity Act reads thus:
'Where any tree standing or lying near an aerial line, or where any structure or other object which has been placed or has fallen near an aerial line subsequently to the placing of such line, interrupts or interferes with, or is likely to interrupt or interfere with, the conveyance or transmission of energy or the accessibility of any works, a Magistrate of the first class or, in a Presidency town tne Commissioner of Police may, on the application of the licensee, cause the tree, structure, or object to be removed or otherwise dealt with as he thinks fit.'
In the present case the notice to which the plaintiff had objected had been issued by a Magistrate. Both the Courts beiow have found that the structure which was sought to be demolished had been placed near the aerial line subsequent to the placing of the line and interrupted or interfered with the transmission or conveyance of energy. The notice was questioned by the plaintiff only on the ground that the Magistrate could have issued it only if an application was made by a licensee. In the present case it was contended that no application was made by any licensee because there was no licensee at all as content plated by the Act.
7. Two grounds were taken in support of the contention that there was no licensee who made the application. One was that in view of the definition of the word 'licensee' as given in Clause (h) of Section 2 of the Indian Electricity Act only that person could be a licensee who had been licensea under Part II of the Act to supply energy. In the present case it was pointed out there was no licensee at all because the electric energy was being supplied by the department ot the Government itself. It was argued that the definition contemplated two different persons as licensor and licensee. The Government was a licensor and its own department could not therefore be licensee. The other argument was that even if it was conceded for the sake of argument that a department of the Government could be treated as a separate entity or person to whom a licence could be given, there was nothing to show that licence was given to It under Part II of the Act. In either case, therefore, the, department was not a licensee at whose instance the Magistrate could issue the notice in question.
8. It is true that the Indian Electricity Act appears to contemplate the grant of license by the Government to another person but a department of the Government may itself be treated to be the person to whom a licence can be given. In Kalyan Singh v. State of U. P., AIR 1962 sc 1183, a distinction was recognised between the State Government and a department of the State Government providing road transport services and it was held that that department could be treated as State Transport undertaking. On parity of reasoning the State department carrying one the work of supply of electric energy could be treated as a separate entity to whom licence for the supply could be granted by the Government but before the department could become a licensee it was necessary that a licence should have been granted to it under Part 11 of the Act. No material was produced on behalf of the defendant to show that such a licence was issued by the Government to its own department under that Act, The department could not therefore be treated as a licensee as defined under Clause. (h) of Section 2 of the Act and if the department was not a licensee it could not make an application under Section 18(3). Even iT it made an application no notice could be issued on that application.
9. Learned counsel for the respondent drew my attention to Section 51-A of the Indian Electricity Act. The respondent cannot however get advantage of that provision because it was introduced much later and does not appear to have retrospective effect. The learned Civil Judge thus appears to be correct in his view that the notice issued was not a valid notice.
10. If the notice was not a valid notice, on its basis the disputed constructions could not be demolished, and the plaintiff was entitled to the injunction restraining the defendant from demolishing it. Section 56(d) of the Specific Relief Act could not bar the suit and prevent the injunction being issued because it cannot be said to be a public duty of any department of the Government to demolish the constructions of a citizen except as provided under the law. Even granting for the sake of argument that the constructions were unauthorised and were liable to be demolished they could only be demolished under the provision of law after issue of a valid notice. Without a valid notice the demolition of the constructions could not be said to be a public duty. The dismissal of the suit was therefore not justified. The appeal succeeds and the plaintiff's suit for the injunction claimed is decreed. This would, however, not affect the respondent's right if any to proceed against the constructions in dispute in accordance with the law as it now stands.
11. The appellant will get his costs from the respondent in all the Courts.