S. Acharya, J.
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.
3. 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.
4. 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.
5. 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 illegal 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.
6. The appellate Court, on a reassessment of the evidence on record andreconsideration of the relevant law onthe subject, has arrived at the findings that Part III 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(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.
7. 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.
8. 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 son 6-1-77 and by their counsel during the hearing of this appeal.
The above-mentioned copies filed on behalf of the appellants have not beenproved 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 Section 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 Section 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 196-8-69 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 Ss. 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 takethe said transmission line on and over the plaintiffs' suit land, especially in view of their admitted objection and stiff opposition to that effect, withoutfollowing the relevant provisions of Sections 12 to 19 of the I.E. Act.
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.
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.
9. 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.
10. 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. 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.
11. I do not find any merit in this appeal and it is accordingly dismissed with costs.