Unnikrishna Kurup, J.
1. The Kerala State Electricity Board, who was the defendant in a suit for a mandatory injunction for the removal of the electric lines drawn over the property of the respondent, is the appellant in this second appeal. The respondent purchased a property, 38 1/2 cents in extent, comprised in Sy. Nos. 1084, 1085 and 1022 in the year 1962 from the previous owner, one Abdulla. The respondent requested the appellant to shift the electric lines, but there was no compliance. The respondent's case was that his predecessor had not given consent to the Electricity Board for laying the lines and the Board was therefore, in law, bound to remove the electric lines. The suit was resisted by the appellant on the ground that the Electricity Board had, under Section 51 of the Indian Electricity Act, 1910 read with the relevant notifications issued thereunder, the power to take the electric lines over the plaint property even though it was a private land and that the appellant was not bound to remove the same. The trial Court on an interpretation of Section 51 of the Indian Electricity Act and Section 10, Proviso (a), of the Indian Telegraph Act, held that the Board had the power to lay an electric line without the consent of the owner of the land only if the electric lines had been established or maintained by the Government and that the respondent was therefore entitled to have the electric lines removed. The Court consequently granted the mandatory injunction prayed for. The Electricity Board appealed, but the Subordinate Judge of Cochin held that the Electricity Board had no authority to draw electric wires over a private property to give electric connection to a private individual. It is against this decision that the present appeal has been filed.
2. Section 10 of the Indian Telegraph Act, 1885 empowers the telegraph authority to place and maintain telegraph lines over, along or across any immovable property provided that it is so done for the purpose of a telegraph established or maintained by the Central Government. By Section 51 of the Indian Electricity Act, 1910, the State Government has been authorised to confer similar powers, by an order in writing, upon any authority, licensee or person engaged in the business of supplying energy to the public. The Section runs as follows:--
'Notwithstanding anything in Sections 12 to 16 (both inclusive) and Sections 18 and 19, the State Government may, by order in writing, for the placing of electric supply-lines, appliances and apparatus for the transmission of energy or for the purpose of telephonic or telegraphic communications necessary for the proper co-ordination of works, confer upon any public officer, licensee or any other person engaged in the business of supplying energy to the Public under this Act subject to such conditions and restrictions (if any) as the State Government may think fit to impose, and to the provisions of the Indian Telegraph Act, 13 of 1885, any of the powers which the telegraph authority possesses under that Act, with respect to the placing of telegraph lines and posts for the purposes of a telegraph established or maintained by the Government or to be so established or maintained.'
It is common case that a notification has been issued by the Government of Kerala dated 6th January, 1960, conferring upon the Chief Engineer, the Additional Chief Engineer (Operation), the Electrical Superintending Engineers and Executive Engineers of the Kerala State Electricity Board to exercise the powers conferred by Section 51 within their respective jurisdictions.
3. On behalf of the Electricity Board, it is urged that the above notification confers on the officers of the Electricity Board sufficient authority to lay electric lines over properties belonging to private persons and no consent of the owner of the land is required for that purpose. The lower Courts have proceeded on the basis that this power can be conferred only in respect of electric lines established or maintained by Government as the proviso (a) to Section 10 of the Indian Telegraph Act specifically lays down that the power conferred can be used only for the purposes of a telegraph established or maintained by the Central Government According to the appellant, the electric line drawn over the respondent's property is being maintained and established by the Electricity Board and the Courts below were wrong in thinking that the line was either established or maintained by the private individual for whose benefit electricity was being supplied. The subject has been discussed elaborately by a Full Bench of this Court in Bharat Plywood & Timber Products Private Ltd. v. Kerala State Electricity Board, 1970 Ker LT 872 = (AIR 1972 Ker 47 FB). There, it is laid down that the power conferred under Section 51 upon any public officer, licensee or any other person is for the purpose of placing electric supply lines, that under the Act if any individual has any objection to the lines being laid across his property, he has to raise objection to the laying of the lines and that the Electricity authorities are then bound to approach the District Magistrate for obtaining permission to lay the lines. It is clear from the provisions in Sub-sections (1) and (2) of Section 16 of the Telegraph Act that the telegraph authority is bound, hi case of resistance or obstruction by the owner of occupier, to resort to the procedure indicated in Sub-section (1) of Section 16. In other words, the authority has to get an order from the District Magistrate before exercising the power so conferred. In this case, the owner of the property had raised no resistance or objection when the lines were laid over this property. It was long after the lines were laid that the res pondent purchased the property from the original owner. There is no justification in his now saying that the lines should not have been laid over the property as the law had permitted him the right to object to the laying of the line.
4. Coming back to the question as to whether the line which supplies electricity to the private consumer is not established or maintained by the Electricity Board, one more contention raised by the respondent's counsel has to be noticed. He sought to contend that the power under Section 51 could be conferred only in respect of electric supply lines as distinguished from service lines, that since the line drawn over the respondent's property was a service line the authority had no power, without the consent of the respondent, to lay the line. This plea has not been raised either in the trial Court or in the lower appellate Court and we are not inclined to permit the respondent to raise this contention now as the point involves questions of fact for which materials are not available in this case. Even otherwise, the definition of service line as given in the Indian Electricity Act, shows that it is an electric supply line through which energy is, or is intended to be, supplied to a consumer or consumers. It would therefore appear that it takes in electric supply line also. This contention of the respondent has also therefore to fail. The Courts below were wrong in holding that the respondent was entitled to a mandatory injunction against the appellant since no consent had been taken from the respondent or his predecessor when the lines were laid.
5. We reverse the decision of the Courts below and dismiss the suit. In the circumstances, we direct both sides to suffer their costs throughout.