Gulab C. Gupta, J.
1. This is defendants' second appeal under Section 100 of the Code of Civil Procedure and is directed against the judgment and decree, dated 20th April, 1983, passed by the Additional Judge to the Court of District Judge, Balaghat in Civil Appeal No. 60-A of 82, affirming the judgment and decree, dated 24-8-1982 passed by Civil Judge, Class II, Waraseoni in Civil Suit No. 7-A/80 and issuing an injunction against the appellants to remove their poles and high tension electric line from the land of the respondent as shown in the plaint map.
2. The respondent Natthoolal filed his suit complaining that the appellants and their officers have unauthorisedly fixed two iron poles over his land and erected 3300 KV high tension line over it without his permission and without the authority of law. His case was that he was the owner and occupier of the land and was intending to build a residential house on it. According to him, though the land, at the present, is used for agricultural purposes, it is fit for Abadi. He had, therefore, put a barbed wire boundary around. According to him, on 18-12-1979 the officers and servants of the appellants illegally and unauthorisedly destroyed a part of the boundary and committed trespass into the land for purposes of putting poles arid drawing high tension electric line. He further asserted that the appellants or their officers did not give any information to him before entering into his land nor did they obtain his consent. According to him, on 18-12-1979 his son met the Divisional Engineer and requested him not to put electric poles over his land. The Divisional Engineer is alleged to have visited the spot on 19-12-1979 and told the respondent that the poles and electric line would be erected as proposed and he was tree to do whatever he wanted. It was, thereafter that the respondent informed the appellant Electricity Board by telegram, Ex. P-5 to desist from putting the poles and drawing the high tension line. Since no one in the appellants did anything to redress his grievance, he filed the present suit praying for the permanent injunction, as aforesaid. The defence of the appellants was that they were not aware that the land belonged to the respondent or that it was suitable for Abadi. They also denied having broken over the fencing and fixed poles. According to them they are statutory corporation and are entitled to fix poles and draw electric lines on and over the private land. The appellants denied having caused any loss to the respondent. The respondent produced oral and documentary evidence in support of his case but the appellants remained satisfied by filing their written-statement only. No oral and documentary evidence was produced by or on their behalf. Indeed, the learned Advocate appearing for them made the statement before, the trial Court on 24-6-1982 that they do not want to adduce any evidence. Learned trial Judge, on appreciation of evidence on record, held that the respondent was the owner of the suit land and the said land was fit for being used as Abadi site. The court further held that on 18-12-1979 the officers and servants of the appellants illegally and unauthorisedly dug two pits over the said land and had erected poles and high tension electric line. The Judge also held that on 19-12-1979, the Divisional Engineer inspected the spot and told the respondent to do whatever he liked and that the poles and line would be erected, as proposed. Learned Judge also found no right whatsoever in favour of appellants to construct the line, as aforesaid. That is how the suit was decreed and permanent injunction granted. The learned lower appellate Court affirmed these findings in appeal and hence this second appeal.
3. The facts of the case disclose not only the executive excesses but also almost a total indifference to the judicial process. The manner in which the appellant's officers and servants entered into the land of the respondent, dug pits, erected poles and drew wire for constructing high tension line indicates that they in an island of their own and not in this democratic social order govern by the rule of law. The manner in which the appellants participated in the proceedings before the trial court indicates that they do not recognize the principle of public accountability and therefore, ignored the process of the Court which wanted them to explain the legality and validity of their action. The appellants also do not seem to have any regard to the legal rights of the citizens of the country or their convenience. This case should, therefore, establish that the appellants and its officers and servants have to be educated in democratic discipline and taught not only the laws but also the mannerism expected of the officers and servants of a statutory corporation, the respect to law and legal rights being the minium of it. Unless the appellants and more particularly the Divisional Engineer representing them, falls within the aforesaid national discipline, both of them would fall out of the national life-stream deserving condemnation not only by this Court but by every other agency of the State.
4. Are the facts of the case so serious as to warrant the aforesaid remarks? Though the judges are made of stern stuff and tough fibres and committed to the core principle of the rule of law, they also have a socio-economic destination and creative function. If there is one principle which runs through the entire fabric of our Constitution, it is the principle of the rule of law and the judiciary under the Constitution is entrusted with the task of keeping every organ of the State within the limits of law, thereby making the rule of law meaningful and effective. This exercise has, no doubt to be done with utmost seriousness and solemnity unaffected by personality of the person before the Court and uninfluenced by any pride and prejudice that the Court may have. Under the circumstances, nothing but the facts of the case should justify the aforesaid remarks.
5. That the appellants have entered into the suit land of which the respondent is the owner and fixed two poles and drawn high tension line over it without the respondent's permission or consent, is now no longer in doubt. Question for consideration, however, is whether the law permits them to do what they have done and in the manner they have done. As far as legal position is concerned, the same does not appear to be in controversy. That the appellants do not have any right to deprive the respondent of his property, save by authority of law is the mandate of Article 300A of the Constitution. Before the insertion of this Article by Fortyfourth Constitutional Amendment Act, 1978, this right was a fundamental right and could not be taken away except by following the provision of Article 31 of the Constitution. Though the right to property has ceased to be a fundamental right, it continues to be a constitutional right and therefore, little more important than a legal right. Under the circumstances, the question that must be asked is which is the law that gives the appellants the authority to deprive the respondent of his property? The case of the appellants appears to be that Section 42 of the Electricity (Supply) Act, 1948 confers upon them all the powers which the telegraphic authority possesses under Part III of the Indian Telegraph Act, 1885 and therefore, their action is legal and justified under Section 10 of the said Act. Though this is not the case pleaded in the written-statement, this Court for that reason alone does not consider it proper to refuse to examine it. Its commitment to the cause of justice, in fact, prevents it from adopting the technical legal attitude which it would have otherwise been justified in adopting because of indifference shown to the judicial process by the officers and servants of the appellants. Section 42 of the Electricity (Supply) Act, 1948 vests in the appellant's Board all powers which telegraph authorities possess under part III of the Indian Telegraph Act, 1885 with regard to a telegraph established or maintained by the Government or to be so established or maintained, only where provision in this behalf is made in a sanctioned scheme. In case where sanctioned scheme does not make such provision, the matter is governed by Sections 12 to 19 of the Indian Electricity Act, 1910. There is, however, nothing on record to indicate that the poles and line were erected in pursuance to a sanctioned scheme or that the said sanctioned scheme had a provision in this behalf. The Orissa State Electricity Board v. Pyari Mohan Patnaik, AIR 1978 Orissa 190. is the authority for the proposition that where transmission lines were placed on and over the private land not in accordance with sanctioned plan, the protection of Section 42 was not available to the Electricity Board. Since this Court has decided to look into the merits of the matter undeterred by faulty pleadings of the appellants, the extent of power conferred by this section may be looked into. For this purpose, reference to Part III of The Indian Telegraph Act, 1885 is necessary. Section 10 of the said Act provides that the telegraph authorities may from time to time, place and maintain telegraph lines under, over, along or across and posts in or upon any immovable property. Read in the context of the appellants, this provision may seem to be authorising the appellants to place and maintain an electric line on and over the immovable property of the respondent. This, however, cannot be read as conferring the absolute right or power in the appellants. In so far as the private property is concerned Clause (d) of this provision is attracted and requires the appellants to do as little damage as possible and also to pay full compensation for the damages. In Bharat Plywood and Timber Products Pvt. Ltd. v. Kerala State Electricity Board, AIR 1972 Kerala 47, a Full Bench of Kerala High Court held that the powers conferred on the authority under Section 10 are conditional upon an order being passed under Section 16(1) of this Act. Section 16(1) provides that if the exercise of powers mentioned in Section 10 in respect of private property is resisted or obstructed, an order from District Magistrate will have to be obtained o permit the authority to exercise those powers. Combined reading of Sections 10 and 16 of the Telegraph Act would, therefore, indicate that the power of the appellant's Board to erect posts and place or maintain an electric line over the property of the respondent is not absolute. Section 16 contemplates resistance or obstruction to exercise of these powers. In case exercise of powers by the authority under Section 10 is resisted or obstructed, an order of the District Magistrate would be necessary for the purpose. The legal position emerging out of combined reading of the two Acts and Sections 10 and 16 of the Telegraph Act is that though the Board is entitled to put posts on and electric lines across the land of the respondent, the respondent may resist and even obstruct the exercise of this power. In case the respondent so resists or obstructs, an order of the District Magistrate would be necessary to permit exercise of powers under Section 10 of the Telegraph Act. The purpose of such a provision is to avoid arbitrariness in exercise of powers and thereby save unnecessary deprivation of property of a citizen. The District Magistrate has been given the discretion to permit the telegraph authority to exercise that power. Since the District Magistrate is required to work as a quasi-judicial authority, it is expected that he will permit exercise of powers only when he is fully satisfied that the same will serve the public purpose inherent in such an exercise. Sub-section (2) of Section 16 further brings out the aforesaid purpose as it requires the owner of the property to give all facilities for exercise of powers pursuant to the order under sub-Section (1) and his refusal to do so makes him liable under Section 188, Indian Penal Code. It is, therefore, clear that once the owner of a property has resisted the exercise of the power under Section 10, the only method of exercising the power would be to obtain an order in this behalf from the District Magistrate under Section 16(1) of the Act and not otherwise.
6. The facts as found by two Courts and which are otherwise obvious from the record of the case are that the officers and servants of the appellants broke open the barbed-wire fencing put by the respondent on the suit land and proceeded to dig pits. They were asked not to do so and told not to fix poles thereupon. Natthoolal as P.W. 1 proved the aforesaid by his statement on oath which remains uncontradicted, even by cross-examination. The Assistant Engineer, however, directed him to meet the Divisional engineer and therefore, his son met the Divisional Engineer. He also deposed that on 19-12-1979 the Divisional Engineer came on the spot and after inspection told him that the poles would be fixed on the place and he should do whatever he liked:--
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The facts further prove that they were telegraphically informed not to do so and yet completed the work. If these facts are considered in the context of above mentioned legal parameters, it would appear that the action of the appellants' officers and servants in fixing poles and drawing electric lines was an act of highhandedness, contrary to the authority conferred upon them by law. In Ghanshyamdas v. M.P. Electricity Board, 1970 MPLJ 588, it has been held that a public authority has no power to invade private property or effect the rights of owners of such property unless the powers are conferred by law, Incidentally, this was also a case against the appellant Board where this Court, on examination had held that the powers under Section 10 of the Telegraph Act alone are not the powers available to the appellant Board under Section 42 of the Electricity Supply Act. But those powers include duties, obligations and remedies provided in Part HI of the Telegraph Act. That was a case where the appellant Board having occupied the property of the petitioner, was resisting his claim for compensation under Section 16(3) of the Telegraph Act. Ghanshyamdas's case (supra) makes this Court feel that though the appellant Board has grown in size and status, the reasonableness of the approach has not grown with it. There is no other explanation of the highhandedness of the action and flagrant disregard of law as is apparent in this case. Under the circumstances, this Court has no hesitation in affirming the conclusions recorded by the Courts below in this behalf.
7. The position would not have been different if the matter was considered under the Electricity Act, 1910 which would be the law applicable if the matter was not covered by a sanctioned scheme. Section 12 of the said Act permits any licensee to lay down or place electricity supply lines and do all other acts necessary for the due supply of energy. Sub-section (2) of this section prohibits laying down or placing electricity supply lines on the property of any owner except with his consent. In case the owner refuses to give such permission, the licensee is required to approach the District Magistrate for an order in writing in that behalf. Since the consent of the respondent was admittedly not taken in the instant case, the appellant should not be entitled to fix poles and construct the line without an order of the District Magistrate.
8. It was, therefore submitted that since execution of the decree would cause dislocation of supply of electricity, it is a fit case where injunction should not have been granted. An injunction is no doubt a discretionary remedy and the discretion in usually not exercised in a manner that may cause inconvenience to the public. Under the circumstances, there appears to be a good case for consideration of this Court. An injunction like the present one, is granted under Section 39 of the Specific Relief Act to prevent the breach of an obligation or to compel performance of acts which the defendant must perform. But where a plaintiff is deprived of his property by outrageous act of the defendant, grant of injunction would be the sound exercise of jurisdiction. Since the appellants have not shown any regard to law, it cannot be held that the Courts below did not exercise their discretion properly. There is, however, another important aspect of the matter which should require consideration in this context. This Court's commitment to justice is not only of justice in accordance with law but social justice as well. Under the circumstances, an order of this Court should not only be just to the plaintiff but also just and proper to the society. Order of removal of poles and electric lines may satisfy the vanity of the respondent but would not give him any real benefit. The appellants can still approach the District Magistrate and obtain an order under Section 16(1) of the Telegraph Act for the purpose If this happens the respondent will only get a temporary relief. After the order of the District Magistrate his claim, if any, would be to compensation in accordance with law. The cost of removal of the poles and the electric line will have to be borne by the appellants which is supported by public funds and would, therefore, be met by the public, who had done no harm to the respondent: The Divisional Engineer who has disregarded the law and acted arbitrarily will not be punished in any manner for his outrageous act. Clearly, therefore, though mandatory injunction would give temporary relief to the respondent, it will not do justice to any one including the respondent. It is not as if justice, as aforesaid, cannot be done in this case. In the opinion of this Court the justice can be done by suspending of the execution of the impugned decree for a period of six months during which the appellants should approach the District Magistrate to obtain an order permitting exercise of the powers under Section 10 of the Telegraph Act. The District Magistrate, before granting or refusing an order will hear the respondent and consider his objections in the context of the fact and circumstances placed before him by the parties, In case, the District Magistrate does not grant an order in favour of the appellants, the decree will been executed. In case the District Magistrate grants an order permitting exercise of power, the decree will not be executed at all. In such a case the appellants will pay without delay the compensation in accordance with law on the assumption that they have been permitted to fix poles etc. on the date of the order of the District Magistrate. This would satisfy the public purpose for which this Court has shown its regard while dispensing justice. This however is not enough as the outrageous act of the Divisional Engineer of the appellant's Board is responsible for respondents being dragged upto this Court in this litigation. The justice would be done if the Divisional Engineer is made personally liable to pay compensation for the inconvenience to the respondent amounting to Rs. 1,000/- (one thousand) together with costs in all the three courts. This compensation and costs shall first be paid by the appellant Board who would be entitled to recover the same from the Divisional Engineer concerned. Since the aforesaid would do justice to all concerned the impugned decree is accordingly modified.
9. Except for the modification aforesaid, the appeal fails and is dismissed with costs. Counsel's fee as per rules.