Vadivelu & Ors. v. Vadivelu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 16.06.2009CORAM:THE HON'BLE MR. JUSTICE M.DURAISWAMYSecond Appeal No.1100 of 20001.The Superintending Engineer, Tamil Nadu Electricity Board, Salem.

Th Executive Engineer, Tamil Nadu Electricity Board, Rajaram Nagar, Opp. Tamil Sangam, Salem.

The Asst. Exe. Engineer/C & I, Tamil Nadu Electricity Board, Sooramangalam, Salem,.

The Asst. Exe. Engineer (O & M), 110, K.V. Sub station, Tamil Nadu Electricity Board, Elampillai, Vembadithalam. .. Appellants /Defendants Vs 1. Vadivelu2.Bavayee .. Respondents/PlaintiffsSECOND APPEAL filed under Section 100 of the Code of CivilProcedure judgment and decree dated 25.01.2000 made in A.S.No.33 of1996 on the file of Sub-Court, Sankagiri confirming the Judgmentand Decree dated 29.11.1995 made in in O.S.No.237 of 1993 on the fileof District Munsif court, Sankagiri. For Appellants: Mr.N.MuthuswamyFor Respondents : Mr.T.L.Thirumalaisamy forM/s.Sarvabhauman AssociatesJ U D G M E N T The above Second Appeal arises against the judgment and decreein A.S.No.33 of 1996 on the file of Subordinate Court, Sankagiriconfirming the Judgment and Decree in O.S.No.237 of 1993 on thefile of District Munsif Court, Sankagiri. https://hcservices.ecourts.gov.in/hcservices/

2. The defendants in the suit are the appellants in the abovesecond appeal. The respondents are the plaintiffs in the suit. Theplaintiffs filed O.S.No.237 of 1993 against the defendants for thefollowing reliefs: (a) Pass a Decree for permanent injunction in favour of theplaintiff and against the defendants; (b) restraining the defendants and their subordinates from in anyway erecting or putting any new Electricity poles and laying newwires and giving any new connections in the existing pole in suitproperties or in the alternative; (C) directing the defendants to put new poles in front of thes. No.62/1, 68/1 and 68/2 and connecting some other poles out ofsuit properties. Through the courses shown as AOBCF and GHIJ in theplaint rough plan No.2 ;(C1) Grant a permanent mandatory injunction directing thedefendants to remove the poles and wire drawn in S.Nos.678/1 and68/2 failing which making provisions for executing the permanentmandatory decree; (d) awarding the cost of this suit.3.

The brief facts of the case of the plaintiffs in the suit areas follows: - (i) The second plaintiff is the wife of the firstplaintiff. The suit properties belong to the plaintiffs. Theplaintiffs are in possession and enjoyment of the suit properties. (ii) According to the plaintiffs, there is a pakka metalroad running North to South which starts from Salem Main Road andreaches Elampillai. On the eastern side of the metal road, there isa Tamil Nadu Electricity Board 110/K.V. sub station. To show thetopography of the sub station, plaintiffs filed a rough plan. On thenorthern side of the sub station, there is one land belonging to Palaniappa Gounder and Panchayat Road and then first plaintiff'sland. The defendants installed three poles in S.No.62/1 belongingto the first plaintiff and the defendants tried to put extra twoor three poles in the said land, when there is no necessity to erectnew poles.

The defendants also erected poles in the road poramboke. The defendants without erecting new poles in S.No.62/1, could haveerected the poles in road poramboke. Similarly, the defendants triedto erect two or three extra electricity poles in S.NO.68/1 and68/2. belonging to the second plaintiff. The plaintiffs proposed tostart small scale industries and houses in the suit property. If thedefendants erect extra poles in the suit property, the plaintiffs https://hcservices.ecourts.gov.in/hcservices/ cannot plough the land and the lands cannot be used for agriculturalpurposes. (iii) According to the plaintiffs, the defendants can erect polesin the road poramboke. Therefore, plaintiffs represented the matterto the defendants in person. But the defendants did not heed to thewords of the plaintiffs. Hence, the plaintiffs have sent arepresentation to the defendants. In spite of the representationsent by the plaintiffs, defendants tried to erect new poles in thesuit property.

On the west of S.NO.62/1, poramboke land situate. Similarly, on the west and north of S.Nos. 68/1 and 68/2, porambokelands situate. According to the plaintiffs, if the pole is erectedand wire is drawn in the said poramboke land nobody will beaffected. According to the plaintiffs, after the filing of the suit, the defendants tried to erect new poles in S.Nos.68/1 and 68/2 byputting up poles and laying new wires in the said survey numbers. Therefore, the plaintiffs filed the suit.4. The case of the defendants is as follows: (i) According to the defendants, the Tamil Nadu Electricity Boardhas taken all steps to improve the voltage and supply conditionsurrounding the area where the substation has been erected. According to the defendants, the erection of 10 M.V.A. PowerTransformer and other substation works have been completed and thesupply has been commenced in the second week of October 1993. (ii) According to the defendants, existing 22 KV line comes from Salem 230 KV substation running through the suit property for thepast more than 30 years.

According to the defendants, all theworks were completed except erection of two poles and givingconnection in the existing lines. According to the defendants, the Tamil Nadu Electricity Board has got powers for placing lines, polesetc., in any land under section 42 of Indian Electricity (Supply)Act 1948 and under Section 51 of the Indian Electricity Act 1910.Therefore, the defendants prayed for dismissal of the suit.

Before the trial court, the first plaintiff was examinedas P.W.1 and 8 documents Exs.A-1 to A-8 were marked. On the sideof the defendants, D.W.-1 was examined and Exs.B-1 & B-2 weremarked.

The trial court, after considering the oral and documentaryevidence of both the parties, decreed the suit as prayed for.

Aggrieved over the judgment and degree of the trial court, the defendants filed A.S.No.33 of 1996 on the file of Sub Court, Sankagiri and the lower appellate court after taking intoconsideration the materials available on record, confirmed thejudgment and decree of the trial court and dismissed the appeal. https://hcservices.ecourts.gov.in/hcservices/

Aggrieved over the judgment and decree of the courtsbelow, the defendants had filed the above second appeal.

Heard Mr.N.Muthuswamy, learned counsel for theappellants and Mr.T.L.Thirumalaisamy, for the respondents.

At the time of admission, the following substantialquestions of law arose for consideration in the above SecondAppeal:-" Under section 42 of the Indian ElectricitySupply Act, 1948 and section 16 of the Indian TelegraphAct, 1885, have not the appellants an absolute right toproceed with the implementation of the work coveredunder the sanctioned scheme, subject however to theliability to compensation alone if established ? "

The learned counsel appearing for the appellants contendedthat already 22 KV power line has been drawn on the poles erected asper the sanctioned scheme 110KV-22 KV Elampillai sub station inorder to improve the supply in that area. Therefore, the courtsbelow ought not have granted decree in favour of the respondents. The learned counsel further contended that if at all, any objectionsare there, the plaintiffs are entitled only for compensation. Thelearned counsel also contended that the electricity poles have beenerected as per the provisions of the section 51 of the IndianElectricity Act 1910 and section 42 of Indian Electricity (Supply)Act 1948. The learned counsel also contended that the erection ofthe poles are only in the interest of public.

The learned counsel for the appellants relied on the Judgment reported in 1999(II)CTC 614 (TNEB Basin Bridge Power Housev. Thangaprakasam), which reads as follows: "Telegraph Act, 1995, Section 10 – Electricity SupplyAct, 1948, Section 42 – Electricity act, 1910, Sections 12 o16, 18, 19 – Power of Electricity Board install posts, towerfor carrying high tension wires – Board is entitled to claimright of user over property not belonging to them of abovepurpose – Section 10 of Electricity Supply Act empowerselectricity Board to place and maintain telegraph line ;under, over, along or across and posts in or upon andimmovable property – Such power to be exercised only forpurpose of telegraph established or maintained by authorityand right of Board is only user of such property and Boardshall pay Full compensation to all persons interested forany damages sustained by them by reasons of exercise ofpowers Board – Individual owning land where Board proceededwith work of constructing concrete bases for installing highposts to draw high tension wire, cannot seek injunctionrestraining Board form doing so long as it is done inaccordance with provisions of act and sanctioned scheme – https://hcservices.ecourts.gov.in/hcservices/ Such individual can claim damages alone if any sustained bythem. "

Countering the submissions made by the learned counsel forthe appellants, the learned counsel for the respondents submittedthat the findings of the courts below are just and proper and theappellants have discriminated the respondents by not erecting anypoles in the adjacent land. The learned counsel further submittedthat the appellants by erecting poles out side the respondents' landi.e., in the poramboke land, nobody will be affected or prejudiced.

On considering the submissions made by both the learnedcounsel, it could be seen that the appellants had discriminated thedefendants from the adjacent land owners. When the appellants hadchosen to erect the poles in the poramboke land adjacent to therespondents' land, the necessity for erecting the pole inside therespondents/plaintiffs land is not known. Merely because, theappellants/Board have powers to erect poles in any land undersection 42 of Indian Electricity (Supply) Act 1948 and under Section51 of the Indian Electricity Act 1910, it does not mean that theycan discriminate the land owners. In the present case, theaffected and aggrieved parties are the respondents.

Further, when the poramboke land is available for erectingpoles adjacent to the respondents land, the appellants could haveerected the poles in the said poramboke land without affecting therespondents.

The learned counsel for the respondents relied on the Judgment reported in AIR 1989 DEL 51 (Surat Singh v. Delhi MunicipalCorpn.), which reads as follows: "A bare reading of C1.(d) of S.10 read with S.16 ofthe Telegraph act would show that DESU has not gotunrestricted powers o fix electric poles or to instaloverhead lines over the land of any person when there isresistance or obstruction by that person. Sub-sec. (1) ofS.16 provides that if in the exercise of powers conferredby C1.(d) of S.10, there is any resistance or obstruction, th District Magistrate may in his discretion order hat thetelegraph authority shall be permitted to exercise thosepowers. It is obvious therefore, that before passing anysuch order in the District Magistrate will give hearing tothe person so resisting or obstructing the telegraphauthority in the exercise of its powers. It is only afterpassing of the order by the District Magistrate if theperson resists the exercise of powers by the telegraphauthority or does not give all the facilities for theexercise of those orders when that person had control overthe property, he is deemed to have committed an offenceunder S.188 of the Penal Code. This S.188 of the Penal https://hcservices.ecourts.gov.in/hcservices/ Code provides for punishment for disobedience to order dulypromulgated by a public servant. Under sub sec. (3) o S.16of the telegraph act a dispute concerning the sufficiencyof the compensation to be paid under C1.(d) of S.10 has tobe determined by District Judge by referring the dispute tohim by either o the parties. Further, it may be noted thatthe notification dated 19.1.4 aforementioned and o whichreference was made as well by the lower appellate court, confers powers on the licensee only and confers no powerson any public officer or any other person engaged in thesupply o energy to public under the Electricity act. Noother provision of law or any other notification has beebrought to my notice in support of the contention that DESUauthorities have right to fix electricity poles in privateproperty whenever and wherever they so wanted. "

Even in the present case, though the respondents had objectedto the erection of the poles, the appellants did not obtain any priororder from the concerned authorities.