S.Sivakumar v. TWAD Board

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 23.06.2009CORAM:THE HON'BLE MR. JUSTICE M.DURAISWAMYSecond Appeal No.763 of 20001.S.Sivakumar2.S.Mohan Kumar .. Appellants /Plaintiffs Vs 1.The Assistant Executive Engineer, TWAD Board, 52, Idhyam Complex, Thiruvarur.2.The general Manager, Madras Oil Refiners Ltd., Penamgudi, Nannilam Taluk. .. Respondents /DefendantsSECOND APPEAL filed under Section 100 of the Code of CivilProcedure judgment and decree dated 21.12.1999 made in A.S.No.170 of1999 on the file of Principal Subordinate Judge, Nagapattinamconfirming the Judgment and Decree dated 04.06.1999 passed inO.S.No.296 of 1995 on the file of the District Munsif, Nannilam. For Appellants :Mr.N.ThiagarajanFor Respondents : Mr.Sudarshana Sunder - for R1 Mr.R.Muthukumarasamy Senior Counselfor Mr.A.Jenasenan – for R2J U D G M E N T The above Second Appeal arises against the judgment and decreein A.S.No.170 of 1999 on the file of Principal Subordinate Court,Nagapattinam confirming the Judgment and Decree in O.S.No.296 of1995 on the file of District Munsif Court, Nannilam.2. The plaintiffs in the suit are the appellants in theabove second appeal. The respondents are the defendants in the suit. https://hcservices.ecourts.gov.in/hcservices/

3. The plaintiffs filed O.S.No.296 of 1995 on the file ofDistrict Munsif Court, Nannilam against the defendants formandatory injunction directing the defendants to remove two pipeline laid in the suit property. 4. The brief case of the plaintiffs is as follows:- (i) According to The plaintiffs, they are the owners of 8acres and 23 cents of Nanja lands in R.S.No.61/2. It is cultivablenanja land. According to the plaintiffs, the first defendant isnothing to do with the suit land. In August 1992, the firstdefendant trespassed into the suit land and laid two pipe lines to alength of about 200 feet on the northern side of the land i.e.adjacent to the main road which reached M.R.L. at Vettivalkaivillage and caused heavy damages to the land by digging pits. (ii) According to the plaintiffs, the act of firstdefendant is unlawful and one without consent or knowledge ofplaintiffs. According to the plaintiffs, due to digging of pits andinstalling two pipe lines in the cultivable suit lands, samba cropshave been materially damaged to the tune of Rs.5,000/- in the year1992. Subsequently also, two times, pipe lines broke and causeddamage to the crops. According to the plaintiffs, pipe lines arehindrance for cultivation in the suit field. The plaintiffs issuednotice to the first defendant on 17.9.1992 to remove the pipe linesfrom the suit property. Hence, the plaintiffs filed suit formandatory injunction. 5. The brief case of the first defendant is as follows: (i) According to the first defendant, pipe line water inquestion is running from Sooraur to Narimanam, M/s.Madras RefineriesLimited, Petro Chemical Complex for a distance of 12.6 kms. Thatthere is a pumping station at Sooranur, which gets water from sixbore wells around and on collection of the water at Sooranur, thewater is being pumped by powerful electric motor pumps to NarimanamOil Refinery by pipe line. The supply of water and laying of pipeline etc., was the offspring of an agreement between M/s.MadrasRefineries Limited and the Tamil Nadu Water and Drainage Board (acorporation formed by Government of Tamil Nadu). (ii) According to the first defendant, the work oflaying the pipe line was undertaken by the contractors of the TWADBoard in the month of August 1992 itself. The work undertaken byTWAD Board was on a time bound basis. Keeping the nationalinterest in the mind, the work was done without delay. The trenchwas to a depth of 1.2 metres and a width of about 1.2 meters to alength of about 200 feet. https://hcservices.ecourts.gov.in/hcservices/ (iii) According to the first defendant, the plaintiffsare very much aware of the laying of the pipe line in his field andalso the alignment taken to lay such pipe line. The work was carriedon for nearly 3 days because, the deviation is given much care to betaken and special attention was focussed. (iv) According to the first defendant, even after notice,the plaintiffs kept quiet till the filing of suit in the year 1995.According to the first defendant, by notice dated 20.10.1994, theplaintiff abandoned their claim or right to claim for removal ofpipes and choose to claim only damages caused by leakage. Nodemand has been made for removal of pipes in the notice dated20.10.1994. Therefore, the first defendant prayed for dismissal ofthe suit.6. The case of the second defendant is as follows:According to the second defendant the suit is liable to bedismissed on the ground of delay and laches. According to the seconddefendant, the removal of the pipelines from the suit land willresult in incalculable harm to the defendants. On either side of thesuit land pipelines have bee laid. According to the seconddefendant, he is unnecessary party to the suit. 7. Before the trial court, the plaintiffs examined 4witnesses and marked 15 documents Exs. A1 and A15. On the side ofthe defendants, D.W.1 was examined and no document was marked.Commissioner's report and plans were marked as Exs. C1 to C3 and Exs.C4 and C5 are the report and plan of the Surveyor. 8. The trial court, after taking into consideration theoral and documentary evidences of both the parties, dismissed thesuit on the ground that notice under section 62 of the Tamil NaduWater Supply and Drainage Board Act 1970, was not issued to thedefendants before filing of the suit. 9. Aggrieved by the judgment and degree of the trial court,the plaintiffs filed an appeal in A.S.NO.170 of 1999 on the file ofPrincipal Subordinate Court, Nagapattinam and the lower appellatecourt after taking into consideration the oral and documentaryevidences of both the parties found that notice under Section 62of the Tamil Nadu Water Supply and Drainage Board Act 1970 have beencomplied with. But the lower appellate court dismissed the appeal onthe ground of delay and laches. 10. Aggrieved by the judgment and decree of the courtsbelow, the plaintiffs have filed the above second appeal. https://hcservices.ecourts.gov.in/hcservices/

11. Heard Mr.N.Thiagarajan, learned counsel appearing forthe appellant, Mr.Sundaramurthy, learned counsel for the firstrespondent and Mr.R.Muthu Kumarasamy, senior counsel for the secondthe respondent.12. At the time of admission of the above Second Appeal,the following substantial question of law arose for consideration:- "Whether the Lower Appellate Court is correct indismissing the suit for mandatory injunction on thesole ground that the suit has been filed belatedlyeventhough the lower appellate court held that the suithas been field properly after 60 days from the date ofEx.A10 dated 20.10.1994 as contemplated under section62 of the Tamil Nadu Water Supply and Drainage BoardAct 1970?"13. On a careful consideration of the materials availableon record and the submissions made by respective the learned counsel,it could be seen that a pine line in the appellants'/plaintiffs' landin August 1992. The appellants/ plaintiffs issued Ex.A1 notice dated17.09.1992 to the defendants. Then on 21.07.1994, under Ex.A5, theplaintiffs issued the second notice to the defendants. Again on27.10.1994, under Ex.A10, the plaintiffs issued another notice to thedefendants. On 11.10.1995, the plaintiffs filed the suit inO.S.NO.296 of 1995. Therefore, the notice issued on 21.07.1994,before the filing of the suit on 11.10.1995. Therefore, there is nodoubt that the plaintiffs have complied with the mandatory noticeunder section 62 of the Tamil Nadu Water Supply and Drainage BoardAct 1970. The lower appellate court also rightly found that theplaintiffs have complied with section 62 of the Tamil Nadu WaterSupply and Drainage Board Act notice before the filing the suit on11.10.1995. 14. With regard to the laches and delay, the learnedcounsel for the appellants submitted that since it is a continuouscause, there is no limitation for filing the suit. This submissionmade by the learned counsel for the appellants cannot be accepted forthe reason that the pipe line was laid in August 1992 and immediatelyon 17.9.1992, under Ex.A1, appellants'/plaintiffs issued notice tothe respondents to remove the pipe lines. But they did not choose tofile the suit immediately. The suit was filed only on 11.10.1995i.e. after three years from the date of issuance of Ex.A1 notice.The reason for filing the suit belatedly has not been explained bythe appellants/plaintiffs to accept the contention of thecontinuous cause. https://hcservices.ecourts.gov.in/hcservices/

15. Mr.R.Muthu Kumarasamy, learned senior counsel appearingor the second respondent submitted that the appeal is liable to bedismissed on the ground of laches in filing the suit. In support ofhis submissions, the learned senior counsel relied on judgmentreported in 1993 (1) MLJ 73 (G.S.Ramachar v. The Block developmentOfficer, Kaveripatnam and others), which reads as follows:"The second appeal is taken up for hearing. There isno merit in this appeal. The courts below have declared thetitle of the plaintiffs to the property in question. Butthe lower appellate court has found that the plaintiffs arenot entitled to mandatory injunction in in view of theirconduct in keeping quiet when the respondents 1 to 3 formedthe road. Even before the suit, a notice was issued underEx.A-1, dated 12.12.1972. In that notice, it was statedthat the respondents 1 to 3 were trying to trespass on theproperty and form a road. The respondents 1 to 3 werethreatened with a suit if they failed to comply with thedemand made in the said notice within two months therefrom.Yet the sit was filed only on 30.1.1975. In paragraph 16 ofthe plaint, it is stated that the road was completed by therespondents 1 o 3 from the point 'x' to 'Y'. It is furtherstated that the plaintiffs are entitled to damages at leastat Rs.100 per year from the defendants form December, 1972to December 1974. Thus, there is an admission that the roadwas completed in December, 1972. Therefore, it is clearthat the plaintiffs were guilty of laches. They should havetaken steps even when there was an attempt on the part ofthe defendants to form a road and obtained an injunctionrestraining them from forming the road. Having allowed theauthorities to spend a lot of public money for forming theroad, it is not open to the plaintiffs to ask for mandatoryinjunction. The relief of mandatory injunction isdiscretionary and the lower appellate court has applied thecorrect principles of law in refusing to grant the mandatoryinjunction."From above decision of this court, it could be seen that theplaintiff is not entitled to mandatory injunction when the plaintiffis guilty of laches.16. Further, it could be seen that there is no specificprovision in the limitation Act 1963 which prescribes the period oflimitation for the relief of mandatory injunction to remove aparticular thing like pipe line, etc. Therefore, the case on handwill attract Article 113 of the Limitation Act which reads as follows: https://hcservices.ecourts.gov.in/hcservices/ Description of applicationPeriod oflimitationTime from whichperiod begins torun113. Any suit for which noperiod of limitation isprovided elsewhere in thisschedule.Three yearsWhen the right tosue accrues.In the present case, the appellants/plaintiffs filed the suit formandatory injunction to remove the pipe line. The pipe line was laidin August 1992 and Ex.A1 notice dated 17.9.1992 was issued to therespondents/defendants to remove the pipe line. The appellants filedthe suit only on 11.10.1995 i.e. after three years from the date ofright to sue accrued. Therefore, in view of Article 113 of theLimitation Act, the suit is barred by limitation. 17. Learned senior counsel appearing for the secondrespondent also relied on Section 68 (1) of the Tamil Nadu WaterSupply and Drainage Board Act and it reads as follows:"Power of entry : (1) The Managing Director or anyperson either generally or specially authorized by theManaging Director in this behalf may, with or withoutassistance of workmen enter into or upon any land inorder:-(a) to make any inspection, survey, measurement,valuation or inquiry;b) to take levelsc) to did or bore into the sub-soil;d) to set out boundaries and intended lines of work(e) to mark such levels boundaries and lines byplacing marks and cutting trenches.f) to place and maintain pipes, drains and otherinstallations upon, along, across under any land; org) to do any other thing whenever it is necessary todo so for any of the purposes of this Act or any rule orregulations made or any scheme sanctioned thereunder or anyscheme which the Board intends to frame thereunder.From section 68(1)(f), it could be seen that the first respondent canwith or without the assistance of workmen enter into or upon anyland, in order to place and maintain pipes, drains and otherinstallations upon, along, across under any land.18. Learned senior counsel appearing for the secondrespondent also relied on Section 68 (2) of the Tamil Nadu WaterSupply and Drainage Board Act and it reads as follows: (2) Whenever the Managing Director or a personauthorized under sub-section (1) enters into or upon any https://hcservices.ecourts.gov.in/hcservices/ land in pursuance of that sub-section, he shall,a t thetime of such entry, pay or tender payment for all necessarydamage to be done as aforesaid; and in case of dispute asto the sufficiency of the amount so paid or tendered, heshall at once refer the dispute to the Board, whosedecision shall be final."19. Learned senior counsel appearing for the secondrespondent submitted that the provisions of section 68 of the TamilNadu Water Supply and Drainage Board Act apply to the case on hand. 20. In these circumstances, the suit is liable to bedismissed on the ground of delay and laches. The lower appellatecourt has rightly dismissed the suit on that ground. Further, asalready found the suit is liable to be dismissed on the ground oflimitation. Therefore, I find no ground much less substantialquestions of law to interfere with the judgments and decrees of thecourts below. The above second appeal is liable to be dismissed.Accordingly, the above Second Appeal is dismissed. However, therewill be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarrjTo1.The Principal Subordinate Judge, Nagapattinam.2.The District Munsif, Nannilam. copy toThe Record Keeper, V.R.Section, High Court, Madras.1 cc To Mr.A.Jenasenan, Advocate, SR.25606.1 cc To Mr.N.Thiagarjan, Advocate, SR.25286.1 cc To Mr.Sudharshana Sunder, Advocate, SR.25372.S.A. No.763 of 2000 CU(CO)RVL 08.07.2009