The Honourable Mr. Justice R.SUBBIAH
Second Appeal No.422 of 2002
1. Tamil Nadu Electricity Board rep.by its
2. The Superintending Engineer,
Tamil Nadu Electricity Board,
Erode Distribution Circle, Erode.
3. The Executive Engineer,
Tamil Nadu Electricity Board,
4. The Assistant Executive Engineer,
Tamil Nadu Electricity Board,
5. The Junior Engineer,
Tamil Nadu Electricity Board,
Second Appeal under section 100 of Civil Procedure Code filed against the judgment and decree dated 05.03.2001 in A.S.No.231 of 2000 on the file of II Additional District Court, Erode, reversing the decree and judgment dated 12.09.2000 in O.S.No.574 of 1999 on the file of I Additional District Munsif Court, Erode. For Appellants : Mr.N.Muthusamy
For Respondent : Mr.S.Kaithamalai Kumaran
The defendants are the appellants, who filed this Second Appeal aggrieved over the decree and judgment dated 05.03.2001 passed by the learned II Additional District Judge, Erode, in A.S.No.231 of 2000, whereby the decree and judgment dated 12.09.2000 passed by the learned I Additional District Munsif, Erode, in O.S.No.574 of 1999, were set aside.
2. The respondent herein filed the suit in O.S.No.574 of 1999 on the file of I Additional District Munsif Court, Erode, against the appellants to grant a permanent injunction restraining them from installing or erecting the transformer abutting the suit properties, stating that the suit properties consisting of a terraced house and shops, absolutely belonged to the respondent/plaintiff by virtue of a partition dated 25.06.1969 among his brothers and on the immediate north of the suit properties, there is a Highway Road called as Sathi Road. The plaintiff is having a right of way on all points on the Highway Road to reach his properties and hence, he is using the said road for his ingress and egress to reach the suit properties. There is a high voltage transformer erected long back in front of the suit properties at a distance of about 10 feet in Sathy road and the same is not a hindrance to anybody. While so, the subordinates of the defendants Electricity Board without any rhyme or reason, made attempts to change the existing transformer and to erect the same immediately on the north of the suit properties and if they do so, there would be a danger to the inmates and users of the suit properties and it would completely block the entry points to the suit properties. Hence, the suit.
3. The said suit was resisted by the Electricity Board stating that a high voltage distribution transformer erected long back in front of the suit properties at a distance of about 18 feet in Sathy Road and due to the increased strength of vehicles and heavy traffic and in order to facilitate the public, the Highways department requested the Board to shift the existing transformer to further 6 feet towards south and hence, 12 feet distance is available and it would not cause any disturbance to the plaintiff or his suit properties. Hence, the suit is liable to be dismissed.
4. On the said pleadings, the trial court framed three issues and on the side of the plaintiff, P.Ws.1 and 2 were examined and Exs.A-1 to A-5 were marked and on the side of the defendants, D.W.1 was examined and Exs.B-1 to B-5 were marked and Exs.C-1 and C-2, the Advocate Commissioner's report and plan were marked. The trial court, on a consideration of the evidence both oral and documentary, had dismissed the suit. Aggrieved by the said judgment, the plaintiff filed A.S.No.231 of 2000 before the II Additional District Judge, Erode, and the appellate court allowed the appeal and reversed the judgment of the trial court by placing reliance on the judgment reported in 1994 (I) L.W.470 (NATARAJAN ..vs.. THURAIYUR MUNICIPALITY, REP.BY ITS EXECUTIVE OFFICER). Being aggrieved by the said judgment, the defendants have filed the present second appeal.
5. At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration:
(1) Whether the Court below is correct in allowing the appeal without hearing the appellant's counsel herein and even in the absence of appellant and appellant's counsel ?
(2) Whether the Court below is correct in allowing the appeal without considering the fact that the proposed shifting of transformer structure is within the norms prescribed under the Indian Electricity Rules, 1956 ?
6. Learned counsel for the appellants/defendants Electricity Board submitted that as on date, there was a distance of 18 feet between the suit properties and the existing transformer. Even if it is shifted, there will be a distance of 12 feet from the suit properties. Therefore, it is incorrect to state that if the transformer is shifted, it will affect the respondent's right of ingress and egress to reach the suit properties. Further, the learned counsel, by relying upon the judgments reported in 2000 (II) CTC 537 and 2001(4) CTC 129, submitted that an injunction cannot be granted based on the apprehension since the public interest prevail over the private interest.
7. Per contra, the learned counsel for the respondent/plaintiff submitted that as per the Commissioner's report Ex.C-2, as on date, there was a distance of 13 feet between the suit properties and the existing transformer and if it will be shifted, there will be a distance of 7 feet only and since it is a high voltage transformer, there would be a danger to the inmates and the users of the suit properties. By considering these facts only, the lower appellate court granted a permanent injunction, which has to be confirmed.
8. Heard the learned counsel for the parties.
9. On going through the materials available on record, I find that the appellants Electricity Board had decided to shift the high voltage transformer in order to widen the Highways road, as requested by the Highways Department since there was a heavy traffic congestion in that place and even if the transformer is shifted, there will be a distance of 12 feet, according to the appellants. Even according to the Advocate Commissioner, there will be a distance of 7 feet and in my view, it will not affect the rights of the respondent. Further, the shifting of the transformer is only on account of the public purpose because the Highways Department had decided to widen the road for smooth flow of traffic. Under such circumstances, the public interest will prevail over the private interest. Hence, an order of injunction cannot be granted in this kind of nature. Even if the respondent feels that there would be a danger to the inmates of the suit properties, he can, at the maximum, only approach the Board officials. In this regard, a reference can be placed upon the decision cited by the appellants in 2000(II)CTC 537 (PHARMASIVAM ..vs.. TAMIL NADU ELECTRICITY BOARD), wherein it has been held as follows: "6. After hearing the counsel on both sides, I do not find any merit in the second appeal. Under Section 12 of the Electricity Act, the Electricity Board has every right to lay down or place electric supply lines without the area of supply, without that area (a) open and break up the soil and pavement of any street; railway or tramway. Electric supply line has been defined under section 2(f). On going by the said provisions the Electricity Board is entitled to place the transformer in a public street, for which no consent is required from a neighbouring property owner. It is not the case of the plaintiffs that the line is drawn along with private property. Their only grievance is that the transformer is going to be placed though in a public place, but the same is in front of their property. I do not think that merely because the transformer happens to be in front of the property the plaintiffs can have any cause of action against the Board. Even in respect of private land, the decision of this court as well as other High Courts are unanimous, where it is held consent need not be obtained".
10. In 200(4) CTC 129 (DURAISAMY NADAR, A.R.A.S. ..vs.. TAMIL NADU ELECTRICITY BOARD), this Court has made an observation as follows:
"3. The plaintiff has a house on the west of north-south National Highway. There is a vacant land between the margin of the road and the plaintiff's property. The plan produced before the Court is also produced before me. The vacant land available between the plaintiff's house and the margin of the road belongs to the Highways Department. In other words, the plaintiff has no claim over that vacant land. In that vacant land transformer had been put up by the Electricity Board. The Courts below on appreciating the materials found that the plaintiff is not entitled to have the relief prayed for. Under Section 42 of the Electricity Supply Act, the Board has got the power for placing any wire, poles etc., for distribution of electricity notwithstanding anything contained under Sections 12 to 16, 18 and 19 of the Indian Electricity Act. In so doing the Board is authorised to exercise all the powers which the Telegraph Authority possess under Part 3 of the Indian Telegraph Act 1985. Reading the provisions given above together, it is clear that the Board's power to install a transformer in respect of a private land is absolute and subject to in so doing they do not cause any damage to the property concerned, and even if damage is likely to be caused to that property, the land owner is only entitled to a compensation. But that is not the situation here since the transformer had been installed in the property belonging to the Highways Department. Installing a transformer is only in the interest of public. On going through the materials available, I am unable to find that the access of the plaintiff to the property is in any way obstructed to or curtailed by the installation of the transformer as indicated in the plan. If the case of the plaintiff that the owner of the property has absolute right to have access to the Highway from every point of the property is accepted, than in that situation, no transformer comes to be installed since necessarily a transformer comes to be installed in front of the property belonging to one or other of the individual.
11. Hence, by following the dictum laid down in the abovesaid judgments and also by considering the fact that the installation of the transformer was only in the interests of the public, and the appellants, being the statutory authorities, are entitled to do a lawful act, I am of the view that the respondent is not entitled to get any injunction against the appellants. The the trial court, upon considering these aspects only, had dismissed the suit, which, in my view, is correct and as such, the substantial questions of law are answered in favour of the appellants. Accordingly, the second appeal is allowed and the decree and judgment of the lower appellate court are set aside and the suit is dismissed and the decree and judgment of the trial court are confirmed. No costs. gl
1) The I Additional District Munsif,
2) The II Additional District Judge,
The Record Keeper,