This second appeal has been filed challenging the judgment and decree, dated 3.9.1993, made in A.S.No.7 of 1993, on the file of the Subordinate Judge, Thirupattur, confirming the judgment and decree, dated 5.11.1992, made in O.S.No.45 of 1986, on the file of the District Munsif Court, Thirupattur.
2. The plaintiff in the suit, in O.S.No.45 of 1986, is the appellant in the present second appeal. The plaintiff had filed the suit against the defendants praying for a mandatory injunction to direct the defendants therein to remove the electrical poles, erected for installing a transformer, and the other connected equipments.
3. The plaintiff had stated that the suit property belongs to her. On the eastern side of the property of the plaintiff, which has an extent of 4.60 acres, in survey No.90/1A, there is a road belonging to the Municipality. On the eastern side of the Sanankkuppam Road, the defendants had established a transformer. The said transformer had been situated for nearly 10 years. Recently, the Highways Department had laid a road across the plaintiff's land. Therefore, the defendants had to remove the transformer. The defendants had dug up holes near the path leading to the samadhi of the ancestors of the plaintiff and near the Temple and the house, which were to be built. The defendants were trying to erect the transformer near the samadhi of the plaintiff's ancestors. The erection of the transformer at that place would block the entrance of the Temple and it would also be dangerous to the people using the area. On the southern side of the place, where the defendants are proposing to erect the transformer, there is a vacant space. If the transformer is erected in the said place, it would not cause any harm to any one. In such circumstances, the plaintiff had filed the suit in O.S.No.45 of 1986, before the District Munsif Court, Thirupattur.
4. The written statement filed on behalf of the third defendant had been adopted by the first and second defendants.
5. In the written statement filed by the third defendant, it has been stated that the suit has been instituted by the plaintiff with an ulterior motive. It has been filed in order to harass the defendants. The said suit is not maintainable, either in law or on facts. Pursuant to the request of Highways Department, the defendants had shifted the transformer to a different place. Since there are other electrical poles, which have already been put up, the transformer had to be erected on the western side of the road. By such erection, no harm would be done to the plaintiff or to her property. The suit is prohibited by
section 82 of the Indian Electricity Supply Act. As such, the suit filed by the plaintiff is devoid of merits and therefore, it is liable to be dismissed.
6. In view of the averments made on behalf of the plaintiff, as well as the defendants, the trial Court had framed the following issues for consideration:
"1) Whether the plaintiff is entitled to the relief of mandatory injunction, as prayed for in the suit?
2) what other reliefs?"
7. On analysing the evidence on record, the trial Court had come to the conclusion that the defendants in the suit are having the power to erect the transformer at the place in which it is proposed to be erected, in accordance with the provisions of the Indian Telegraph Act and the Indian Electricity Supply Act. further, the erection of the transformer is for a public purpose and shifting it to another place would cause the Electricity department a sum of 25,000/-, as expenses. Further, the decision to erect the transformer had been taken after proper planning by the experts in engineering and after analysing all the relevant aspects. If the reliefs, as prayed for by the plaintiff, are granted, it would cause heavy loss and serious damage to the scheme of the defendants, which is meant for a public purpose. It would also adversely affect the national interest, with regard to the production and supply of electricity. Accordingly, the trial Court had dismissed the suit of the plaintiff.
8. Aggrieved by the judgment and decree of the trial Court, dated 5.11.1992, made in O.S.No.45 of 1986, the plaintiff had preferred a first appeal, on the file of the Subordinate Court, Thirupattur, in A.S.NO.7 of 1993. The first appellate Court had framed the following points for consideration:
"1. Whether the appellant/plaintiff is entitled to the relief of mandatory injunction?
2. Whether the suit is barred under
Section 82 of the Indian Electricity Supply Act?"
9. While Answering the points arising for consideration, the first appellate Court had confirmed the judgment and decree of the trial Court, by its judgment and decree, dated 3.9.1993, made in A.S.No.7 of 1993. The first appellate Court had held that there was no bar under
Section 82 of the Indian Electricity Supply Act to file the suit. However, the appellant in the first appeal is not entitled to the relief sought for by her, since the project for supplying the electricity, by erecting the transformer and by drawing the electrical lines, is for a public purpose and that such schemes are planned and executed by experts in the concerned field. Further, if some inconvenience or loss is caused, due to the implementation of such schemes and projects, the concerned persons could be compensated for the losses caused, in accordance with the procedures established by law. For the said reasons, the first appellate Court had dismissed the first appeal filed by the appellant, in A.S.No.7 of 1993, by its judgment and decree, dated 3.9.1993.
10. Challenging the judgment and decree of the first appellate Court, dated 3.9.1993, made in A.S.No.7 of 1993, the appellant in the first appeal had filed the present second appeal before this Court, in S.A.No.1292 of 1995.
11. The second appeal had been admitted on the following substantial question of law:
"Whether the appellant/plaintiff is entitled to a decree for mandatory injunction directing the Electricity Department to remove the transformer installed in front of the house of the appellant/plaintiff and to re-place the same in some other place?"
12. The appellant had filed the second appeal stating that the judgment and decree of the trial Court, as well as the first appellate court, are vitiated due to the non- consideration of the evidence in favour of the appellant, who was the plaintiff in the suit. The courts below had not properly appreciated the report of the Commissioner, in which it was suggested that the transformer could be installed in an alternative site, without any hindrance being caused to the appellant. The courts below had not considered the hardship, that would be caused to the appellant in enjoying her property, due to the erection of the transformer close to her newly constructed house. Further, the Courts below had not considered the fact that the transformer was proposed to be erected close to the samadhi of the plaintiff's ancestors. Even though there was ample space for erecting the transformer on the southern side of the proposed site, the Courts below had not considered such an alternative. The cost of Rs.25,000/-, that would be incurred by the Electricity Department to re-locate the transformer, had been given undue weightage by the courts below. Even though the report of the Commissioner had clearly stated that the erecting of the transformer would cause danger to the use of her property by the appellant, the courts below had chosen to ignore the said report.
13. On behalf of the respondents, it has been stated that the findings of the Courts below are in accordance with the facts and circumstances of the case. The erection of the transformer by the defendants is in accordance with the powers vested in them by the provisions of the Indian Telegraph Act, and the Indian Electricity Supply Act, and the other relevant provisions of law. Since the project is meant for a public purpose and as the scheme has been proposed by experts in the field, all relevant factors had been taken into consideration before the erection of the transformers and the drawing of the electrical lines. If any loss had been caused to the appellant, she could make a claim for payment of compensation, in accordance with the procedures established by law.
14. In view of the averments made on behalf of the appellant, as well as the respondents and on a perusal of the records available, this Court is of the considered view that no case has been made out by the appellant to interfere with the concurrent findings of the Courts below.
15. As has been stated by the trial Court, as well as the first appellate Court, the erection of the transformer and the drawing of electricity lines forms part of a project meant for public purpose. The appellant has not been in a position to show that a substantial loss had been caused to her due to the installation of the transformer adjacent to her property. Even otherwise, it would be open to the appellant to make a claim for compensation against the respondents, in accordance with the procedures established by law. Since the respondents are empowered to erect the transformer and to draw electrical lines across private properties, in accordance with the relevant provisions of law, the appellant is not entitled to a mandatory injunction, as prayed for by her. Further, from the contentions raised by the learned counsels appearing for the parties concerned, this Court is not convinced that substantial questions of law have arisen for consideration in the present second appeal, in view of the decision of the Supreme Court reported in GURDEV KAUR AND OTHERS Vs. KAKI AND OTHERS (2007 (1) CTC 334).
16. In such view of the matter, the judgment and decree of the Courts below are confirmed. Accordingly, the second appeal stands dismissed. No costs.
lan To:
1. The Subordinate Judge, Thirupattur,
2. The District Munsif Court, Thirupattur