Pharmasivam And Another v. Tamil Nadu Electrici..., Madras High Court, Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Case Number

S.A No. 350 of 1998 and C.M.P No. 3659 of 1998

Attorney(S)

Mr. R. Sekar, Advocate for M/s. Sarvabhamuman, Associates for Appellants.
Mr. V. Rangabashyam, Advocate for Respondents.

Judges

S.S Subramani, J.

Acts

provision in Section 16(1) of the Telegraph Act
ELECTRICITY ACT 1910
SECTION 12 ELECTRICITY ACT
SECTION 51 ELECTRICITY ACT
SECTION 10 TELEGRAPH ACT
section 2(f).

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Smart Summary

Factual and Procedural Background

Plaintiffs (appellants) in O.S. No. 1360 of 1989 (I Additional District Munsif, Erode, Periyar District) sued for a permanent prohibitory injunction to restrain the defendants (the Electricity Board and its agents) from erecting a transformer in front of the suit property (Door No. 168, Sathy Road) where the rear of the property faces Nehru Street. The plaintiffs claimed ownership by a family partition deed dated 1.7.1987. The suit property fronts Sathy Road (east-west); Nehru Street runs north-south immediately east of the property and is about 50 feet wide. The plaintiffs alleged that the defendants, who already had an existing transformer on Sathy Road, intended to erect another transformer on Nehru Street (public road) without any oral or written consent to the plaintiffs, having dug pits near the rear portion of the suit property. They claimed the act was illegal, arbitrary, contrary to the Electricity Act, 1910 and its schedule, and violative of principles of natural justice; they feared hardship and interference with future construction on their vacant site.

In their written statement the defendants admitted the intention to install the transformer on the western side of Nehru Street, which they described as public property, and denied that the plaintiffs were entitled to object or that the installation would affect ingress/egress or property value. The Board asserted no consent was required and that installation was necessary in public interest to maintain voltage regulation.

At trial, the court admitted Exhibits A-1 to A-3 and C-1 and C-2 and heard oral evidence from P.W.1 (plaintiff) and D.W.1 (an officer of the Board). The trial court held for the defendants, finding no evidence of damage or interference with ingress/egress, that installation was necessary for voltage stability and in public interest, and dismissed the suit with costs.

The plaintiffs appealed (A.S. No. 6 of 1997) to the Principal Subordinate Judge, Erode, which court affirmed the trial court's findings and dismissed the appeal with costs. The appellate court held that plaintiffs had not shown installation contravened rules/regulations under the Electricity Act and that installation on a public street did not give plaintiffs a cause of action.

Legal Issues Presented

Whether the respondents' act of erecting a transformer in front of the suit property was contrary to Section 12 of the Indian Electricity Act and Rule 80 of the Electricity Rules.
If erection of the transformer causes hindrance to ingress and egress to the suit property, whether the appellants are entitled to injunctive relief to protect their interest in the suit property.
Whether the respondents' act of erecting the transformer without issuing notice to the landowners violated the principles of natural justice.

Arguments of the Parties

Appellants' (Plaintiffs') Arguments

The transformer was proposed to be erected in front of the suit property (rear facing Nehru Street) without any oral or written consent of the plaintiffs.
The proposed erection was illegal, arbitrary and capricious, and contrary to the Electricity Act, 1910 and its schedule.
No notice or intimation was given to the plaintiffs; the respondents' conduct offended principles of natural justice.
Erection of the transformer would cause hardship and may prevent future construction (e.g., putting up a new building) on the plaintiffs' vacant site, and could affect ingress/egress and property value.
The proposal was alleged to have been pursued at the instance of certain political parties (implying improper motive or pressure).

Respondents' (Defendants / Electricity Board) Arguments

The western side of Nehru Street is public property; the plaintiffs are not entitled to object to installation on a public street.
The installation would not hinder ingress or egress to the suit property nor affect its value.
No consent—oral or written—was required from the plaintiffs for installing the transformer on a public street.
Installation was required in the public interest to maintain voltage regulation and voltage stability in the locality.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Nithyanandam, M. and 2 others v. The Chairman Tamil Nadu Electricity Board, Madras-2 and 3 others, 199 4 W.L.R 445	Followed the Kerala High Court decision (Bharat Plywood) that prior notice/consent is not obligatory for the exercise of statutory powers to place electric supply lines; the decisions support that consent need not be obtained even in respect of private land.	The court relied on this decision to support the proposition that the Electricity Board is entitled to place a transformer in a public street without obtaining consent from neighbouring property owners; the decision helped establish that mere proximity to the property does not create a cause of action for the landowner.
Bharat Plywood and Timber Products Pvt. Ltd. v. Kerala State Electricity Board, AIR 1972 Ker. 47	Full Bench principle (quoted in para 17 reproduced in the opinion): although it may be proper to inform the owner/occupier, the statutory scheme (as explained under the Telegraph Act provisions) does not make prior notice obligatory before exercising the power; the District Magistrate's role under Section 16(1) provides opportunity to interested persons to state objections.	The court cited and followed this Full Bench decision to conclude that prior notice to landowners is not an absolute prerequisite for placing supply lines/transformers under the statutory scheme; the quotation was used to reject the appellants' natural justice/notice argument.

Court's Reasoning and Analysis

Statutory Interpretation: The court examined Section 12 of the Electricity Act (and the definition of "electric supply line" under section 2(f)) and concluded that the Electricity Board has the statutory right to lay down or place electric supply lines and to open/break up soil and pavement of any street. By that construction, the Board is entitled to place a transformer in a public street without requiring consent from neighbouring property owners.
Scope of Plaintiffs' Grievance: The court noted the plaintiffs did not allege the electric line was being drawn along private property; their sole grievance was that the transformer would be located opposite their property. The court held that mere placement in front of the property (on a public street) does not, by itself, create a cause of action for the plaintiffs.
Precedential Support: The court relied on earlier decisions (including Nithyanandam and the Full Bench Kerala decision in Bharat Plywood) to reinforce the view that prior notice or consent is not an absolute statutory requirement for exercising such powers. The quoted passage from the Full Bench decision explained that while prior notice may be proper in many cases, the statutory scheme (as under the Telegraph Act) does not mandate prior notice before exercising the power; procedures for objection are provided for by the statutory scheme.
Evidentiary Assessment: The court considered the evidence of D.W.1 (an officer of the Board), which showed that installation would not damage the plaintiffs' property and that installing the transformer was necessary to maintain voltage stability. D.W.1 also stated that the installation was an urgent necessity and could not be avoided by adjustments to existing nearby transformers.
Insufficiency of Plaintiffs' Evidence: The plaintiff (P.W.1) did not produce evidence to demonstrate how the installation would concretely harm the property or interfere with ingress and egress; the plaintiff offered only an apprehension of possible future injury. The court held that mere apprehension is insufficient to obtain injunctive relief.
Public/Statutory Interest: Because the respondents were statutory authorities performing a lawful act in the public interest (to ensure voltage regulation and stability), preventing them from doing so without adequate legal basis would amount to directing them contrary to law.
Conclusion from Analysis: Taking the statutory provisions, precedent, and evidence together, the court found no merit in the appellants' contentions and upheld the concurrent findings of the trial and appellate courts.

Holding and Implications

Holding: The substantial questions of law raised in the memorandum of appeal were decided against the appellants and, accordingly, the court dismissed the second appeal.

Immediate implications and effect on the parties:

The dismissal upholds the trial and lower appellate courts' conclusions that the Electricity Board is entitled to install the transformer in the public street without requiring the plaintiffs' consent and that the plaintiffs did not establish entitlement to injunctive relief.
The evidence was held to show the installation was necessary for voltage stability and would not cause demonstrated damage or impede enjoyment of the plaintiffs' building; therefore the defendants may proceed subject to applicable statutory and procedural requirements already considered by the courts.
No further relief was granted to the appellants; the connected miscellaneous petition (C.M.P. No. 3659 of 1998) was also dismissed. The opinion does not discuss any broader rule-making or new precedent beyond applying and following existing authorities cited in the judgment.

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Pharmasivam And Another v. Tamil Nadu Electricity Board Rep. By Its Superintending Engineer, Periyar Electricity System, Mettur, Erode And 2 Others S

1. Plaintiffs In O.S No. 1360 of 1989 on the file of I Additional District Munsif, Erode, Periyar District are the appellants. Suit filed by them was one for permanent prohibitory injunction restraining the defendants, their men, agents, servants from erecting a transformer in front of the suit property (Door No. 168, Sathy Road) having its rear portion facing Nehru Street and for consequential reliefs. It is stated in the plaint that the schedule property belonged to the plaintiffs as per family partition deed dated 1.7.1987 In the property there is a non-residential building. It is having its frontage facing Sathy Road, which runs east to west. On the immediate east of the property a North South road runs and its is called Nehru Street. The suit property has got its rear portion facing Nehru Street and it forms one block. The width of Nehru Street is about 50 feet. There is also a zinc steel roof structure in the property. It is alleged that after shifting the bus stand to Sathy Road and after formation of Periyar District with Erode as Headquarters, there is a steep rise in the price of the properties in and around Sathy and Nehru Street.

The reason for filing this suit is that the defendants wanted to erect a transformer at Nehru Street According to the plaintiffs, there is already an existing transformer belonging to the defendants in Sathy Road and without the consent either oral or written, the defendants are attempting to erect a transformer in the rear portion of the suit property facing Nehru Street. For the said purpose, they have dug pits near the rear portion of the suit property. It is said that it is only at the instance of certain political parties such an attempt is being made. By erecting a transformer in front of the suit property is illegal, arbitrary and capricious and against the provisions of the Electricity Act, 1910 and the schedule therein and also against the principles of natural justice. The defendants have not given any intimation to the plaintiffs about the proposed installation of a transformer. If the transformer is allowed to be installed, it will put the plaintiffs to great hardship and they may not be in a position to put up a new building in the vacant site.

2. In the written statement filed by the defendants, it is admitted that they want to instal it in the western side of Nehru Street and the same is a public property and the plaintiffs are not entitled to object the proposed erection of the transformer by alleging that it is a hindrance to their ingress and egress to the suit property nor it is going to affect the value of the suit property. The plaintiffs are not entitled to object the erection of the transformer at the public place which do not belong to them. The Board is also not expected to get any written or oral consent from the plaintiffs. Public interest requires that a transformer had to be installed to maintain voltage regulation within the statutory limit. He prayed for dismissal of the suit.

3. The trial court marked Exhibits A-1 to A-3 and C. 1 and C. 2 oral evidence consisted of P.W 1 plaintiff and an officer of the Board as D.W 1. The trial court found that the defendants are entitled to instal a transformer in a public street and the plaintiffs are not entitled to object the same. It further held that no evidence had been let in to show that by installing a transformer in Nehru Street, any damage will be caused to the plaintiffs' property or the right of ingress and egress. It also came to the conclusion that for the purpose of maintaining voltage stability, the transformer is to be installed and that is in public interest. It also came to the conclusion that by installing the transformer, no inconvenience will be caused to the plaintiffs in enjoying their building. The suit was dismissed with cost.

4. Aggrieved by the judgment, plaintiffs preferred A.S No. 6 of 1997 on the file of Principal Subordinate Judge, Erode. The lower appellate court also confirmed the findings of the trial court and dismissed the appeal. The appellate court has further held that the plaintiffs had no case that the defendants are installing the transformer against the rules and regulations under the Electricity Act. It is further held that even though the plaintiffs have a case that the transformer is going to be held due to political pressure, there is no enemity between the members of Electricity Board and the plaintiffs. The transformer is only installed in public street. The plaintiffs cannot have a cause of action and the plaintiffs cannot dictate terms when the Board wants to instal it in a public road. The appeal was dismissed with cost.

5. The concurrent judgment is assailed in the second appeal on the following substantial questions of law:—

1. Whether not the act of the respondents in erecting a transformer in front of the suit property is against the provisions of Section 12 of the Indian Electricity Act and Rule 80 of the Electricity Rules?

2. Where there is hindrance to ingress and egress to the suit property by virtue of the act of erecting transformer, whether not the appellants entitled to the relief of injunction in order to protect their interest in the suit property?

3. Whether not the act of respondents in erecting the transformer without issuing notice to the landowners is against the principles of natural justice?

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 owner is not the case of the plaintiff that the line is drawn along with private property. Their only grievance is that the transformer is going to be place 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. This court in Nithyanandam, M. and 2 others v. The Chairman Tamil Nadu Electricity Board, Madras-2 and 3 others, 199 4 W.L.R 445 has followed the decision of Kerala High Court reported in Bharat Plywood and Timber Products Pvt. Ltd. v. Kerala State Electricity Board, AIR 1972 Ker. 47. In para 17 of the judgment, AR. Lakshmanan, J. extracted the Full Bench decision of the Kerala High Court and followed it, which reads thus:—

“one other subject which came up for discussion was the question whether a notice should be issued by the public officer, licensee or other person chose by the State Government under Section 51 of the Electricity Act for the conferment of power under the Telegraph Act to the owner or occupier or other person in the control or management of the property over which the electric supply line is proposed to be placed intimating the intention of the authority to place supply lines over the property. Isaac, J., has held in his judgment in O.P No. 1454 of 1967 (Kerala) that a notice should be given in order to satisfy the requirements of natural justice and also because unless a notice is given the owner of the land will not be in a position to know under what authority action is being taken. There may be yet another reason in favour of the contention that notice should be given normally, that unless the owner or occupier is informed of the exact nature of the proposal for laying the electric supply line he will not be in a position to decide whether the exercise of the power should be resisted or obstructed. Even so, we do not think that in the light of the provision in Section 16(1) of the Telegraph Act under which the District Magistrate has been given the power to decide whether an order should be passed that the authority should be permitted to exercise the power, a prior notice to the owner or occupier is necessary. The whole procedure under the scheme of the provision in Part III of the Telegraph Act seems to be different. As the provisions stand, we do not think that it is obligatory on the part of the competent authority to issue a prior notice before exercising the power under Section 10 of the Telegraph Act. Before passing as order under Section 16(1) the District Magistrate has necessarily to issue notice to all person interested and give them an opportunity to state their objections, if any. Without giving such an opportunity he will not have any material, at any rate, adequate material to decide whether he should pass an order that the authority shall be permitted.

No doubt, it will be proper and certainly desirable that the owner or occupier should be informed before acts are done on his property. It is conceivable that, when he is so informed, the exact location and the aligement of the line can be settled without resistance or obstruction by mutual understandings. However, that be, as we understand the provisions in the Telegraph Act, Part III we do not consider it necessary that there should be prior notice”.

7. The evidence of D.W 1 was also placed before me. On going by his evidence, it is clear that no damage will be caused to the plaintiffs' property and the installation of a transformer is absolutely necessary so as to maintain the voltage stability. The witness also swears that the installation of transformer is an urgent necessity of the locality and he also said that the voltage stability cannot be maintained by making necessary adjustments in the existing transformers situated near the plaint property. The lower appellate court has also considered the evidence of P.W 1. The plaintiff has not given any evidence to show how the installation of the transformer will affect his property. His only apprehension is that installation may affect injuriously in future. Merely on the basis of apprehension, a decree for injunction cannot be granted. The respondents are doing a lawful act and they are the statutory authorities. To prevent them from discharging the statutory functions, will amount to a direction against law.

8. Substantial questions of law raised in the memorandum of appeal are found against the appellants and consequently, the second appeal is dismissed. No costs, C.M.P No. 3659 of 1998 is also dismissed.

Pharmasivam And Another v. Tamil Nadu Electrici...