Chaman Lal vs Electrical Operation Circle and another

The present regular second appeal is at the behest of plaintiff

being aggrieved of concurrent judgments and decrees of the Courts below

dismissing the suit.

For the sake of convenience, the parties are being referred to as

per their original position in the suit.

Though this appeal is accompanied with an application (CM No.

10849-C of 2017) for condonation of delay of 194 days in filing the appeal,

yet the learned counsel for the appellant has been heard on merits.

The plaintiff filed a suit for mandatory injunction directing the

defendants No.1 and 2 to shift the pole mounted electrical transformer from

the plot No.1265, Deep Complex, Hallomajra, to any other common place.

The facts as averred in the plaint are that the plaintiff is a retired

Government employee who had purchased the land measuring 2 Biswas, share

of Khewat No.8, Khatauni No.21 to 24, Khasra No.405(6-2) in village

Hallomajra, HB No.219, UT Chandigarh, to settle his family after his

retirement. The mutation of the said land was entered in the name of the

plaintiff in the revenue record. Thereafter, the plaintiff came to know that

defendants had installed pole mounted electrical transformer in the plaintiff''s

plot without the consent of the plaintiff. He approached defendant No.2 for

shifting the transformer. He wrote a letter on 17.02.2011. The defendants

vide memo No.841 dated 14.03.2011 asked to submit the documents of

ownership of plot from the plaintiff which were handed over. The transformer

was not removed. Plaintiff gave a legal notice under Section 80 CPC and filed

the present suit in year 2013.

Upon notice, defendants filed written statement. In the written

statement, it was pleaded that the transformer in question was erected 20-25

years back and was catering the electric supply of the southern part of village

Hallomajra for the residents inside Lal Dora along with agricultural tubewells

situated outside Lal Dora. It was further averred that in the recent past, there

was a lot of constructional activities and there were encroachments, hence, the

transformer cannot be shifted to any other alternative place as it was not

technical feasible and was against the safety of the general public.

The learned trial Court framed the issue whether the plaintiff is

entitled for mandatory injunction?

The plaintiff, in order to support his suit, himself stepped into the

witness box as PW1, Clerk of Sub Registrar Office deposed as PW2. The sale

deed and copy of mutation were exhibited as P1 and P2, respectively. Memo

received by him, reply sent, copy of legal notice and copy of postal receipts

were exhibited as P3 to P8.

In order to rebut the claim of the plaintiff, Vijay Kumar, Engineer

appeared as DW1.

Learned trial Court dismissed the suit vide judgment and decree

dated 25.02.2015.

Aggrieved of the judgment and decree, appeal was filed by the

plaintiff. The District Judge, Chandigarh dismissed the appeal vide judgment

and decree dated 19.08.2016.

Hence the regular second appeal.

In the appeal filed, though seven substantial questions of law

have been framed but at the time of the arguments, learned counsel for the

plaintiff argued only one issue that the defendants without acquiring the land

or paying the compensation have installed the pole mounted transformer in the

land of the plaintiff. The transformer had been mounted without consent of the

plaintiff.

Before deciding the issue raised in the present appeal, it would be

pertinent to mention that learned Courts below while dismissing the suit, have

taken into consideration the fact that the plaintiff is entitled to the

compensation by way of money for which he can avail his remedies.

In the present case, the facts which have not been disputed are

that the plaintiff is owner of the suit land by virtue of a sale deed of 1995. The

mutation in the revenue record has been entered in his favour on the basis of

sale deed. It is also not disputed that the transformer is mounted on the said

land.

The issue which arises is whether the plaintiff was rightly

declined the relief by the learned Courts below. For this purposes, two aspects

of the matter have to be seen. Firstly, the plaintiff averred that he had

purchased this land to settle with his family after retirement. The defendants

have specifically raised an objection that the said land does not fall within Lal

Dora of the village. The plaintiff had not even produced an iota of evidence to

show that the said land falls within Lal Dora and he could have legally

constructed a house on the said land.

The second aspect is that it was averred by the defendants that the

transformer was mounted 20-25 years back i.e. much prior to the sale deed in

favour of the plaintiff. The said averment was not rebutted rather from the

pleading of the plaint, it appears that after the entry in the revenue record, the

plaintiff came to know that there was an electric transformer installed on the

plot.

In such circumstances, the plaintiff should have been aware while

purchasing the land that there was already a transformer mounted on the said

plot. If the land is not within Lal Dora, there is no irreparable loss to the

plaintiff and same has not been pleaded also.

The transformer caters electric supply to the villagers within Lal

Dora and to the tubewells outside Lal Dora.

In the present case, the public interest is pitted against personal

interest and it is not a case where the plaintiff cannot be compensated in

monetary terms. Huge public money had been invested for distribution of

electricity. The powers of the Electricity Board under the Electricity Supply

Act, 2003 read with Sections 10 and 16 of the Indian Telegraph Act, 1885

have not been challenged or disputed.

The contention of learned counsel for the plaintiff that no consent

was taken from him before erecting the transformer otherwise also cannot be

accepted as it has not been proved that the transformer was erected after the

purchase of land by the plaintiff.

During the course of hearing, learned counsel for the appellant

could not point out any illegality or perversity in the impugned judgments

passed by the Courts below. He could not refer to any question of law much

less substantial question of law which is sine qua non for this court to exercise

its appellate power under Section 100 of the CPC.

The cogent findings recorded by the learned trial court as well as

the first appellate court have been found factually correct and legally justified.

Thus, no fault can be found in the impugned judgments and decrees passed by

the courts below and the same deserve to be upheld.

No other argument was raised.

Considering the facts and circumstances of the case noted above,

coupled with the reasons aforementioned, this Court is of the considered view

that the present appeal is bereft of merit and without any substance, thus it

must fail.

Resultantly, the instant Regular Second Appeal is dismissed,

however, with no order as to costs.