Dharmasivam and Another vs Tamil Nadu Electricity Board, Erode and 2 Others

S.S. Subramani, J.—Plaintiffs in O.S. No. 1360/89 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 nonresidential

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 it

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. In the written statement filed by the defendants, it is admitted that they want to install it in the western side if 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.

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 install 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 costs.

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 enmity between the members of the Electricity Board and

the plaintiffs. The transformer is only installed in a public street. The plaintiffs cannot have a cause of action and the plaintiffs cannot dictate terms

when the Board wants to install it in a public road. The appeal was dismissed with costs.

The concurrent judgment is assailed in the Second Appeal on the following substantial questions of law.

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?

When mere 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?

Whether not the act of the respondents in erecting the transformer without issuing notice to the land owners is against the principles of natural

justice?

After hearing the counsel on both sides. I do not find any merit in the Second Appeal. u/s 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 u/s 2(f). On going by the said provision, 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 properly. 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. & 2 others v. The Chairman, Tamil Nadu Electricity Board. Madras -2 & 3

others (1994 Writ L.R. 445) has followed the decision of Kerala High Court reported in AIR 1972 Kerala 47 (Bharat Plywood and Timber

Products Pvt. Ltd. v. Kerala State Electricity Board). 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

chosen by the State Government under S. 51 of the Electricity Act for the conferment of powers 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

S.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 provisions 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 S. 10 of the Telegraph Act. Before passing an order under S.

16(1) the District Magistrate has necessarily to issue notice to all persons 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 alignment of the line can be settled without resistance or obstruction by actual

understanding. 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.

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. 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.