Tamil Nadu Electricity Board vs Madasamy Konar

P. Murgesen, J.—This appeal is directed against the judgment and decree dated 20.11.1997 made in A.S. No. 19 of 1996 on the file of the

Principal District Court, Tuticorin against the judgment and decree dated 25.10.1995 made in O.S. No. 431 of 1994 on the file of Principal

District Munsif Court, Tuticorin.

The appellants are the defendants and the respondent is the plaintiff in the suit. The plaintiff has filed the suit in O.S. No. 431 of 1994 on the file

of Principal District Munsif Court, Tuticorin for the relief of injunction and mandatory injunction to remove the transformer installed in front of his

property.

Before the Trial Court, on behalf of the plaintiff, P.W.1 and P.W.2 were examined and Ex.A1 to Ex.A7 were marked and on behalf of the

defendants, D.W.1 was examined and Ex.B1 and Ex.B2 were marked.

On consideration of the evidence available on record, the learned Principal District Munsif, Tuticorin dismissed the suit. Aggrieved over the

judgment of the learned Principal District Munsif, Tuticorin, an appeal was preferred in A.S. No. 19 of 1996 on the file of the Principal District

Judge, Tuticorin. The learned Principal District Judge, Tuticorin allowed the appeal.

Challenging the judgment of the learned Appellate Judge, the Second Appeal has been filed.

At the time of admission of the Second Appeal, the following substantial question of law was framed:

Whether the right of the Electricity Board to install an electric transformer in any road margin in the larger interest of the public will in any be

curtailed by the individual interest of the adjoining land owner?

Ex.A1 is the Partition Deed which would show that the first item of the suit property was allotted to the father of the respondent/plaintiff in the

partition which took place on 07.08.1962. The respondent/plaintiff was allotted the first schedule of the suit property in the partition between him

and his brother. The suit property is situated in the Tiruchendur-Tuticorin Road. The second schedule of the suit property is situated in the eastern

side of the respondent/plaintiff''s property. The appellant-Electricity Board attempted to install a transformer near the plaintiff''s property. Hence,

the plaintiff sent a telegram to the Executive Engineer of the Electricity Board which is Ex.A2. The plaintiff also sent a representation to the

defendants which is Ex.A3 informing about the filing of the suit and in spite of the same, the transformer was installed.

Ex.A7 is the rough sketch where the portion marked as ""ABCD"" is shown as the plaintiff''s property and the portion marked as ""SST"" is shown

as the transformer. The location of the transformer in front of the house of respondent/plaintiff is not in dispute. It is the case of the

respondent/plaintiff that by installing the transformer, his right to access to the Tiruchendur-Tuticorin Road is blocked.

Learned Counsel for the appellants submitted that there is a 10 ft. gap between the property of the plaintiff and the transformer installed. It is

also submitted by the Counsel for the appellants that the plaintiff''s property is only a poramboke and he cannot claim right over the same and

hence it is the right of the Electricity Board to install the transformer.

Ex.A1 is the Partition Deed. Even in paragraph-3 of the plaint, it is averred that the suit property is the property of the plaintiff, P.W.1. P.W.1

also spoke about the right over his property. The evidence of D.W.1, Pichandi Pillai, Electrical Engineer of the appellant-Electricity Board, was

silent about the right of the plaintiff. Therefore, the allegation of the learned Counsel for the appellants that the first schedule of the property is a

poramboke is not correct. Now, the short point that arises for consideration before this Court is whether the appellants are entitled to install

transformer at any point of time at any place and also whether the owner of the land shall not question it.

Learned Counsel for the appellants relied on the decisions of this Court in the case of Pharmasivam and another Vs. Tamil Nadu Electricity

Board and 2 others, and in the case of A.R.A.S. Duraisamy Nadar v. Tamil Nadu Electricity Board, rep. by its Superintending Engineer, Tuticorin

2001 (4) CTC 129 and argued that the appellants are entitled to install the transformer in any place and the power of the Electricity Board is

absolute. Therefore, it has to be analysed whether the Electricity Board is entitled to install the transformer at any place without taking into

consideration the sufferings of the land owner.

In the present case, the transformer has been installed in front of the plaintiff''s property. The appellants claim that there is a pathway on the

southern side of the plaintiff''s property and therefore, the plaintiff can proceed on the southern side to reach his house. The evidence of P.W.2 -

Kottamuthu, would show that the property in the southern side of the plaintiff''s property is a property belonging to a particular community.

Therefore, the respondent/plaintiff cannot claim right on the southern side of the property. The access available to the plaintiff to reach the house is

only through Tiruchendur-Tuticorin Road and the same is blocked by the transformer. He cannot use the southern side as the front portion of his

property. Further the safety of the children also is very much involved in this matter.

In the decision reported in 2000 (II) CTC 537, cited supra, it has been pointed out that there was no evidence to show that the damage will be

caused to the plaintiff''s property. But in the present case, P.W.1 spoke about the sufferings that he cannot reach the main road freely and that

therefore, his right is curtailed. In the present case, there is a damage to the property of the plaintiff. Hence the judgment reported in 2000 (II)

CTC 537 is not applicable to the facts of the present case.

In the decision reported in 2001 (4) CTC 129, cited supra, the learned Judge has pointed out that the plaintiff''s access to the property was

not obstructed. Here in the present case, the plaintiff''s access to the main road is obstructed and curtailed in the installation of transformer. Hence

the judgment reported in 2001 (4) CTC 129 is not applicable to the facts of the present case.

The right of owners of land adjoining the highway to go upon the highway from any point on their land is a private right distinct from his right to

use the highway as a member of public. If the right to access is obstructed by anyone, the owners of the land abutting the highway are entitled to

maintain action for the injury, whether the obstruction does or does not constitute a public nuisance. This principle was laid down in a decision of

this Court in the case of K.V.K. Janardhanan v. The State of Tamil Nadu rep. by the Collector of Salem, etc. and 3 Ors. 1995 1 L.W. 451. This

aspect was also considered in another judgment of this Court in the case of Bharathamatha Desiya Sangam, Madhavaram v. Roja Sundaram 1999

L.W. 833. It would be relevant at this juncture to refer to the Mackenzie''s Law of Highways, Twenty-first Edition at Page 58 wherein it is stated

as under:

The owner of land adjoining a highway has a right of access to the highway from any part of his premises. This is so whether he or his

predecessors originally dedicated the highway or part of it and whether he is entitled to the whole or some interest in the ground subjacent to the

highway or not.... The right of the owner of land adjoining a highway to access to or from the highway from or to any part of his land is a private

right, distinct from the right to use the highway as one of the public, and the owner of the land whose access to the highway is obstructed may

maintain an action for the injury, whether the obstruction does or does not also constitute a public nuisance.

In the above case also the right of the owner to have access to the highway was upheld. Therefore, this Court is of the considered view that the

decisions of this Court in the case of K.V.K. Janardhanan v. The State of Tamil Nadu rep. by the Collector of Salem, etc. and 3 Ors. 1995 1

L.W. 451 and in the case of Bharathamatha Desiya Sangam, Madhavaram v. Roja Sundaram 1999 L.W. 833, are applicable to the facts of the

present case.

In the present case, the breadth of the plaintiff''s property at north-west is 13. feet and the transformer is situated to the extent of 12 feet.

Therefore, the factually the access to the public way is blocked. Moreover, the installation of transformer also poses a threat to the children. The

right of the individual cannot be buried without any consideration.

This Court is of the considered view that the right of the individual cannot be snatched away. With regard to the relief of mandatory injunction

to remove the transformer installed in front of his property, the Counsel for the appellants submitted that the property is not described. In the plaint,

it is shown that the transformer is situated in front of the first schedule of the suit property. Ex.A7 is the rough sketch where the portion marked as

ABCD"" is shown as the plaintiff''s property and the portion marked as ""SST"" is shown as the transformer. Hence, the location of the transformer

in front of the property of respondent/plaintiff is not in dispute. So, there is no doubt about the identification of the property. Hence, the plaintiff is

entitled to the relief of mandatory injunction as prayed for in the suit.

In view of the foregoing reasons, the question of law is answered in favour of the respondent and accordingly the second appeal is dismissed.

No costs. The appellant-Electricity Board is given six months time from today to remove the transformer.