The Tamil Nadu Electricity Board and 3 others vs A. Anandammal (deceased) and 4 others

The officials of the Tamil Nadu Electricity Board defendants in O.S.No.978 of 1990 on the file of the 19th Assistant City Civil Court, Madras

are the appellants herein.

The first respondent herein filed the said suit for mandatory injunction directing the appellants herein to remove the electricity posts as well as

electricity wires passing through her land on the ground that she is unable to convert her land into housing plots.

The appellants herein contended that the electricity posts were in existence for more than 27 years in the first respondent''s lands and the

electricity lines were also in existence from the time of erection of the electricity posts. When the electricity posts were in existence for more than

27 years prior to the filing of the suit, it not open to the first respondent herein now to seek for a mandatory injunction as prayed for.

The trial court, after considering the evidence available on record, dismissed the said suit by judgment and decree dated 6.10.1982. As against

the same, the first respondent herein preferred an appeal in A.S.No.314 of 1983 on the file of 4th Additional City Civil Judge, Madras. The

learned 4th Additional City Civil Judge, who heard the appeal, had allowed the same by his judgment and decree dated 13.12.1984 and

consequently, granted a decree in favour of the first respondent herein. As against which, the present second appeal has been filed.

During the pendency of the second appeal, the first respondent - died respondents 2 to 5 were brought on record as her legal representatives.

At the time of admission of the second appeal, the following substantial questions of law were formulated:

i) Whether the question of want of consent of the land owner u/s 12 of the Indian Electricity Act can be raised after a lapse of 25 years? And

ii) Whether the lower appellate court has not failed to draw the presumption of legality of official acts u/s 114 of the Evidence Act?

Learned counsel for the appellants contended that when the electricity posts were in existence for the past more than 27 years, and the

alignment for taking the electricity lines had been finalised during the period, it is not the case of the first respondent herein that she made any

objection during the time when the electricity posts were erected. Even in the plaint filed by the first respondent, no such averment has been made.

Hence, at the time of erection of the post, a quarter century prior to the filing of the suit. There was no objection and the work was carried on and

the posts were in existence along with the electricity lines. Further, the high tension electricity supply had been provided for the consumers. Hence,

now, it is not open to the first respondent to seek for a mandatory injunction for the removal of the electricity posts or electricity lines.

On the contrary, the learned counsel for respondents 2 to 5 contended that there is nothing on record to show that the appellants had obtained

the consent of the first respondent before ever the electricity posts were erected. In the absence of any such consent, it is not open to the

authorities to erect the electricity posts, as it will amount to trespass over the lands of the first respondent. Hence, the lower appellate court has

rightly taken into consideration this aspect and allowed the appeal and no interference is called for.

This court carefully considered the contentions of the learned counsel on either side. It is unnecessary to go into the contentions of both the

learned counsel in detail.

The admitted fact is that 27 years prior to the filing of the suit, the electricity posts were erected in the first respondent''s lands. Through such

posts, the electricity lines had been drawn for providing electricity supply to the consumers. The suit has been laid in the year 1980. Hence, there is

no dispute that the electricity posts were in erected in the year 1953. When the electricity posts were in existence since 1953, the short question

for consideration is as to whether it is open to the first respondent to seek for mandatory injunction as prayed for after 27 years. This court is of the

view that it is not open to the first respondent to seek for such a relief, since it may lead to undo the settled things. When the electricity posts had

been laid in the year 1953 and the electricity wires had been taken through those posts, many of the consumers might have been benefited by the

supply of electricity. If the electricity posts are to be removed at this belated stage, naturally, the appellants are bound to make alternate

arrangements by realigning the lines or the posts. If that be done, as stated in the evidence of DW1, it may cost Rs.100 Lakhs which is not a small

amount for the Electricity Board to make such a commitment for the benefit of the individual. The lower appellate court has totally failed to

consider this aspect.

It has been held by this court in the case of The Superintending Engineer, TNEB Basin Bridge, Power House, Chennai-12 and three others

Vs. Thangaprakasam, that the individuals owning lands where the Board proceed with the work of constructing concrete bases for installing high

posts to draw high tension wires cannot seek injunction restraining the Board from doing, so long as it is done in accordance with the provisions of

the Act and sanctioned scheme. Similarly, in the case of Nityanandham, M and two others v. Chairman, Tamil Nadu Electricity Board and others,

1994 WLR 445, this court has held that the only right of the land owner is to claim compensation from the authorities, and not for prohibition

prohibiting the authorities from erecting the posts. Such view had already been taken by a Full Bench of the Kerala High Court in the case of

Bharath Plywood and Bharat Plywood and Timber Products Private Ltd. Vs. Kerala State Electricity Board Trivandrum and Others, . In view of

the well laid principles, this court is of the view that the suit for mandatory injunction cannot at all be maintained. Consequently, the judgment and

decree of the lower appellate court cannot be sustained and are liable to be set aside.

Accordingly, the judgment and decree of the lower appellate court are set aside and the second appeal is allowed. No costs.