IMPORTANT POINT
Provisions of a Statute which exclude jurisdiction of civil court do not exclude those cases where the provisions of the particular Act were not complied with or the statutory tribunal had not acted in conformity with fundamental principles of judicial procedure.

JUDGMENT

K. Venkataswami, J.-The appellant/defendant in Civil Suit No. 9-A/67 on the file of the Court of Civil Judge, Class-I, Rajnandgaon, has suffered a decree at the hands of the trial Judge, directing the removal of the electric line with poles situated in the land bearing Kh. No. 908/2 area 1.32 acres at village Nandai. In addition to that, the appellant was also directed to pay a sum of Rs. 1770/- towards past damages and to pay future damages @ 5/- per day to the plaintiff (respondent-herein) from the date of institution of suit till the removal of electric line.

2. Aggrieved by decree, an appeal was preferred to the First Additional District Judge, Durg, at Rajnandgaon. The appellate Court dismissed the appeal by judgment and decree dated 5.2.1984. Still aggrieved, he preferred a second appeal in the High Court of Madhya Pradesh, Jabalpur. The High Court modified the decree by removing the mandatory injunction directing the defendant to remove the electric line with poles but sustained the decree for damages, past and future. The above appeal is directed against the judgment and decree of the High Court.

3. Shri Pallav Sishodia, learned counsel appearing for the appellant attempted to argue the appeal by raising a point which was neither raised in the pleadings nor argued in the courts below, namely, that the suit was barred by limitation. As this question of limitation on the facts of this case was not one of pure question of law but a mixed question of fact and law, we did not permit the learned counsel to raise this point for the first time before us.

4. The learned counsel for the appellant, therefore, has to confine his argument as to the bar of the suit as raised before the High Court. By referring to Sections 12, 19 and 52 of Indian Electricity Act, learned counsel submitted that the suit, as filed in the present case was barred. In other words, according to the learned counsel, the civil court could not adjudicate the dispute raised in the suit for which remedies and forum are provided under the Act itself and the plaintiff/respondent ought to have pursued those remedies before the forum mentioned in the Act. The contention of the learned counsel for the appellant was that in view of the forum provided in the Act for resolving the dispute, the suit must be taken to have been barred impliedly under Section 9 of the Code of Civil Procedure.

5. For appreciating the above contention, minimal facts may now be noted.

6. The grievance of the plaintiff/respondent was that in the land belonging to him which has been set apart for industrial use, the appellant Board had taken 33 KV high tension transmission lines over the construction already started in the said land without its consent and as such the erection was unauthorised and liable to be removed. The defence was that there was no erection when the high tension transmission lines were taken through the land and the plaintiff/ respondent never objected for taking those lines. However, the findings of all the three courts are to be effect that the transmission lines were laid without the plaintiff s consent after the plaintiff has already constructed portion of its saw mill, that the overhead transmission lines are likely to endanger the property of the plaintiff, that there was no sanctioned scheme for the transmission lines and that the plaintiff suffered damages @ 5/- day.

7. In the light of above concurrent findings of all the three courts, we do not think that there is any case for the appellant to sustain the defence it has taken in the written statement.

8. The High Court has given a finding after referring to Section 12 of the Electricity Act, 1910 as well as the provisions of the Electricity (Supply) Act, 1948, that the provisions of latter Act have no application to the facts of the case as admittedly, the transmission lines were not laid under any approved scheme. The High Court further held that the appellant Board having laid the transmission lines without taki