Important Point – Question of difficulty in shifting of transformer is to be considered at stage of execution of decree for mandatory injunction.

Review Petition No.38/2017 (under Section 114 read with Section 47 Rule 1 and Section 151 CPC) & IA No.1154/2017 (for condonation of 118 days delay in filing Review Petition).

1. The defendant no.1 BSES Rajdhani Power Ltd. (BSES RPL) seeks review/recall of the order and partial decree dated 14th July, 2016.

2. The plaintiff instituted this suit for mandatory injunction directing BSES RPL, South Delhi Municipal Corporation (SDMC) and Divisional Head (O&M) of BSES RPL to remove the transformer and the electric pole installed in the portion of the properties No.D-1/20 and D-1/21, Rajouri Garden, New Delhi of the plaintiff and for recovery of arrears of and future mesne profits/damages for use and occupation.

3. The suit was entertained.

4. BSES RPL filed a written statement inter alia pleading (a) that the subject transformer has been in existence for over 30 years; and, (b) that BSES RPL is unable to locate the documents executed by the then owner of the property permitting installation of the said transformer and have sought the same from Delhi Power Corporation Limited (DPCL) being the holding company created while unbundling erstwhile Delhi Vidyut Board (DVB) during whose regime the subject transformer and electric pole were installed.

5. SDMC did not file any written statement and the counsel for the plaintiff stated that SDMC was impleaded only because it was the stand of BSES RPL in response to the legal notice preceding the suit that SDMC had to allocate alternative place for shifting of the said transformer; else no relief had been claimed against SDMC.

6. The suit came up for framing of issues on 14th July, 2016 when the counsel for the plaintiff stated that the written statement of BSES RPL did not disclose any defence to the suit insofar as for the relief of mandatory injunction and the plaintiff was entitled to a decree forthwith.

7. For the reasons recorded in the order dated 14th July, 2016, merit was found in the aforesaid contention of the counsel for the plaintiff and the suit, insofar as for the relief of mandatory injunction, was decreed and a decree for mandatory injunction was passed in favour of the plaintiff and against the defendant no.1 BSES RPL directing the defendant no.1 BSES RPL to remove the transformer and the electric pole in property No.D-1/20, Rajouri Garden, New Delhi within three months therefrom.

8. As far as the claim of the plaintiff for recovery of damages/mesne profits was concerned, issues were framed thereon and the same was put to trial, which is underway.

9. The defendant no.1 BSES RPL seeks review/recall pleading (i) that the review applicant/defendant no.1 BSES RPL at the time of hearing failed to bring to the notice of this Court the framework of the Electricity Act, 2003 and resultantly the decree for mandatory injunction is contrary thereto; (ii) that in terms of Section 145 of the Electricity Act, the jurisdiction of the Civil Court to take cognizance of the suit of the civil nature covered under the Electricity Act stands excluded and no court shall grant injunction in respect of any action taken or to be taken in pursuance of powers conferred under the Electricity Act; (iii) the Electricity Act provides specific mechanism and procedure to be followed by a person who seeks removal/shifting of any existing electricity distribution network; (iv) that the sub-station kiosk housing transformer of 990 KVA capacity was installed more than 30 years ago and the arrangement as existed between the owner of the property and the erstwhile Delhi Electric Supply Undertaking (DESU) for installation and operation of distribution transformer subsisting at the plaintiff’s premises continues; (v) that in view of Section 60(b) of the Indian Easements Act, 1882, the plaintiff is restrained from terminating the said licence since the licensee has executed a work of a permanent character and incurred expenditure; (vi) that the pole and the transformer are part of the distribution system as defined i