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2010 Supreme(Mad) 3614
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE R. SUBBIAH
Tamil Nadu Electricity Board rep.by its Chairman, Chennai & Others
Versus
V. Dharmalingam
Second Appeal No.422 of 2002
Decided On : 23-08-2010
For the Appellants:N. Muthusamy, Advocate.
For the Respondent:S. Kaithamalai Kumaran, Advocate.
The installation of the transformer was in the interests of the public, and the appellants, being the statutory authorities, were entitled to do a lawful act.
Headnote:
Electricity Board - Permanent Injunction - Indian Electricity Rules, 1956 - 2000(II)CTC 537, 2001(4)CTC 129 - The court discussed the proposed shifting of the transformer structure within the norms prescribed under the Indian Electricity Rules, 1956. It considered the public interest prevailing over private interest and cited relevant judgments to support its decision. The court held that the installation of the transformer was in the interests of the public, and the appellants, being the statutory authorities, were entitled to do a lawful act.
Fact of the Case:
The respondent filed a suit seeking a permanent injunction to prevent the appellants from installing or erecting a transformer near the suit properties. The appellants resisted, stating that the proposed shifting of the transformer structure was within the norms prescribed under the Indian Electricity Rules, 1956.
Finding of the Court:
The court found that the proposed shifting of the transformer structure was within the norms prescribed under the Indian Electricity Rules, 1956. It held that the public interest prevailed over private interest and that the installation of the transformer was in the interests of the public.
Issues: The issues involved the distance between the suit properties and the existing transformer, the potential danger to the inmates and users of the suit properties, and the public interest prevailing over private interest.
Ratio Decidendi: The court held that the installation of the transformer was in the interests of the public, and the appellants, being the statutory authorities, were entitled to do a lawful act. It cited relevant judgments to support its decision.
Final Decision: The second appeal was allowed, the decree and judgment of the lower appellate court were set aside, and the suit was dismissed. The decree and judgment of the trial court were confirmed. No costs were awarded.
1. The defendants are the appellants, who filed this Second Appeal aggrieved over the decree and judgment dated 05.03.2001 passed by the learned II Additional District Judge, Erode, in A.S.No.231 of 2000, whereby the decree and judgment dated 12.09.2000 passed by the learned I Additional District Munsif, Erode, in O.S.No.574 of 1999, were set aside.
2. The respondent herein filed the suit in O.S.No.574 of 1999 on the file of I Additional District Munsif Court, Erode, against the appellants to grant a permanent injunction restraining them from installing or erecting the transformer abutting the suit properties, stating that the suit properties consisting of a terraced house and shops, absolutely belonged to the respondent/plaintiff by virtue of a partition dated 25.06.1969 among his brothers and on the immediate north of the suit properties, there is a Highway Road called as Sathi Road. The plaintiff is having a right of way on all points on the Highway Road to reach his properties and hence, he is using the said road for his ingress and egress to reach the suit properties. There is a high voltage transformer erected long back in front of the suit properties at a distance of about 10 feet in Sathy road and the same is not a hindrance to anybody. While so, the subordinates of the defendants Electricity Board without any rhyme or reason, made attempts to change the existing transformer and to erect the same immediately on the north of the suit properties and if they do so, there would be a danger to the inmates and users of the suit properties and it would completely block the entry points to the suit properties. Hence, the suit.
3. The said suit was resisted by the Electricity Board stating that a high voltage distribution transformer erected long back in front of the suit properties at a distance of about 18 feet in Sathy Road and due to the increased strength of vehicles and heavy traffic and in order to facilitate the public, the Highways department requested the Board to shift the existing transformer to further 6 feet towards south and hence, 12 feet distance is available and it would not cause any disturbance to the plaintiff or his suit properties. Hence, the suit is liable to be dismissed.
4. On the said pleadings, the trial court framed three issues and on the side of the plaintiff, P.Ws.1 and 2 were examined and Exs.A-1 to A-5 were marked and on the side of the defendants, D.W.1 was examined and Exs.B-1 to B-5 were marked and Exs.C-1 and C-2, the Advocate Commissioners report and plan were marked. The trial court, on a consideration of the evidence both oral and documentary, had dismissed the suit. Aggrieved by the said judgment, the plaintiff filed A.S.No.231 of 2000 before the II Additional District Judge, Erode, and the appellate court allowed the appeal and reversed the judgment of the trial court by placing reliance on the judgment reported in 1994 (I) L.W.470 (NATARAJAN ..vs.. THURAIYUR MUNICIPALITY, REP.BY ITS EXECUTIVE OFFICER). Being aggrieved by the said judgment, the defendants have filed the present second appeal.
5. At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration:
(1) Whether the Court below is correct in allowing the appeal without hearing the appellants counsel herein and even in the absence of appellant and appellants counsel ?
(2) Whether the Court below is correct in allowing the appeal without considering the fact that the proposed shifting of transformer structure is within the norms prescribed under the Indian Electricity Rules, 1956?
6. Learned counsel for the appellants/defendants Electricity Board submitted that as on date, there was a distance of 18 feet between the suit properties and the existing transformer. Even if it is shifted, there will be a distance of 12 feet from the suit properties. Therefore, it is incorrect to state that if the transformer is shifted, it will affect the respondents right
