JUDGMENT

The plaintiff in O.S.No.54 of 2007, whose suit for declaration of title and mandatory injunction directing the defendants to remove the electricity poles erected by the defendants over the suit schedule property, was dismissed upon its affirmation by the appellate Court, has come up with this second appeal.

2.According to the plaintiff, the defendants have raised the electricity poles without the consent of the plaintiff over its property, thereby, invading the rights of the plaintiff over the property. Therefore, according to the plaintiff, the defendants should be directed by way of a mandatory injunction to remove the electricity poles erected.

3.The suit was resisted by the defendants contending that the electricity poles were erected for transmitting the energy from the wind energy plant of the first defendant to the common grid. The poles were erected by the second defendant as a licensee in exercise of its powers under Section 10 of the Indian Telegraph Act, 1885, r/w Section 164 of the Tamil Nadu Electricity Act, 2003.

4.The trial Court relying upon the judgment of this Court in the case of The Executive Engineer, Wind Farm, Tamil Nadu and another vs S.Jegathesan, reported in 2008-1-L.W.1048 decreed the suit. Aggrieved, the defendants preferred an appeal in A.S.No.35 of 2014. The learned appellate Judge noticing the judgment of this Court reported in 2012 (1) CTC 504, wherein, the law relating to the right of a licensee to erect poles on another's lands has been elaborately discussed, concluded that the plaintiff has no right to maintain the suit. On the said conclusion, the learned appellate Judge allowed the appeal and dismissed the suit. Aggrieved, the plaintiff has come up with this second appeal.

5.I have heard Mr.S.Chellapandian, learned Counsel appearing for the appellant.

6.Mr.S.Chellapandian, learned Counsel appearing for the appellant would vehemently contend that despite objection by the plaintiff, the respondent, should not have erected the poles without having recourse to Section 16 of the Indian Telegraph Act, 1885, which contemplates permission of the Executing Magistrate for erection of poles.

7.The position of law relating to erection of electricity poles for transmission of energy is settled by several decisions of this Court. As rightly pointed out by the learned appellate Judge, this Court in the case of R.Santhana Raj vs The Chief Engineer, Non-conventional Energy Source reported in 2012 (1) CTC 504, had succinctly set out the law. The lower appellate Court had referred to the said dictum and concluded that a suit of this nature cannot be maintained.

8.In view of the said binding precedent, I do not think that the second appeal could be entertained. Hence, the appeal fails and it is accordingly, dismissed. No costs. It is, however, open to the appellant to seek appropriate compensation, if permitted under law. Consequently, connected miscellaneous petition is closed.

Index: Yes/No 17.02.2021 To

1.The Subordinate Judge, Valliyoor.

2.The Additional District Munsif, Valliyoor.

3.The Section Officer, Madurai Bench of Madras High Court, Madurai.

R.SUBRAMANIAN, J.

cmr Judgment made in S.A.(MD)No.7 of 2021

17.02.2021