Research › Search › Judgment

Madras High Court · body

2016 DIGILAW 1313 (MAD)

S. G. Subbaraja v. Superintending Engineer, TANGEDCO-Tirunelveli District, Maharaja Nagar, Palayamkottai, Tirunelveli District

2016-03-28

B.RAJENDRAN

body2016
ORDER : The petitioner has filed this Writ Petition seeking a Writ of Mandamus to direct the respondents to keep the space between the Sankarankovil Rajapalayam High Road and buildings with D.No.93 and the space between the same road and building with D.No.203 by removing any obstruction and to keep and monitor the said space as vacant in Sankarankovil Municipality limit in Tirunelveli District. 2. According to the learned Counsel appearing for the petitioner, earlier he filed a suit in O.S.No.25 of 1990 on the file of the Sub-Court, Tenkasi, and A.S.No.149 of 1994 restraining the respondents from removing the goods and for declaration that nobody has got right in putting up construction including the temporary construction, in which, the Government of Tamil Nadu represented by the District Collector and Electricity Board and Municipality were also the parties. The suit was dismissed and the first appeal was allowed. As per the decree, according to the petitioner, the Electricity Board erected the transformer, in the third scheduled property and it affects his right. Therefore, he would contended that the itself is illegal and sought for a Mandamus. 3. A detailed counter has been filed by the first respondent stating that the suit property in the third scheduled property cannot denote the area, in which, the transformer is erected. Further, even as per the decree, it has been very clearly stated that the decree will not affect the legal right of the defendants 1 to 3, namely, the Government in enjoying the property. Therefore, it is very clear that the petitioner cannot seek for a decree or seek for a direction not to enjoy the property, which is a Government property. 4. In this case, as per the instructions after the case has been heard a detailed sektch has been produced with pucca measurements. According to the petitioner, there is no dispute about the measurement. The petitioner is in occupation of the property and it is shown as a building. After that, there is a pavement and thereafter a pucca drainage. Only after the drainage and after the road portion, the first pole is erected. The distance between the building and the first pole is 6.80 meters i.e. around 22 feet and then distance between the building and upto the drainage is 3.90 meters and the drainage to the first pole which is the actual road portion is only 2.90 meters. Only after the drainage and after the road portion, the first pole is erected. The distance between the building and the first pole is 6.80 meters i.e. around 22 feet and then distance between the building and upto the drainage is 3.90 meters and the drainage to the first pole which is the actual road portion is only 2.90 meters. Therefore, the petitioner cannot have any grievance in respect of the portion in which the transformer has been erected. They have erected in the road portion and that too the first pole almost at the end of the shop and the transformer was erected not on the East-West facing the building and not anyway affected the topography of the petitioner's shop. Therefore, he contend that the writ petition is not maintainable. 5. Heard the learned Counsel appearing for the petitioner and the learned Counsel appearing for the respondents. 6. As clearly pointed out in the sketch, which is now produced, it is very clear that the third schedule in the decree in the suit cannot be the place where the injunction will operate as the transformer is erected much farther than the place as alleged in the third schedule. The petitioner's shop is much far away from the first pole erected by the Electricity Board and it is situated 21 feet away from his shop. In the decree, it is very clearly stated that the decree will not affect the legal right of the Government or the Electricity Board. What is asked by the plaintiff is merely because he is doing hardware merchant. He is using the area only to store the pipes, iron rod etc. and it cannot be a reason that the Government cannot have any right over the street on their portion to erect a transformer. The Civil Court decree, as rightly drafted will not affect the legal right of the Department to erect the transformer in the road. The petitioner cannot claim any right in the road for erecting of transformer stating that his shop's frontage is affected. 7. Therefore, the writ petition is dismissed. No costs. Consequently, the connected Miscellaneous petition is closed.