Om Sakthi Real Estate by Partners v. Superintending Engineer, Tamil Nadu Electricity Board, Kancheepuram Electricity Division Circle
2018-11-22
S.M.SUBRAMANIAM
body2018
DigiLaw.ai
JUDGMENT : 1. The present Second Appeal on hand is preferred against the judgment and decree passed in A.S.No.80 of 1997 dated 27.2.2003 on the file of Sub Court, Kancheepuram, confirming the judgment and decree passed in O.S.No.1242 of 1990 dated 3.6.1996 on the file of the Additional District Munsif Court, Kancheepuram. 2. The ranking of the parties are referred as per the ranking assigned before the Trial Court. 3. The plaintiffs are the appellants in the Second Appeal. The suit is filed for permanent injunction and for mandatory injunction. The plaintiffs are Om Sakthi Real Estate and they have formed a layout and accordingly, formulated a Gated Community for the purpose of developing their land. 4. The grievances of the plaintiffs were that the defendant-Electricity Board had erected electricity poles through the property belongs to the plaintiffs. 5. The learned counsel for the appellants mainly contended that such an erection of electricity pole was done without even issuing a notice to the plaintiffs, which is mandatory under Section 12 of the Electricity Act. It is further contended that in the event of a proposal for erection of electricity poles by the Electricity Board, the persons who are likely to be affected are entitled for notice and the Authorities Competent are bound to consider their objections, if any submitted. However, in the present case, no such notice was issued to the plaintiffs, enabling them to submit their objections in respect of erection of electricity poles via the property belongs to the plaintiffs. 6. Under these circumstances, the plaintiffs were constrained to institute a civil suit for permanent injunction and for mandatory injunction. The Trial Court found that the Electricity Act provides power to the Authorities to erect electricity poles for the benefit of the consumers of electricity in that locality. Thus, there is no error in respect of the erection of electricity poles by the Electricity Board in that locality. 7. The view taken by the Trial Court is confirmed by the First Appellate Court and the First Appellate Court also found that the erection of electricity poles by the Electricity Board was for the benefit of the consumers of electricity in that locality and therefore, no interference is called for. Challenging the said judgment and decree, the present Second Appeal has been filed. 8.
Challenging the said judgment and decree, the present Second Appeal has been filed. 8. The question of law on which the Second Appeal was admitted is that “Whether the Courts below are correct in dismissing the suit without properly appreciating Section 12 of the Indian Electricity Act, 1910? 9. The learned counsel for the appellants emphasised that a show cause notice under Section 12 of the Electricity Act is mandatory. Any person affected or likely to be affected, is entitled to get a notice and submit their objections for erection of electricity poles in their property. However, the defendants had not established before the Trial Court that such a notice contemplated under Section 12 was issued to the plaintiffs nor they have received any objections from the plaintiffs for the purpose of commissioning the electricity poles in the property belongs to the plaintiffs. 10. This Court raised a question that whether the Civil Court has got jurisdiction to entertain a civil suit in view of an express bar contemplated under Section 145 of the Electricity Act. Section 145 of the Electricity Act, stipulates that “Civil Courts not to have jurisdiction, no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an Assessing Officer referred to in Section 126 or an Appellate Authority referred to in section 127 or the Adjudicating Officer appointed under this Act is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Electricity Act.” The remedial measures are provided under the Electricity Act itself. 11. This apart, the Consumer Grievance Redressal Forum under Clause 18 of the Tamil Nadu Electricity Supply Code, is also functioning for the purpose of redressing the grievances of the consumers of electricity as well as the persons aggrieved from and out of the actions of the Electricity Board. 12. The Consumer Grievance Redressal Forum was constituted by virtue of Clause 18 of the Tamil Nadu Electricity Supply Code.
12. The Consumer Grievance Redressal Forum was constituted by virtue of Clause 18 of the Tamil Nadu Electricity Supply Code. When the remedial measures are available under the provisions of the Electricity Act as well as under the Tamil Nadu Electricity Supply Code, this Court is of an opinion that the Civil Court cannot exercise its jurisdiction for the adjudication of such disputes touching the provisions of the Electricity Act under Section 145 of the Electricity Act. 13. There is an express bar on Civil Courts for entertaining a suit in respect of the disputes in relation to the Electricity Act. However, both the Trial Court as well as the First Appellate Court had not framed the issue in relation to the jurisdiction of the Civil Courts to entertain the suit with reference to the provisions of the Electricity Act and further the parties to the lis also had not raised the issue before the Trial Court as well as before the First Appellate Court. Thus, this Court is inclined to consider the issue of bar of jurisdiction on Civil Courts contemplated under Section 145 of the Electricity Act. 14. The learned counsel for the appellants also states that the notice mandated under Section 12 of the Electricity Act had not been complied with by the Competent Authorities. Therefore, the plaintiffs are entitled for the relief, as such, sought for in the civil suit. However, the erection of electricity poles for providing electricity service connection is an essential service and even if the plaintiffs are aggrieved, it is left open to the plaintiffs to approach the competent Appellate Forum constituted under the provisions of the Electricity Act as well as the Consumer Grievance Redressal Forum. 15. Contrarily, the Civil Court ought not to have entertained the civil suit for the purpose of adjudicating the provisions of the Electricity Act. Admittedly, the electricity poles were commissioned long back, and almost two decades completed. Under these circumstances, it may not be proper on the part of the High Court to unsettle the electricity poles, which were commissioned long back to the advantage of the users of the electricity in that locality. 16. It is made clear that if the plaintiffs are still aggrieved, it is left open to them to approach the Competent Authorities under the provisions of the Electricity Act or Tamil Nadu Electricity Supply Code.
16. It is made clear that if the plaintiffs are still aggrieved, it is left open to them to approach the Competent Authorities under the provisions of the Electricity Act or Tamil Nadu Electricity Supply Code. However, in respect of the question of law raised in the present Second Appeal, this Court is of an undoubted opinion that the express bar contemplated under Section 145 of the Electricity Act, is applicable and accordingly, the suit itself is barred by the provisions of the Special Act. When there is an express bar in the Special Act, general provisions cannot be applied for the purpose of entertaining the suit. 17. In view of the express bar under Section 9 of the Code of Civil Procedure, the Subordinate Courts have committed an error in entertaining the civil suit for adjudication of the issues in connection with the provisions of the Electricity Act. Thus, the judgment and decree passed by the Subordinate Courts can be sustained only in respect of the merits adjudicated and in addition to that, this Court is of an opinion that the suit itself is expressly barred and is liable to be dismissed. 18. Accordingly, the judgment and decree passed in A.S. No.80 of 1997 dated 27.2.2003 on the file of Sub Court, Kancheepuram, confirming the judgment and decree dated 3.6.1996 passed in 1242 of 1990 Additional District Munsif Court, Kancheepuram, is confirmed and the Second Appeal stands dismissed. However, it is made clear that it is left open to the appellant in the Second Appeal to approach the appropriate authorities, if any, grievances exist even now. There shall be no order as to costs.