Electricity Board, Jabalpur. Vs. M/S. Vijaya Timber Co  INSC
1560 (5 December 1996)
Punchhi, K. Venkataswami. K. Venkataswami J.
in Civil Suit. No.9-A/67 on the file of the Court of Civil Judge. Class-I, Rajandgaon,
has suffered a decree at the hands of the trial Judge, directing the removal Of
the electric line with poles situated in the land bearing Kh. No. 908/2 area
1.32 acres at village Nandai. In addition to that, the appellant was also directed
to pay a sum of Rs.1770/- towards past damages and to pay future damages @ 5/-
per day to the plaintiff (respondent-herein) from the date of institution of
suit till the removal of electric line.
by decree, an appeal was preferred to the first Additional District judge, Durg,
at Rajnadgaon, The appellate court dismissed the appeal by judgment and decree
dated 5.2.1984. Still aggreived, he preferred a second appeal in the High Court
of Madhya Pradesh, Jabalpur. The High Court modified the decree
by removing the mandatory injunction directing the defendant to remove the
electric line with poles but sustained the decree for damages, past and future.
The above appeal is directed against the judgment and decree of the High Court.
Sishoia, learned counsel appearing for the appellant attempted to argue the
appeal by raising a point which was neither raised in the pleadings nor argued
in the courts below, namely, that the suit was barred by limitation. As this
question to limitation on the facts of this, case was not one of pure question
of law- but a mixed question of fact and law, we did not permit the learned counel
to raise this point for the first time before us.
learned counsel for the appellant. therefore, has to confine his argument as to
the bar of the suit as raised before the High Court. BY referring to Sections
12. 1",, and 52 of Indian Electricty Act, learned counsel submitted that
the suit, as filed in the present case was barred. In other words, according to
the learned counsel, the civil Court could not adjudicate the dispute raised in
the suit for which remedies and forum are provided under the Act itself and the
plaintiff/respondent ought to have pursued those remedies before the forum
mentioned in the Act. The contention of the learned counsel for the appellant
was that in view of the forum provided in the Act for resolving the dispute,
the suit must be taken to have been barred impliedly under Section 9 of the
Code of Civil Procedure.
appreciating the above contention, minimal facts may now be noted.
grievance of the plaintiff/respondent was that in the land belonging to him
which has been set apart for industrial use, the appellant Board had taken 33
KV high tension transmission lines over the construction already started in the
said land without its consent and as such the erection was unauthorised and
liable to be removed. The defence was that there was no erection when the high
tension transmission lines were taken through the land and the plaintiff/respondent
never objected for taking those lines.
the findings of all the three courts are to the effect that the transmission
lines were laid without the plaintiff's consent after the plaintiff has already
constructed portion of its saw mill, that the overhead transmission lines are
likely to endanger the property of the plaintiff, that there was no sanctioned
scheme for the transmission lines and that the plaintiff suffered damages @ 5/-
light of above concurrent findings of all the three courts. we do not think
that there is any case for the appellant to sustain the defence it has taken in
the written statement.
High Court has given a finding after referring to Section 12 of the Electricity
Act, 1910 as well as the provisions of the Electricity (Supply) Act, 1948, that
the provisions of latter Act have no application to the facts of the case as
admittedly, the tranmission lines were not laid under any approved scheme. The
High Court further held that the appellant Board having laid the transmission
lines without taking the consent of the plaintiff, cannot be treated as having
acted in accordance with the provisions of the lndian Electricity Act to take
shelter under those provisions. Therefore according to the High Court. the
remedy of the plaintiff was not to take recourse under the provisions of the
Act but to file a civil suit for compensation/damages under the common law. In
support of this conclusion, the High Court has relied on a judgment of the
Madras High Court in S.M.E.S. Corpn. vs. Jagannatha (AIR 1960 Madras 374) and
also Another judgment of this Court in Amalgamated Electricity Co. vs. N.S. Bathena
(AIR 1964 sc 1598).
well-settled that the exclusion of jurisdiction of civil court cannot be
readily inferred and the normal rule is that civil courts have jurisdiction to
try all suits of a civil nature except those of which cognizance by them is
either expressly or impliedly excluded. A Constitution Bench of this Court in Dhulabhai
vs. State of M.P. ( 1968 3 SCR 663) had laid down
several propositions in this regard.
first proposition is apposite for the facts of this case. lt reads as under:
Where the Statute gives finality to the orders of the special tribunals, the
civil court's jurisdiction must be held to be excluded, if there is adequate
remedy do in What the civil court would normally do in a suit. Such a
Provision, however, does not exclude those cases where, the provision of the
particular Act have not been complied with or the statutory tribunal has not acted
in conformity with the fundamental principles of judical procedure." In
the light of the findings of the courts below which we have extracted above. we
do not think that the High Court has committed any error in holding that the
suit was maintainable and also granting the modified relief.
parting with the case. we may observe that we gave an opportunity to the
appellant to settle the matter outside the court but the learned counsel
appearing for the appellant after getting instructions reported that the
settlement was not possible. It is unfortunate. In the result the appeal is
dismissed. However, there will no order as to costs.
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