Sri Varaguna Pandeeswarar Temple vs Suzlon Developers Pvt.
2021 Latest Caselaw 4100 Mad

                                                                             S.A.(MD)No.7 of 2021

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED: 17.02.2021

                                                     CORAM

                              THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

                                            S.A.(MD)No.7 of 2021
                                                    and
                                           C.M.P.(MD)No.96 of 2021

                Sri Varaguna Pandeeswarar Temple,
                Radhapuram, through its
                Executive Officer,
                Radhapuram, Tirunelveli.                                  : Appellant

                                                       Vs.

                1.Suzlon Developers Pvt., Limited,
                  through its Director,
                  Tirunelveli District.

                2.The Superintending Engineer (Construction),
                  Wind Energy,
                  Tamilnadu Electricity Board, Maharaja Nagar,
                  Tirunelveli.                                            : Respondents

                PRAYER:- Second Appeal filed under Section 100 of Code of Civil Procedure,
                to set aside the judgment and decree passed in A.S.No.35 of 2014 dated
                30.08.2019 on the file of the Subordinate Court, Valliyoor and allow the Second
                Appeal by confirming the judgment and decree passed in O.S.No.54 of 2007,
                dated 26.11.2013 on the file of the Additional District Munsif Court, Valliyoor.


                          For Appellant               :Mr.S.Chellapandian
                                                      ****

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                                                                                S.A.(MD)No.7 of 2021

                                                     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

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S.A.(MD)No.7 of 2021

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

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S.A.(MD)No.7 of 2021

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.

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S.A.(MD)No.7 of 2021

R.SUBRAMANIAN, J.

cmr

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

17.02.2021

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