The Superintending Engineer vs S.Anand
2023 Latest Caselaw 9578 Mad

                                                                                    C.R.P.No.1235 of 2023 &
                                                                                    C.M.P.No.15301 of 2023

                                      IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       DATED: 03.08.2023

                                                             CORAM:

                                   THE HON'BLE Mrs.JUSTICE V.BHAVANI SUBBAROYAN

                                            C.R.P.No.1235 of 2023 &
                                            C.M.P.No.15301 of 2023
                     The Superintending Engineer
                     TNEB/CEDC/Central
                     Valluvar Kottam
                     Chennai – 600 034                                               ...Petitioner
                                                      Vs.
                     1. S.Anand
                     2. Ravichandran                                                 ...Respondents

                                  Civil Revision Petition filed under Article 227 of the Constitution of

                     India to set aside the order dated 07.02.2023 passed in E.A.No.5166 of

                     2018 in E.P.No.1108 of 2009 in O.S.No.4788 of 2001 on the file of learned

                     X Assistant Judge, City Civil Court, Chennai and set aside the same and

                     allow the E.A.No.5166 of 2018

                                        For Petitioner   : Mr.S.T.Raja
                                        For Respondents : No appearance for R1
                                                          Unclaimed - R2

                                                            ORDER

The Civil Revision Petition has been filed to set aside the order dated

07.02.2023 passed in E.A.No.5166 of 2018 in E.P.No.1108 of 2009 in

O.S.No.4788 of 2001 on the file of learned X Assistant Judge, City Civil

Court, Chennai and set aside the same and allow the E.A.No.5166 of 2018

2. The brief facts of the case is that the 1st respondent, who is the https://www.mhc.tn.gov.in/judis

C.R.P.No.1235 of 2023 & C.M.P.No.15301 of 2023

plaintiff, has preferred O.S.No.4788 of 2001 as against the petitioner / 1st

defendant and 2nd respondent / 2nd defendant directing to shift the

transformer to some other place from Blocks A & B in No.4, New no.13,

Babu Rajendra Prasad, 1st street, West Mambalam, Chennai – 600 034

and direct the petitioner / 1st defendant to remove the service connection to

the premises no.15/2 and 15/3, Rajendra Prasad 1st street, Chennai from

the transformer installed in the premises bearing Door No.13, Babu

Rajendra Prasad Street, Chennai – 33 and to direct the petitioner / 1st

defendant to pay a sum of Rs.10,800/- with interest at the rate of 12% per

annum, from the date of plaintiff till the date of payment and further, to

direct the 1st defendant to pay damages of Rs.9,000/- together with interest

at 12% per annum from the date of plaint. After contest, the suit was partly

decreed by allowing to transfer the transformer, situated at Block A and B

and the charges for transferring the same was ordered be paid by the 2nd

respondent to the petitioner. Accordingly, the 1st respondent preferred

E.P.No.1108 of 2009 to execute the order passed in O.S.No.4788 of 2001,

the petitioner preferred E.A.No.5166 of 2018 against the execution petition,

the said appeal was dismissed. As against the same, the petitioner has

come up with the present Petition.

3. The learned counsel for the petitioner submits that the court below https://www.mhc.tn.gov.in/judis

C.R.P.No.1235 of 2023 & C.M.P.No.15301 of 2023

failed to note that the direction to the 2nd respondent / J.D.1 to bear the

charges towards shifting of transformer, unless deposit of shifting charges

is paid, revision petitioner is barred by the Tamilnadu Supply Code to

proceed further. The court below ought to have appointed advocate

commissioner to inspect the premises to note availability or directed the 1st

respondent to provide alternative site to erect the transformer, without

removing the transformer would be burden for occupiers of the apartment

without supply, to do their day to day activities.

4. Lastly, the learned counsel for the petitioner would submit that the

court below failed to note that the execution court cannot travel behind the

decree. As per decree cost to be paid by the 2nd respondent to shift the

transformer, unless cost is deposited and place for shifting is identified,

decree cannot be executed.

5. Though notice was served on the 1st respondent as early as on

27.04.2023, there is no representation for the 1st respondent, either in

person or through learned counsel. Further, notice sent to the 2nd

respondent was unclaimed,

6. On going through the averments made in the petition as well as in https://www.mhc.tn.gov.in/judis

C.R.P.No.1235 of 2023 & C.M.P.No.15301 of 2023

the suit, it is seen that originally suit was filed for mandatory injunction by

the 1st respondent against the petitioner / 2nd defendant and 2nd respondent

/ 1st defendant praying to direct the petitioner / 2nd defendant to shift the

transformer to some other place from Block A & B, No.4, New No.13, Babu

Rajendra Prasad 1st Street, West Mambalam, Chennai.

7. It is pertinent to point out that the 1st respondent and his father,

viz., V.Suvesham, had entered into an agreement to develop the property

and appointed 2nd respondent / 1st defendant as their Power of Attorney

agent and registered as document no.594 dated 03.06.1999 before the

Sub Registrar, T.Nagar and the undertaking was given by the 2nd

respondent for allotment of space for erection of a new distribution

transformer at the consumers premises dated 06.12.2000, based on which

transformer was erected and supply was given. The 1st respondent cleverly

filed a above said suit and obtained a Judgment and Decree dated

09.1.2007 directing the petitioner / 2nd defendant to shift the trasformer from

the existing area to any other place and the shifting charges shall be paid

to the petitioner by the 2nd respondent. Subsequently, the 1st respondent

filed E.P.No.1108 of 2009 seeking to direct the petitioner to shift the

trasformer at the cost of 2nd respondent. As against the same, E.A. Was

filed and in the said E.A., the 2nd respondent remained exparte and the

Execution Court directed the petitioner to shift the transformer and recover https://www.mhc.tn.gov.in/judis

C.R.P.No.1235 of 2023 & C.M.P.No.15301 of 2023

the charges from the 2nd respondent.

8. It is necessary to extract the relevant provisions of Tamilnadu

Electricity Distribution Code No.37, which is as follows:

“37. Shifting of Service Connection : The cost of shifting a new service connection for which line is laid but service connection is yet to be effected shall be borne by the intending consumer. The intending consumer shall pay the above charges in advance in full. The shifting work will be taken up only after the payment is made. The estimate will cover the following: -

(a) Charges for dismantling at the old site.

(b) Charges for transport from the old site to the new site.

(c) Charges for re-erection at the new site. 1 [(d) Depreciated value of retrievable materials, if any, not used at the site should be credited to the consumer.

(e) Cost of new materials including transport, if required

(f) Cost of irretrievable materials at depreciated value.]

(g) Overhead charges. 2 [With regard to shifting of existing service connection, the consumer shall pay all the arrears due to the Licensee, apart from the above shifting charges.] The above provisions would enunciate that the Electricity Board cannot

shift the transformer and give a separate supply on the grievance putforth

by the customer.

https://www.mhc.tn.gov.in/judis

C.R.P.No.1235 of 2023 & C.M.P.No.15301 of 2023

9. Further, it is brought to the notice of this Court that as per

Tamilnadu Electricity Distribution Code No.12 “for any building / premises

required LT service connections having either (a total floor area of

900Sq.m an above (excluding the suit floor / basement floor) or (b) the total

demand of all the LT services in the buiding exceeds 150KW”, clause (a)

(b) clearly says that the landlord would give 10m*4 or 5m * 5M open space

shall be provided within the consumer premises preferably at the main

entrance for installing structure mounted distribution transformer and

associated switchgear” The 2nd respondent gave land in the entrance for

erecting transformer. After obtaining undertaking bond, installation and

service charges, the petitioner erected transformer in the common passage

in front of A&B block and supply was given on 20.02.2001, after completing

erection, the petitioner's job was over, this was known to all the owners in

the building. As per the bond between the Power agent and the builder, it

is clear that the petitioner will not tamper or remove erecting in future and

to vacate the space, etc., provided and now, 1st respondent contends that

in the EP as if they erected the transformer without knowledge. On

completion of building, the flats are handed over to owners and electricity

connection are changed to owner's name, all these facts are suppressed.

When the 1st respondent filed a suit for transfer of said transformer to some

other place, the court below has clearly stated that the shifting charges will

be paid by the 2nd respondent / JD1 to petitioner / JD2 and after payment, https://www.mhc.tn.gov.in/judis

C.R.P.No.1235 of 2023 & C.M.P.No.15301 of 2023

the same will be transfered to some other place.

10. Besides the above, the petitioner cannot on its own shift the

transformer, unless, they receive the payment from the parties concerned.

The direction of the court below that the charges at actuals should be

collected from 2nd respondent / JD1 is not feasible and the said 2nd

respondent has not even received the notice, which was sent by the court

and also it is seen that the power of attorney holder / builder after sale of

the property and construction of the building, would have completed his job

and would have washed his hands off while passing the order. It is also

clearly seen that the 1st respondent / decree holder being owner of the

property, who have entered into agreement with the 2nd respondent / JD1

for construction of flats and selling the same, would have been very well

aware about the pros and cons of the entering into a bond with

TANGEDCO.

11. At this junture, the court below has not considered all these

aspects, but directed the Electricity Board to remove the said structure, that

too without the payment. There is no possibility of erecting and collecting

the charges from the person, who has got nothing to do at present, with the

said TANGEDCO. The owners, who are in occupation, if they are having

any disturbance, it is their duty to pay appropriate fees to the said https://www.mhc.tn.gov.in/judis

C.R.P.No.1235 of 2023 & C.M.P.No.15301 of 2023

authorities. Notice was issued but the respondents have not appeared and

name was also printed in the cause list. Hence this Court, is inclined to set

aside the order dated 07.02.2023 passed by the trial court in E.A.No.5166

of 2018 in E.P.No.1108 of 2009. If the 1st respondent / decree holder is

agreed to pay the cost, the said TANGEDCO can proceed further and

thereafter, the 1st respondent can recover it from 2nd respondent / JD1.

That apart, alternative place to be marked by the decree holder.

In the result, the present Civil Revision Petition is allowed.

Consequently, connected miscellaneous petition is closed. No costs.

03.08.2023

Index : Yes/no Speaking order :Yes/No ssd

To

The X Assistant Judge, City Civil Court,

Chennai

https://www.mhc.tn.gov.in/judis

C.R.P.No.1235 of 2023 & C.M.P.No.15301 of 2023

V.BHAVANI SUBBAROYAN J.

ssd

C.R.P.No.1235 of 2023 & C.M.P.No.15301 of 2023

03.08.2023

https://www.mhc.tn.gov.in/judis