Case Note & Summary
The litigation arose from a civil suit filed by the plaintiff-respondent, owner of land bearing Kh. No. 908/2, area 1.32 acres at village Nandai, against the appellant Electricity Board for unauthorised laying of 33 KV high tension transmission lines over the land which was set apart for industrial use and where a saw mill had already been partially constructed. The trial court decreed removal of the electric line with poles and awarded past damages of Rs. 1770 plus future damages at Rs. 5 per day from institution of suit until removal. The first appellate court dismissed the Board's appeal on 5.2.1984. The High Court modified the decree by setting aside the mandatory injunction for removal but sustained the damages, both past and future. The Board then appealed to the Supreme Court. The appellant's counsel initially attempted to argue that the suit was barred by limitation, but the Court refused permission as limitation was a mixed question of fact and law not raised earlier. The appellant then contended that the suit was barred under Sections 12, 18 and 52 of the Indian Electricity Act because the Act provided a special forum and remedies, and therefore the civil court's jurisdiction was impliedly excluded under Section 9 CPC. The courts below had concurrently found that the transmission lines were laid without the plaintiff's consent after the saw mill construction had begun, the overhead lines were likely to endanger the plaintiff's property, there was no sanctioned scheme for the lines, and the plaintiff suffered damages at the rate of Rs. 5 per day. The High Court held that the Electricity (Supply) Act, 1948 had no application because the lines were not laid under any approved scheme, and the Board could not take shelter under the Indian Electricity Act as it had not complied with its provisions. The High Court relied on Madras High Court and Supreme Court precedents to hold that the plaintiff's remedy was a civil suit for compensation under common law. The Supreme Court affirmed the principle that exclusion of civil court jurisdiction cannot be readily inferred and that where statutory provisions have not been complied with, the civil court's jurisdiction is not ousted, citing Dhulabhai v. State of M.P. (1968 3 SCR 663). The Court found no error in the High Court's decision that the suit was maintainable and in granting the modified relief. The Court observed that it had given an opportunity for settlement but none was possible. The appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Exclusion of Civil Court Jurisdiction - Civil Court Jurisdiction Not Ousted Where Statutory Provisions Not Complied With - Code of Civil Procedure, 1908, Section 9 - The dispute concerned a civil suit for mandatory injunction and damages against an electricity board for unauthorised laying of 33 KV high tension transmission lines over the plaintiff's land. The Court held that exclusion of civil court jurisdiction cannot be readily inferred and the normal rule is that civil courts have jurisdiction to try all suits of a civil nature except where expressly or impliedly excluded. Applying Dhulabhai v. State of M.P., the Court found that since the board had not acted in compliance with the Electricity Act and had not operated under an approved scheme, the suit was maintainable. Held that the High Court correctly held the suit maintainable (Paras 5-6). B) Electricity Law - Unauthorised Transmission Lines and Statutory Protection - Sections 12, 18, 52 of Indian Electricity Act, 1910; Electricity (Supply) Act, 1948 - The appellant board contended that the suit was barred because the Act provided a special forum and remedies. The courts below concurrently found that the transmission lines were laid without the plaintiff's consent, after construction of a saw mill had begun, were likely to endanger property, and were not laid under any sanctioned scheme. The High Court held that the board could not take shelter under the statutory provisions because it had not complied with them, and the plaintiff's remedy was a civil suit for compensation under common law. Held that the High Court committed no error in granting modified relief of damages (Paras 3-5). C) Civil Procedure - New Plea in Appeal - Limitation as Mixed Question of Fact and Law - Code of Civil Procedure, 1908 (general appellate practice) - The appellant attempted to argue for the first time before the Supreme Court that the suit was barred by limitation. The Court refused permission because the question of limitation on the facts was not a pure question of law but a mixed question of fact and law. Held that the appellant could not raise the new plea and had to confine arguments to the bar of suit as raised before the High Court (Para 2).
Issue of Consideration
Whether the civil court had jurisdiction to entertain the suit for mandatory injunction and damages against the Electricity Board for unauthorised laying of high tension transmission lines, or whether the suit was barred by provisions of the Indian Electricity Act, 1910 and impliedly barred under Section 9 of the Code of Civil Procedure, 1908; and whether the appellant could raise the plea of limitation for the first time before the Supreme Court.
Final Decision
The appeal was dismissed with no order as to costs. The Supreme Court affirmed the High Court's judgment and decree, which had sustained the award of past and future damages while setting aside the mandatory injunction for removal of the electric line. The Board remained liable for the damages as determined by the courts below.
Law Points
- Exclusion of civil court jurisdiction cannot be readily inferred
- civil courts have jurisdiction to try all suits of a civil nature except expressly or impliedly excluded
- where statutory provisions not complied with civil suit maintainable
- Electricity Board cannot claim statutory protection for unauthorised lines without approved scheme or consent
- new plea of limitation as mixed question of fact and law cannot be raised for first time in Supreme Court
