Allowed

The Superintending Engineer v. S. Anand

Madras HC3 Aug 2023CRP/1235/2023

Case brief

AI extract

What is this about?

The High Court allowed the Civil Revision Petition set aside the lower court order directing removal of a transformer. The Court held the executing authority cannot shift the transformer without payment of shifting costs to the utility, as per the Tamilnadu Electricity Distribution Code. The shifting cost should be paid by the decree holder before execution to the Electricity Board.

What did the court decide?

The order dated 07.02.2023 passed in E.A.No.5166 of 2018 in E.P.No.1108 of 2009 was set aside. The connected miscellaneous petition was closed.

The Superintending Engineer Vs S. Anand — Property and Title | Madras HC (2023)

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

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 03.08.2023

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CORAM:

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THE HON'BLE Mrs.JUSTICE V.BHAVANI SUBBAROYAN

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

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The Superintending Engineer TNEB/CEDC/Central Valluvar Kottam Chennai – 600 034 ...Petitioner

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Vs.

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S.Anand

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Ravichandran ...Respondents

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Civil Revision Petition filed under Article 227 of the Constitution of

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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

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

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allow the E.A.No.5166 of 2018

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

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O R D E R

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

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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

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Court, Chennai and set aside the same and allow the E.A.No.5166 of 2018 https://www.mhc.tn.gov.in/judis

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

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The brief facts of the case is that the 1^st respondent, who is the plaintiff, has preferred O.S.No.4788 of 2001 as against the petitioner / 1^st defendant and 2^nd respondent / 2^nd defendant directing to shift the transformer to some other place from Blocks A & B in No.4, New no.13, Babu Rajendra Prasad, 1^st street, West Mambalam, Chennai – 600 034 and direct the petitioner / 1^st defendant to remove the service connection to the premises no.15/2 and 15/3, Rajendra Prasad 1^st street, Chennai from the transformer installed in the premises bearing Door No.13, Babu Rajendra Prasad Street, Chennai – 33 and to direct the petitioner / 1^st defendant to pay a sum of Rs.10,800/- with interest at the rate of 12% per annum, from

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the date of plaintiff till the date of payment and further, to direct the 1^st 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 2^nd respondent to the petitioner. Accordingly, the 1^st 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.

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

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

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The learned counsel for the petitioner submits that the court below failed to note that the direction to the 2^nd 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 1^st 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.

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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 2^nd respondent to shift the transformer, unless cost is deposited and place for shifting is identified, decree cannot be executed.

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Though notice was served on the 1^st respondent as early as on 27.04.2023, there is no representation for the 1^st respondent, either in

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person or through learned counsel. Further, notice sent to the 2^nd respondent was unclaimed,

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

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6. On going through the averments made in the petition as well as in the suit, it is seen that originally suit was filed for mandatory injunction by the 1^st respondent against the petitioner / 2^nd defendant and 2^nd respondent / 1^st defendant praying to direct the petitioner / 2^nd defendant to shift the transformer to some other place from Block A & B, No.4, New No.13, Babu Rajendra Prasad 1^st Street, West Mambalam, Chennai.

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It is pertinent to point out that the 1^st respondent and his father, viz., V.Suvesham, had entered into an agreement to develop the property and appointed 2^nd respondent / 1^st 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 2^nd 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 1^st respondent cleverly filed a above said suit and obtained a Judgment and Decree dated 09.1.2007 directing the petitioner / 2^nd 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 2^nd respondent. Subsequently, the 1^st respondent filed E.P.No.1108 of 2009 https://www.mhc.tn.gov.in/judis

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

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seeking to direct the petitioner to shift the trasformer at the cost of 2^nd respondent. As against the same, E.A. Was filed and in the said E.A., the 2^nd respondent remained exparte and the Execution Court directed the petitioner to shift the transformer and recover the charges from the 2^nd respondent.

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It is necessary to extract the relevant provisions of Tamilnadu

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

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“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: -

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(a) Charges for dismantling at the old site.

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

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(c) Charges for re-erection at the new site. 1

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[(d) Depreciated value of retrievable materials, if any, not used at the site should be credited to the consumer.

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

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

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(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.]

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

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The above provisions would enunciate that the Electricity Board cannot shift

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the transformer and give a separate supply on the grievance putforth by the customer.

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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 2^nd 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, 1^st respondent contends that in https://www.mhc.tn.gov.in/judis

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

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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 1^st 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 2^nd respondent / JD1 to petitioner / JD2 and after payment, the same will be transfered to some other place.

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Besides the above, the petitioner cannot on its own shift the transformer, unless, they receive the payment from the parties concerned.

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The direction of the court below that the charges at actuals should be collected from 2^nd respondent / JD1 is not feasible and the said 2^nd 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 1^st respondent / decree holder being owner of the property, who have entered into agreement with the 2^nd 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.

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

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

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

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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 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 1^st respondent / decree holder is agreed to pay the cost, the said TANGEDCO can proceed further and thereafter, the 1^st respondent can recover it from 2^nd respondent / JD1. That apart, alternative place to be marked by the decree holder.

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In the result, the present Civil Revision Petition is allowed. Consequently, connected miscellaneous petition is closed. No costs.

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03.08.2023

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

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

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The X Assistant Judge, City Civil Court,

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Chennai

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V.BHAVANI SUBBAROYAN J.

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ssd

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

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

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03.08.2023

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The Superintending Engineer v. S. Anand

Case brief

What is this about?

What did the court decide?

The Superintending Engineer v. S. Anand

Case brief

What is this about?

What did the court decide?

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