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PETITIONER: M.P. ELECTRICITY BOARD, JABALPUR.

       Vs.

RESPONDENT: M/S. VIJAYA TIMBER CO.

DATE OF JUDGMENT:       05/12/1996

BENCH: M.M.  PUNCHHI, K. VENKATASWAMI.

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      K.VENKATASWAMI J.      The appelltant/defendant  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.      Aggrieved 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.      Shri Pallav  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.      The 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

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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.      For appreciating  the above  contention, minimal  facts may now be noted.      The 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. However, 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/- day.      In the  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.      The 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).      It is  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. The first  proposition is  apposite for  the facts  of  this case. lt reads as under:      "(1)  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

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    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.      Before 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.