Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 18019 in LC Suit No.11319
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.180 of 2019
(CNR No.MHCC010009482019)
IN
LONG CAUSE SUIT NO.113 OF 2019.
(CNR No.MHCC010002912019)
Prabhakar Menka Shetty }...PLAINTIFF.
Versus
MSEDCL & Ors. }...DEFENDANTS.
Shri.Gandhi, learned advocate for the plaintiffs.
Smt. Kamlapurkar, learned advocate for defendant No.1
Shri.Tembe, learned advocate for defendant No.2, 3 & 7.
CORAM: HIS HONOUR JUDGE SHRI. P.P.RAJVAIDYA (C.R.NO.12)
O R A L O R D E R
(Delivered on 25/04/2019)
1. By filing this Notice of Motion, plaintiff has prayed to
restrain defendant No.1 by an order of perpetual injunction from
interfering with and/or disturbing into the peaceful possession of the
plaintiff over the suit land. Relief is also claimed to restrain defendant
No.1 from carrying out any digging work, laying of cables, erecting
transformer and/or carrying on any work whatsoever on the suit land
without following the procedure prescribed under law. Read the
affidavit filed in support of the Notice of Motion and reply filed by the
defendants. Heard learned Shri.Gandhi advocate for plaintiff, learned
Smt.Kamlapurkar advocate for defendant No.1 & learned Shri.Tembe
advocate for defendant Nos.2, 3 & 7. Perused the entire record.
2. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
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POINTS FINDINGS
i)Whether primafacie case lies in favour of the
plaintiff? ...No.
ii)Whether balance of convenience lies in favour
of the plaintiff? ...No.
iii)Whether irreparable loss will cause to the
plaintiff if injunctions as prayed are not granted? ...No.
iv)What order? ...As per final order.
R E A S O N S
AS TO POINT NOs.(i) TO (iii):
3. All the points are taken together for consideration. Learned
advocate for plaintiff argued that plaintiff is in possession of the suit
land bearing survey No.142/2, CTS NO.572 (Plot No.5) & Survey
No.137, CTS No.573 since last more than 40 years on the basis of
agreement of sale dt.20/06/1975 executed in favour of the plaintiff by
the owner of the said property. He argued that predecessor Michael of
defendant Nos.2 to 7 has purchased adjoining property bearing Survey
No.142/1, CTS No.569 admeasuring 9,410 sq.m. but said Michael has
amalgamated the 16,000 sq.m. area of plaintiff's property in the said
adjoining property & newly formed CTS Nos.569/1 to 22 forming an
area of 25,710 sq.m. & said Michael & his legal heirs have started
making claim in respect of the said property. He argued that said
Michael has filed Suit No.783/1994 for specific performance of contract
in respect of said property wherein, interim order is passed by Hon'ble
High Court on thee basis of statement made by present defendant Nos.2
to 7 that they will not develop plot Nos.5, 18 & 20 and said suit is still
pending despite it, defendant No.1 has placed transformer on the suit
land in or around June/July2018 without intimating anything to the
plaintiff hence, plaintiff had applied for police protection against the
illegal acts of the defendants due to which, defendant No.1 has shifted
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the transformer to adjoining plot bearing CTS No.572. He argued that
defendant No.1 is required to follow the procedure prescribed in Rule 3
of Maharashtra Electricity Work & Licensees Rules, 2012 which
prescribes that consent of the owner or occupier of the land or of
Collector shall be obtained for undertaking the work of electric supply
line but defendant No.1 has not taken consent of plaintiff and under the
guise of the so called consent given by defendant Nos.2, it is trying to
install transformer in the suit property. He argued that defendant Nos.2
to 7 are falsely claiming ownership over the land where the transformer
is being installed. He argued that since the due procedure of law is not
followed by defendant No.1 and since defendant No.1 is trying to
illegally put the additional transformer in the suit property, it is
necessary to grant temporary injunctions in favour of the plaintiff,
pending final disposal of the suit.
4. As against this, learned advocate for the defendant No.1
argued that there is no question of obtaining consent of the plaintiff &
consent of defendant No.2 is obtained by defendant No.1 for
installation of the transformer as additional transformer is being
installed in land CTS No.569 and not in land CTS No.572 of plaintiff.
She argued that additional transformer has to be installed to fulfill the
increased need of electricity putforth by defendant No.2 & defendant
No.1 is performing its lawful duty in that regard. She argued that it is
not necessary to obtain consent of owner of the land for installation of
transformer as is prescribed in Section 164 of Electricity Act & ratio to
that effect is laid down by Hon'ble Apex Court in a Judgment
dt.14/12/2016 in Civil Appeal No.10951 of 2016 in a matter between
Power Grid Corporation Vs. Century Textiles Industries Ltd.. I have
gone through said authority.
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5. Learned Advocate for defendant Nos.2, 3 & 7, on the other
hand, argued that plaintiff has no locus to file the suit as transformer is
being installed in the land CTS No.569 of the defendant Nos.2 to 7. He
argued that plaintiff has not produced any authentic map or other
material to show that CTS No.569 is part of plaintiff's property. He
further argued that plaintiff is unnecessarily trying to stall the work of
installation of additional transformer & hence, plaintiff is not entitled
for interim injunction. In support of his argument, learned advocate for
defendant Nos.2, 3 & 7 has placed reliance on the following authorities.
i)Judgment dt.14/12/2016 of Hon'ble Supreme Court in Civil Appeal
No.10951 of 2016 in a matter between Power Grid Corporation Vs.
Century Textiles Industries Ltd.,
ii)Judgment dt.25.08/2009 of Hon'ble Madras High Court in S.A.
S.A.No.1292 of 1995 in a matter between R.Sujatha Babu Vs. The
Superintending Engineer Vellore Electricity System Vellore & ors..
I have gone through those authorities.
6. It does not appear to be in dispute that predecessor Michael
of defendant Nos.2 to 7 has purchased adjoining property bearing
survey No.142/1, CTS No.569. Contention of the plaintiff is that said
Michael has amalgamated 16,000 sq.m. area of suit property into said
purchased property & extended its area from 9410 sq.m. to 25,710
sq.m.. It does not appear to be in dispute that SubDivisional Officer
had sanctioned subdivision of larger area, order of SDO was set aside in
appeal by Deputy Collector against which, appeal was filed before the
Additional Commissioner by the predecessor Michael of defendant No.2
to 7. It also does not appear to be in dispute that said appeal was
allowed & order of Deputy Collector was set aside. It also does not
appear to be in dispute that order passed by Additional Commissioner
was confirmed by Principal Secretary of Government on 24/09/1998. It
is also not in dispute that plaintiff had filed Writ Petition No.1125/2007
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which is dismissed by Hon'ble High Court & Hon'ble High Court is
pleased to observe that the title of the plaintiff in respect of the suit
property is still to be perfected by an adjudication in the suit for specific
performance filed by the plaintiff.
7. Plaintiff's contention is that owner of the suit property has
executed General Power of Attorney in favour of the plaintiff in respect
of suit property on 27/09/1978 & heirs of said owner have confirmed
execution of agreement of sale dt.20/06/1975 by their predecessor in
favour of plaintiff by executing agreement dt.03/12/1988. Plaintiff has
further contended that he has filed Suit No.2883/1985 for specific
performance of agreement dt.20/06/1975 against the heirs of owner of
suit property & said suit is still pending. Plaintiff has claimed himself to
be the owner of the suit property which contention of the plaintiff is not
acceptable for the reason that Suit No.2883/1985 filed by the plaintiff
for specific performance of agreement dt.20/06/1975 is still pending for
decision & claim of ownership of the plaintiff over the suit property is
yet to be adjudicated. May that it be so, it will have to be seen whether
the material on record is sufficient for accepting the contention of the
plaintiff that defendant No.1 is trying to install additional transformer
in the property possessed by the plaintiff?
8. Contention of plaintiff is that said additional transformer is
being installed in the suit property. In the facts and circumstances of the
matter, it was essential for the plaintiff to produce on record proper
material to show that additional transformer is in fact being installed in
the suit property belonging to the plaintiff. Perusal of the plaint shows
that plaintiff has not given four boundaries of suit property anywhere.
Again, plaintiff has not produced any material to show that the area of
suit property is ever got measured by him. Reliance of the plaintiff is on
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the copies of layout plans.
9. Learned Advocate for the plaintiff has taken me through
the copies of layout plans produced on record by the plaintiff & argued
that it clear from those layout plans that additional transformer is
being installed in the suit property. I have perused those layout plans.
Name or signature of the person are not available on those plans who
prepared those layout plans due to which, those plans are not prima
facie sufficient at this stage for accepting that those plans are correctly
prepared. On the other hand, defendant Nos.2, 3 & 7 have produced
coloured xerox of certified copy of sanctioned layout plan of CTS
No.569/1 to 22 which is issued by the office of City Survey & perusal of
said plan prima facie shows that the place where additional transformer
is being installed is part of CTS No.569 & not a part of the suit property.
Again, even if it is accepted that said plan also does not show the
correct position, as mentioned earlier, it was essential for the plaintiff
himself to produce on record proper material to prima facie show that
additional transformer is being installed in the suit property possessed
by the plaintiff but the material produced by the plaintiff falls short to
show it & hence, contention of the plaintiff in that regard is not
acceptable, at least, at this stage of the proceeding.
10. Learned advocate for plaintiff argued that it is necessary for
defendant No.1 to obtain consent of the plaintiff for installation of
transformer as per Rule3 of Maharashtra Electricity Work of Licensees
Rules. Perusal of said Rule shows that the work for placing electric
supplyline may be carried out with prior written consent of the owner
or occupier of the property or of the Collector. As mentioned earlier,
plaintiff's contention is not acceptable that he is owner of the suit
property due to which, there is no question of obtaining his consent in
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capacity of owner of the land. Again, plaintiff has not produced
sufficient material to show that he is occupier of the area where the
transformer is being installed due to which, the contention of plaintiff is
prima facie not acceptable that it is essential for defendant No.1 to
obtain consent of the plaintiff for installation of additional transformer.
Furthermore, plaintiff himself has contended in para3.6 of plaint that
Michael has purchased CTS No.569. Defendant No.1 has contended that
transformer is being installed in CTS No.569 & it has obtained consent
of defendant No.2 for installation of said additional transformer and
laying of cable through CTS No.569.
11. Plaintiff has produced some photographs however, those
photographs do not bear the date to show as to when those
photographs are obtained hence, those photographs cannot be regarded
as prima facie proof of the position available at the site as on the day of
filing of the suit due to which, those photographs are not helpful to the
plaintiff. Learned advocate for defendant Nos.2, 3 & 7 argued that the
work of laying the entire electric cable has already been completed.
Defendant No.2 has made a statement to that effect in his affidavit in
reply. Plaintiff has not filed any rejoinder to deny said statement due to
which, said uncontroverted statement of defendant No.2 is prima facie
acceptable hence, there is no question of accepting the prayer of
plaintiff to restrain defendant No.1 from laying cables.
12. As mentioned earlier, plaintiff has not produced sufficient
material to prima facie show that defendant No.1 is installing the
additional transformer in the suit property. Additional transformer is
being installed to fulfill the increase in need of electricity. As is held by
Hon'ble Madras High Court in a case of R.Sujatha Babu Vs. The
Superintending Engineer Vellore Electricity System Vellore & ors.
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cited above on which reliance is placed by learned advocate for
defendant Nos.2, 3 & 7, erection of transformer & drawing of electricity
lines forms part of a project meant for public purpose. The work
undertaken by defendant No.1 for installation of additional transformer
cannot be said to be illegal especially because, plaintiff has failed to
prove that additional transformer is being installed in the property
occupied by the plaintiff. Having regards to all those things, I hold that
neither primafacie case nor balance of convenience do lie in favour of
the plaintiff. In the result, there is no question of causing any
irreparable loss to the plaintiff if, injunctions as prayed are not granted
in his favour. For these reasons, holding that plaintiff is not entitled for
the interim injunctions as are claimed by him, I recorded my findings on
Point Nos.(i) to (iii) accordingly and pass the following order.
O R D E R
Notice of Motion No.180 of 2019 stands rejected.
Costs in the main cause.
Date: 25/04/2019. (P.P.RAJVAIDYA)
Dictated on : 25/04/2019. Judge, C.R.No.12,
Checked on : 30/04/2019. City Civil Court,
Signed on : 30/04/2019. Gr.Bombay.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
30.04.2019 at 11.30 a.m. Mrs. Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI.P.P.RAJVAIDYA (CR No.12)
Date of pronouncement of Order 25/04/2019
Order signed by P.O. on 30/04/2019
Order uploaded on 30/04/2019
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