Madras High Court
Appellant vs R.Seerangan on 5 March, 2024
S.A.Nos.468 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 05.03.2024 Pronounced on: 15.03.2024
CORAM
THE HONOURABLE MR. JUSTICE P.B.BALAJI
S.A.Nos.468 of 2017
and
CMP. No.11672 of 2017
Tamil Nadu Transmission Corporation Limited
Represented by
Superintending Engineer,
General Construction Circle,
TNEB, Udayapatti, Salem.
(Cause-Title amended as per
Memo SR. No.8664 of 2024
dated 05.03.2024)
...Appellant
Vs.
1.R.Seerangan
2.Santhamani
...Respondents
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure to set aside the judgment and decree dated 20.01.2017 made in
A.S.No.97 of 2016 on the file of the Principal District Judge of Erode,
1/18
https://www.mhc.tn.gov.in/judis
S.A.Nos.468 of 2017
confirming the Judgment and Decree dated 16.04.2015 made in O.S.
No.131 of 2010 on the file of the Subordinate Judge, Gopichettipalayam.
For Appellant : Ms.Hemalatha
Standing Counsel
For Respondents : Mr.T.Murugamanickam for
Mrs.Zeenath Begum
JUDGMENT
The Electricity Board, having been unsuccessful in defending the plaintiff’s claim for compensation before the trial Court as well as the First Appellate Court, is the appellant herein.
2. The suit was originally filed by the respondents against Tamil Nadu Electricity Board. However, in view of restructure of the Tamil Nadu Electricity Board in the year 2010, the appellant, Tamil Nadu Transmission Corporation Limited, has been formed and recording the memo filed by the appellant on 05.03.2024, I have ordered amendment of the Cause –Title to incorporate the name, Tamil Nadu Transmission Corporation Limited, represented by Superintending Engineer, General Construction Circle, TNEB, Udayapatti, Salem in the place of Tamil Nadu Electricity Board, 2/18 https://www.mhc.tn.gov.in/judis S.A.Nos.468 of 2017 Superintending Engineer, General Construction Circle, TNEB, Udayapatti, Salem.
3. The parties are described as per their litigative status before the trial Court.
4. The plaintiff filed a suit seeking a sum of Rs.2,89,750/- towards compensation for the loss of income from 21 Coconut Trees, 100 Banana Trees, 2 Drumstick Trees and 64 Neem Trees, totaling in all, Rs.2,89,750/-. According to the plaintiffs, the defendant had installed High Tension Tower line in March 2010, over the plaintiffs’ field thereby, suffering loss. Though the plaintiffs admitted that the defendant had paid a compensation to the tune of Rs.1,34,250/-, the same was inadequate and grossly low compared to the net income that the trees would yield and after adjusting the compensation paid to them, the claim was made for Rs.2,89,750/-.
5. The defendant resisted the said claim stating that they had taken 3/18 https://www.mhc.tn.gov.in/judis S.A.Nos.468 of 2017 into account all relevant factors before making payment of the compensation, and in fact, the compensation already paid was very liberal and no enhanced compensation need be paid by them. It is also contended by the learned counsel for the defendant that the suit is barred under the provisions of Section 164 of the Electricity Act, 2003 and Section 16 (3) of the Indian Telegraphic Act, 1885, which stipulate that the plaintiffs ought to have filed the suit only before the learned Principal District Judge, Erode. The defendant, therefore, prayed for dismissal of the suit.
6. The trial Court, after assessing the oral evidence adduced by the parties and documentary evidence filed on the side of plaintiffs, decreed the suit for a sum of Rs.2,20,000/-, to be paid together with interest at 9 % per annum, from the date of suit, till the date of decree and thereafter, at the rate of 6% per annum.
7. The defendant preferred an Appeal. The First Appellate Court also confirmed the findings of trial Court, holding that the suit was 4/18 https://www.mhc.tn.gov.in/judis S.A.Nos.468 of 2017 maintainable and the plaintiffs were entitled to Rs.2,20,000/- together with interest.
8. Aggrieved by the concurrent findings of the Courts below, the defendant has come up by way of the present Second Appeal.
9. On 26.07.2017, the above Second Appeal was admitted on the following substantial question of law:-
“ Whether the Courts below are right in adopting 20 years multiplier for fixing the compensation for the yield of Coconut trees?”
10. I have heard Mrs.Hemalatha, learned Standing Counsel for the appellant and Mr.T.Murugamanickam, learned Senior Counsel for Mrs.Zeenath Begum, learned counsel for the respondents.
11. The learned counsel for the appellant would state that adequate compensation had already been paid to the respondents and they are not eligible for any enhancement. She would also stress on the point of 5/18 https://www.mhc.tn.gov.in/judis S.A.Nos.468 of 2017 jurisdiction of the Court, placing reliance on the Indian Telegraph Act, 1885, especially, Section 16 (3) of the Act. She would also place reliance on the decision of the Hon’ble Supreme Court in the case of Kerala State Electricity Board Vs. Livsha and others reported in (2007) 6 SCC 792, with regard to the multiplier that has been adopted by the Courts being grossly excessive. She would therefore, pray for the Second Appeal being allowed.
12. Per contra, the learned Senior Counsel Mr.T.Murugamanickam, would state that the defendant ought to have taken the issue of jurisdiction as a preliminary issue and having participated in the trial and also filed an Appeal, at this stage, the suit cannot be thrown out on the ground of lack of jurisdiction. He would also place reliance on the very same judgment that has been relied by the learned counsel for the appellant and state that the Hon’ble Supreme Court has clearly stated that payment of compensation in such cases would depend on the facts and circumstances of each case and therefore, the fact that multiplier of 8 years has been adopted by the Hon’ble Supreme Court, cannot be universally applied in all cases for compensation. 6/18 https://www.mhc.tn.gov.in/judis S.A.Nos.468 of 2017 The learned Senior Counsel would therefore pray for dismissal of the Second Appeal, as the Courts below have rightly applied their mind and in fact, have not decreed the suit as prayed for by the plaintiffs, but chose to grant a decree only for Rs.2,20,000/-.
13. In order to appreciate the objection with regard to jurisdiction, I would have to necessarily place reliance on Sections 10 & 16 of the Indian Telegraphic Act, 1885, the said provisions are extracted hereunder:
“.........
10. Power for telegraph authority to place and maintain telegraph lines and posts.—The telegraph authority may, from time to time, place and maintain a telegraph line under, over, along or across, and posts in or upon, any immovable property:
Provided that—
(a) the telegraph authority shall not exorcise the powers conferred by this section except for the purposes of a telegraph establish Ector maintained by the 1[Central Government], or to be so established or maintained;
(b) the 1[Central Government] shall not acquire any right other than that of user only in the property under, over, along, across, in or upon which the telegraph authority places any telegraph line or post;
(c) except as hereinafter provided, the telegraph authority shall not exercise those powers in respect of any property vested in or under the control or management of any local authority, without the permission of that authority; and
(d) in the exercise of the powers conferred by this section, the telegraph authority shall do as little damage as possible, and, when it has exercised those powers in respect of any property other than that referred to in 7/18 https://www.mhc.tn.gov.in/judis S.A.Nos.468 of 2017 clause (c), shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers.
.............
16. Exercise of powers conferred by section 10, and disputes as to compensation, in case of property other than that of a local authority.— (1) If the exercise of the powers mentioned in section 10 in respect of property referred to in clause (d) of that section is resisted or obstructed, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them.
(2) If, after the making of an order under sub-section (1), any person resists the exercise of those powers, or, having control over the property, does not give all facilities for their being exercised, he shall be deemed to have committed an offence under section 188 of the Indian Penal Code (45 of 1860).
(3) If any dispute arises concerning the sufficiency of the compensation to be paid under section 10, clause (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him. (4) If any dispute arises as to the persons entitled to receive compensation, or as to the proportions in which the persons interested arc entitled to share in it, the telegraph authority may pay into the Court of the District Judge such amount as he deems sufficient or, where all the disputing parties have in writing admitted the amount tendered to be sufficient or the amount has been determined under sub-section (3), that amount; and the District Judge, after giving notice to the parties and hearing such of them as desire to be heard, shall determine the persons entitled to receive the compensation or, as the case may be, the proportions in which the persons interested are entitled to share in it.
(5) Every determination of a dispute by a District Judge under sub-section (3) or sub-section (4) shall be final:
Provided that nothing in this sub-section shall affect the right of any person to recover by suit the whole or any part of any compensation paid by the telegraph authority, from the person who has received the same.” 8/18 https://www.mhc.tn.gov.in/judis S.A.Nos.468 of 2017
14. No doubt, when there is a dispute concerning sufficiency of compensation to be paid under Section 16 (3), the dispute shall be decided by a District Judge, within whose jurisdiction the property is situate.
15. Even though, the appellant has raised this plea of lack of jurisdiction in the written statement, the defendant has not taken any earnest steps to have the issue of jurisdiction decided as a preliminary issue. Section 21 of the Code of Civil Procedure and Order 14 Rule 1 CPC would assume significance in the present facts and circumstances.
16. Section 21 of the Code of Civil Procedure, 1908 relates to objections to jurisdiction, the same is extracted hereunder:
“ Section 21 -Objections to jurisdiction.
(1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.
2[(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
9/18 https://www.mhc.tn.gov.in/judis S.A.Nos.468 of 2017 (3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.”
17. Testing the Second Appeal, especially relating to the objection regarding jurisdiction in the light of Section 21 CPC, I find that even though an objection has been raised with regard to the place of suing before the Court of first instance and also at the earliest possible opportunity, by filing a written statement to such effect, in terms of the mandate of Section 21 CPC, the objection should be raised before the issues are settled and wherever it is raised after the issues are settled, the objections regarding place of suing cannot be entertained, unless there has been a consequent failure of justice.
18. Order XIV Rule 2 runs thus:
“ 2. Court to pronounce judgment on all issues.— (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if the issue 10/18 https://www.mhc.tn.gov.in/judis S.A.Nos.468 of 2017 relates to—
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.”
19. Wherever an issue of jurisdiction has been raised as an objection, the Court may proceed to dispose of such issue first and postpone settlement of other issues also until the preliminary issue has been determined and depending on the decision with regard to the preliminary issue, the Court may thereafter deal with the suit insofar as the other issues are concerned.
20. Therefore, reading Section 21(1) together with Order XIV Rule 2 CPC, in my considered opinion, it was not merely sufficient for the defendant to have stated that the place of suing was incorrect and consequently, the suit was liable to fail. The defendant ought to have called upon the Court to decide the issue of jurisdiction as a preliminary issue, in terms of Order XIV Rule 2 CPC. Admittedly, the defendant herein has not 11/18 https://www.mhc.tn.gov.in/judis S.A.Nos.468 of 2017 taken any such steps. On the contrary, the defendant has participated in a full-fledged trial and the defendant has also filed a statutory Appeal under the Civil Procedure Code, 1908, challenging the judgment and decree of the trial Court. Even before the First Appellate Court, the defendant has raised the issue of jurisdiction/place of suing and the said arguments did not find favour with the First Appellate Court as well.
21. In view of the above, I do not find any failure of justice, as a result of the Courts below deciding the suit, contrary to the provisions of the Indian Telegraph Act, 1882. Therefore, the objection regarding jurisdiction cannot be agitated at the second appellate stage, especially having been unsuccessful before the trial Court as well as the First Appellate Court, on the specific issue. Moreover, even the substantial of question of law was framed only with regard to the multiplier to be adopted and not jurisdiction.
22. Coming to the question of adopting 20 years multiplier, instead of 8 years multiplier, the learned counsel for the appellant would place strong reliance on the decision of the Hon’ble Supreme Court referred 12/18 https://www.mhc.tn.gov.in/judis S.A.Nos.468 of 2017 herein supra. The Hon’ble Supreme Court has decided a claim for compensation arising under dispute between the claimants and Kerala State Electricity Board. The relevant paragraphs are extracted hereunder:
“11. So far as the compensation in relation to fruit bearing trees are concerned the same would also depend upon the facts and circumstances of each case. We may, incidentally, refer to a recent decision of this Court in Land Acquisition Officer, A.P. v. Kamandana Ramakrishna Rao & Anr. reported in 2007 AIR SCW 1145 wherein claim on yield basis has been held to be relevant for determining the amount of compensation payable under the Land Acquisition Act, same principle has been reiterated in Kapur Singh Mistry v. Financial Commission & Revenue Secretary to Govt. of Punjab & Ors. 1995 Supp. (2) SCC 635, State of Haryana v. Gurcharan Singh & Anr.1995 Supp. (2) SCC 637, para 4, and Airports Authority of India v. Satyagopal Roy & Ors. (2002) 3 SCC 527. In Airport Authority (Supra), it was held :-
"14. Hence, in our view, there was no reason for the High Court not to follow the decision rendered by this Court in Gurucharan Singh's case and determine the compensation payable to the respondents on the basis of the yield from the trees by applying 8 years' multiplier. In this view of the matter, in our view, the High Court committed error apparent in awarding compensation adopting the multiplier of 18."
12. We are, therefore, of the opinion that the High Court should consider the matter afresh on the merit of each matter having regard to the fact situation obtaining therein. The impugned judgments, therefore, cannot be sustained. These are set aside accordingly. The matters are remitted to the High Court for consideration thereon afresh. The appeals are allowed. In the facts and circumstances of the case, there shall be no order as to costs.”
23. Referring to the above, the learned counsel for the appellant 13/18 https://www.mhc.tn.gov.in/judis S.A.Nos.468 of 2017 would state that the correct multiplier would be adopted for compensation on the basis of yield from the fruit-bearing trees would have to be only 8 years multiplier.
24. I have gone through the judgment of the Hon’ble Supreme Court. As rightly contended by the learned Senior Counsel, the Hon’ble Supreme Court has clearly stated that insofar as compensation in relation to fruit- bearing trees are concerned, the same would depend upon the facts and circumstance of each case. Though Hon’ble Supreme Court has referred to an earlier apex Court decision in the case of Land Acquisition Officer Vs. Kamadana Ramakrishna Rao reported in (2002) 3 SCC 526, where the Hon’ble Supreme Court found fault with the High Court for applying a multiplier 18 instead of 8, in the concluding paragraph, the Hon’ble Supreme Court only remitted the matter back to the High Court to decide the claim afresh on merits, having regard to facts and situation.
25. The very same judgment of the Hon’ble Supreme Court also laid 14/18 https://www.mhc.tn.gov.in/judis S.A.Nos.468 of 2017 down that situs of land, distance between the high voltage electricity line laid, the extent of line thereon and the fact whether the high voltage line passes over the tract of land or through the middle of the land and other relevant facts would have determined value and the value of the land would also be a relevant factor because in a given situation, the owner of the land may loose his substantive right to use the property for the purposes for which the same was meant to be used.
26. From the above, it is clear that there can be no straight jacket formula in freezing the multiplier at 8 years. If that was the ratio laid down by the Hon’ble Supreme Court in the above case, there would not have been a necessity for remand and the Hon’ble Supreme Court would have straight away applied a multiplier of 8 and allowed the Appeal. Therefore, I do not find the ratio laid down by the Hon’ble Supreme Court in the above Kerala State Electricity Board’s case, referred herein supra, helping the appellant in any manner.
27. Admittedly, the land over which the High Tension lines have been 15/18 https://www.mhc.tn.gov.in/judis S.A.Nos.468 of 2017 installed are fruit yielding, rich cultivable lands. The Courts below have rightly taken note of the actual loss of income as a result of the installation of High Tension line and have not even blindly decreed the suit as prayed for. Therefore, I do not find any patent error, illegality or irregularity in the concurrent findings rendered by the Courts below warranting interference under Section 100 CPC. Consequently, the substantial question of law is answered against the appellant and in favour of the respondents. In fine, the Second Appeal is dismissed. Consequently, connected Miscellaneous Petition is also dismissed. There shall be no order as to costs.
15.03.2024
Index :Yes/No
Internet : Yes/No
Neutral Citation :Yes/No.
Speaking order/Non-speaking order
rkp
To
1.Principal District Judge, Erode.
2.The Subordinate Judge, Gopichettipalayam.
16/18
https://www.mhc.tn.gov.in/judis
S.A.Nos.468 of 2017
P.B.BALAJI, J.
rkp
S.A.Nos.468 of 2017
and
CMP. No.11672 of 2017
17/18
https://www.mhc.tn.gov.in/judis
S.A.Nos.468 of 2017
15.03.2024
18/18
https://www.mhc.tn.gov.in/judis