Madras High Court
Dr.P.J.Alexander vs The Superintending Engineer-I on 20 November, 2013
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.11.2013
CORAM
THE HONOURABLE MR. JUSTICE S.MANIKUMAR
W.P.No.3709 of 2012
Dr.P.J.Alexander,
Secretary,
Dr.Alexandar Educational Foundation,
Pitchaiveerampet,
Moolakulam Puducherry. ... Petitioner
Vs.
1.The Superintending Engineer-I,
Puducherry Electricity Department,
137 N.S.C. Bose Road,
Puducherry 1.
2.The Executive Engineer IV,
Puducherry Electricity Department,
137 N.S.C. Bose Road,
Puducherry 1.
3.The Assistant Engineer,
Puducherry Electricity Department,
Boomianpet, Puducherry 5.
4.The Trustee,
Sam Paul Educational Trust,
Moolakulam,
Oulgaret Municipality,
Puducherry.
5.The Chairman,
Christ College of Engineering Technology,
Moolakulam,
Oulgaret Municipality,
Puducherry.
6.The Station House Officer,
Reddiarpalayam Police Station,
Reddiarpalayam, Puducherry. ... Respondents
PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of mandamus to direct the respondents 1 to 3, their men, agents, servants, subordinates or any one acting under them, to remove all erections, including transformers, networks, electrical connections, meters and other accessories, required to give electricity connection to the building belonging to the respondents 4 and 5, situated on the eastern portion of R.S.No.82/3, Oulgaret Revenue Village, Oulgaret Commune, Muthupalayam, Puducherry and pass such further orders.
For Petitioner : Mr.T.T.Ravichandran
For R1 to R3 & R6 : Mrs.N.Mala, GA (P)
For R4 & R5 : Mr.B.Rabumanohar
ORDER
The Trustee of Dr.Alexandar Educational Foundation has filed the writ petition for a mandamus to direct the Superintendent Engineer-I, Puducherry Electricity Department, Puducherry-1, The Executive Engineer-IV, Puducherry Electricity Department, Puducherry -1 and the Assistant Engineer, Puducherry Electricity Department, Puducherry-5 / respondents 1 to 3 respectively, to remove all the erections, including transformers, networks, electrical connection, meters and other accessories, required to provide electricity connection to the building belonging to Sam Paul Educational Trust, Moolakulam, Oulgaret Municipality, Puducherry and Christ College of Engineering Technology, Moolakulam, Oulgaret Municipality, Puducherry, respondents 4 and 5 respectively, situated on the eastern portion of R.S.No.82/3, Oulgaret Revenue Village, Oulgaret Commune, Muthupalayam, Puducherry.
2. It is the case of one of the Trustees, deponent in this writ petition that the Trust wanted to start an Educational Institution by name " Pant College of Engineering". They have obtained the necessary recognition from the All India Council for Technical Education. They have purchased properties from Mr.Harikrishnan and his son Mr.H.Narayanaswamy. The vendors had also agreed that no construction, either permanent or temporary, would be erected on the eastern side portion of the property sold to the Trust.
3. The Trust has further submitted that All India Council for Technical Education, New Delhi, has granted approval for commencement of courses and when the officials of Puducherry University visited the property on 20.06.2003, the vendors of the property, namely, Mr.K.Harikrishnan and Mr.H.Narayanaswamy, started interfering with the inspection and obstructed the officials. The vendors of the property, along with their henchman also started to erect pillar on the eastern side portion of the land reserved for use of the land, and attempts were made to put up permanent structure on 02.11.2004.
4. In the above said circumstances, the petitioner was constrained to file O.S.No.486 of 2004 on the file of the learned Additional Subordinate Judge, Puducherry, for protection of enjoyment of easementary rights of the Trust. In respect of easementary rights, pertaining to E-Schedule property, the Trust prayed for a permanent injunction, restraining the defendants, their men and agents or any one claiming among them, from interfering with the plaintiff's right of enjoyment of E-Schedule property, as a pathway to reach A, B, C and D Schedule property, from the main road with an easement of necessity. E-Schedule property, in the plaint, is as follows:
"E' SCHEDULE: Pondicherry R.D. Oulgaret Sub R.D., Village No.35, Olgaret Revenue Village, (Muthupillaipalayam), Oulgaret Commune Panchayat, wet land bearing on the East of A, B, C and D Schedule properties a passage belonging to the defendants to an extent of 15 = ft. In breadth to an length of 153 mts. North to South."
5. The petitioner has further submitted that the suit in O.S.No.468 of 2004 on the file of the learned Additional Sub-Judge, Puducherry was transferred to II Additional District Munsif Court, Puducherry and renumbered as O.S.No.1211 of 2005. As the original vendors did not file any written statement, they were set exparte by the learned District Munsif on 21.4.2005 and thereafter, considering the evidence adduced by the plaintiff/ writ petitioner, the learned District Munsif, Puducherry, has granted a decree for permanent injunction restraining the defendants therein, not to interfere with the rights of the petitioner, in respect of E-Schedule property, as pathway to reach A, B, C and D schedule properties from the main road. According to the writ petitioner, the judgment and decree made in O.S.No.1211/2005, dated 21.4.2006, was not challenged, and thus, it has reached a finality.
6. The deponent of the supporting affidavit has further submitted that the Trustee, Sam Paul Educational Trust, Moolakulam, Oulgaret Municipality, Puducherry, and the Chairman, Christ College of Engineering Technology, Moolakulam, Oulgaret Municipality, Puducherry / respondents 4 and 5 respectively, who had allegedly purchased the lands in R.S.No.82/3, Oulgaret Village, by way of sale deed dated 20.12.2004, from Mr.A.Narayanasamy and Mr.A.Sakthivel, sons of Mr.K.Harikrishnan, the 1st defendant in O.S.No.1211/2005, have encroached into the eastern portion of the property, situated in S.No.82/3, and despite the objections made by the writ petitioner, they have erected building and compound wall. They have also put up a iron gate preventing the petitioner from having access to the petitioner's lands. The petitioner has further contended that, being aggrieved by the encroachment of easementary rights and violation of the decree stated supra, the Trust has filed E.P.No.9 of 2008 on the file of the learned District Munsif, Puducherry, under Order 21 Rule 32 C.P.C., seeking to punish the vendors of the petitioner and other Trustees. Though in the supporting affidavit, the petitioner has contended that the said Execution Petition is pending, Mr.T.T.Ravichandran, learned counsel for the petitioner is not aware, as to its present status of Execution Petition. The original vendor Mr.K.Harikrishnan, died on 1.3.2005, pending disposal of E.P.No.9 of 2008.
7. It is the further case of the petitioner that, during September, 2011, the respondents 4 and 5 have attempted to obtain electricity service connection from Puducherry Electricity Board, illegally and therefore, the petitioner was constrained to send a representation to the Executive Engineer-IV, Puducherry Electricity Department, Puducherry / second respondent herein, as well as to the Chairman and Managing Director of the Puducherry Electricity Board, bringing it to their notice that the officials have illegally erected a transformer in R.S.No.82/3, contrary to the decree passed in O.S.No.1211 of 2005, on the file of the Learned District Munsiff Court, Puducherry. In this regard, the petitioner has also sent a complaint to the Inspector of Police, Reddiarpalayam Police Station, requesting him to take appropriate action for criminal trespass. However, the above said authority has not taken any action. In the above said circumstances, the petitioner is constrained to file the present writ petition for the prayer stated supra.
8. In support of the above said plea, Mr.T.T.Ravichandran, learned counsel for the petitioner, invited the attention of this Court to Article 261 (3) of the Constitution of India, which states that the final judgments or orders delivered or passed by Civil Courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law. According to the learned counsel for petitioner, there is a decree in O.S.No.1211 of 2005, dated 21.04.2006, protecting the easementary rights of the petitioner, in respect of 'E' schedule property. Therefore, when the decree passed by a Competent Court has been brought to the notice of respondents 1 to 3, they are bound by the said decree, in terms of which, structures erected in R.S.No.82/3 should be removed.
9. Per contra, based on the counter filed by the Trustee, Sam Paul Educational Trust, Puducherry, and the Chairman, Christ College of Engineering Technology, Puducherry, / respondents 4 and 5 respectively, Mr.B.Rabu Manohar, learned counsel for the respondents 4 and 5 made a preliminary objection to the maintainability of the writ petition on the ground that facts placed before the Court involve, adjudication of mixed questions of facts and law and therefore, the remedy available to the petitioner is only before the Court of competent Civil Jurisdiction and that a writ, under Article 226 of the Constitution of India, would not lie. In addition to the preliminary objection on the maintainability, learned counsel for the respondents 4 and 5 further submitted that the total area of land in R.S.Survey No.82/3, Oulgaret Commune, Puducherry, is 5.61 acres, and that the original title holder for the said land was one Mr.K.Harikrishnan. According to the learned counsel, the petitioner seemed to have purchased 5.10 acres of land from the above said Mr.K.Harikrishnan. The fourth respondent-Trust has purchased 51 cents of land, which includes, a common area of land, measuring 18 cents, purchased by both the writ petitioner and the fourth respondent Trust, to be used as a common pathway. This common pathway lies between Survey No.82, owned by the writ petitioner and the land in Survey No.83/1, said to have been purchased from Mr.Narayanasamy, son of Harikrishnan.
10. Learned counsel for respondents 4 and 5 further submitted that the petitioner has an entry to his land, on the northern side of Survey No.82/3. According to the learned counsel for respondents 4 and 5, the writ petitioner has suppressed the fact that he has an entry of more than 15 ft., on the northern side of his property. It is the further case of the respondents 4 and 5 that they have purchased the property, measuring 51 cents, by way of a registered sale deed dated 28.12.2004, from Mr.Narayanasamy and Mr.Sakthivel, who are brothers, which includes the common pathway. Though they have purchased the property way back in 2004, the writ petitioner ought to have chosen to implead them, as party respondents in the suit in O.S.No.486 of 2004, filed against Mr.Harikrishnan and Mr.Narayanasamy, father and son respectively, for a declaration of the petitioner's right to the property viz. 'E' schedule, as easement of necessity. The suit was, subsequently, transferred to the file of the learned II Additional Munsif and re-numbered as O.S.No.1211 of 2005, and came to be disposed of only on 21.04.2006.
11. According to the learned counsel for respondents 4 and 5, the said decree has been obtained only against Mr.Harikrishnan and his son Mr.Narayanasamy, without impleading the respondents 4 and 5, and therefore, it is not binding on them. Learned counsel for the respondents 4 and 5 further submitted that structures have been erected in Survey No.83/1 and not erected in the pathway, at Survey No.82/3, as claimed by the writ petitioner. It is also stated that the writ petitioner has put up a small bridge on the eastern side of his property, from the road and has complete access to his property. On the above pleadings, he has prayed for dismissal of the writ petition.
12. The Executive Engineer-IV, Puducherry Electricity Department, Puducherry / second respondent herein, in his counter affidavit, has submitted that already one L.T. Commercial electricity service connection is existing in the name of Mr.S.R.Sampaul, Sampaul Educational Trust, Perambai Road, Pitchaveeranpet, with a connected load of 37.810 KW, effected vide Policy No.139560/A1 and Code No.31-85-01-0181A, on 06.07.2007. A proposal for conversion of the existing L.T. Commercial service into H.T. Service with a CMD of 220 KVA, in favour of M/s. Christ College of Engineering and Technology at R.S.Nos.82/3, 82/3PT, 86/4A/1, 83/1, 85/1, 82/5, 83/2, 85/2, 89/2A, 1A/1/4 and 86/4B, Muthupillaipalayam, Moolakulam, Oulgaret Revenue Village, Puducherry, was received by the electricity department and administrative sanction was also granted on 04.05.2011. The point of supply, proposed to M/s.Christ College of Engineering and Technology, Puducherry, and the plan has been approved by the Member Secretary, Puducherry Planning Authority, vide approval No.PPA/430/152/Z/SB/411-2010, dated 11.03.2010, and that the same was also approved by the Electrical Contractor, A Grade, Puducherry License No.1/CA/96.
13. M/s.Christ College of Engineering and Technology, has made the payment on 13.05.2011, and thereafter, the work of erection of double pole structure, was taken up by the department, during September, 2011. According to the second respondent, in the case of every H.T. Connection, the transformer erection work and its allied double pole structures, would come under the consumer's side, and that the electricity department had not erected the transformer, at the place, alleged by the writ petitioner. However, the department has received an objection letter from the writ petitioner and also a legal notice dated 13.10.2011. Thereafter, the department has stopped the work.
14. The Executive Engineer-II, Puducherry Electricity Department, Puducherry / the second respondent herein, has further stated that the department has received another legal notice from the petitioner's advocate on 19.12.2011. In response to the same, the department has sent a letter dated 29.12.2012, directing the petitioner to send ownership documents, along with FMB copy of the lands, in which Dr.Alexandar Educational Foundation has claimed to have a right in R.S.No.82/3, Muthupillaipalayam Village, Oulgaret Municipality. But, the petitioner has not submitted the above said documents. It is also the case of the Executive Engineer-II, Puducherry Electricity Department, Puducherry / the second respondent herein, the department has not erected any transformer, panel room and consumer double pole structure, in the property in R.S.No.82/3. According to the second respondent, respondents 1 to 3 are not necessary parties. In the abovesaid circumstances, he has prayed for dismissal of the writ petition.
15. Heard the learned counsel for the parties and perused the material on record.
16. Before adverting to the rival contentions on merits, in the light of averments in the affidavit and counter affidavits filed by the parties to this lis, wherein the structures have been stated to be erected only in Survey No.83/1 and not in Survey No.82/3, at the outset, this Court deems it fit to consider, whether it would be appropriate to decide the disputed questions of fact, in this writ petition. In this context, it is pertinent to refer to paragraph 7 of the supporting affidavit, wherein the petitioner has contended that he has sent a representation dated 19.12.2011 to the Superintending Engineer-I, Puducherry Electricity Department, Puducherry / first respondent herein, to take action for removal of all the illegal structures erected in R.S.No.82/3 for the purpose of granting electricity service connection with the buildings, belonging to the respondents 4 and 5. However, in the prayer portion, the writ petitioner has sought for removal of the transformer, networks, etc. erected, to give electricity connection to the buildings of the respondents 4 and 5, situated on the eastern portion of R.S.No.82/3, Oulgaret Revenue Village, Muthupalayam, Puducherry. Even the petitioner is not sure as to whether the structures are on the eastern portion of R.S.No.82/3 or in the same survey no. The Chairman and Managing Trustee of Sam Paul Educational Trust and Chairman of Christ College of Engineering Technology, Moolakulam, Puducherry, in his counter affidavit filed on behalf of respondents 4 and 5, has disputed the alleged erection of transformer, network, etc., in Survey No.82/3. The Executive Engineer-IV, Puducherry Electricity Department, Puducherry / second respondent herein, has also rebutted the allegation of erection of the transformer, construction of small room and the allied works for housing panels, in the disputed portion.
17. As per the version of the petitioner, that his vendors, Mr.Harikrishnan and Mr.Narayanasamy, had agreed not to put up any construction, either permanently or temporary on the eastern side of the property sold to the Trust. Materials on record disclose that though O.S.No.486 of 2004 has been originally instituted against Mr.Harikrishnan and Mr.Narayanasamy, father and son respectively, for a declaration of the petitioner's right to the property in 'E' schedule property as an easement of necessity, the respondents 4 and 5, in their counter affidavit, have submitted that the writ petitioner has already constructed a small bridge on the northern side of his property from the road side and thus has an access to his property. One of the photographs enclosed in the typed set of papers filed by the respondents 4 and 5 indicate that the transformer erected is within the compound of Christ College of Engineering and Technology. In the above said suit, a decree has been granted against Mr.Harikrishnan and his son, Mr.Narayanasamy.
18. What is sought for in this writ petition is to issue a writ of mandamus directing the respondents 1 to 3 to remove the structures, alleged to have been put up on the eastern portion of Survey No.82/3, by the respondents 4 and 5. First of all, the structures are claimed to have been put up in R.S.No.83/1 and not in 82/3. Secondly, the averment in the supporting affidavit are to the effect that his vendors, Mr.Harikrishnan and Mr.Narayanasamy, have agreed not to put up any construction, either permanently or temporary, on the eastern side of the property sold to the Trust. In my humble opinion, it is nothing but a mandatory injunction for removal or an attempt to indirectly execute the decree obtained against the vendors of the respondents 4 and 5, in respect of 'E' schedule property. Admittedly, on the questions relating to infringement of the rights of easement, insofar as 'E' schedule property is concerned, the respondents 4 and 5 have disputed all the averments made in the supporting affidavit to the writ petition. The issue relating to the extent of the land, purchased by the rival parties in this writ petition, the existence of ingress and egress, to the properties said to have purchased by the rival parties, the binding effect of the decree passed by the learned II Additional District Munsif, Pondicherry, in O.S.No.1211 of 2005, dated 21.04.2006, upon respondents 4 and 5, without impleading them as parties, who claim to have purchased the properties, by way of a registered sale deed dated 20.12.2004, are all matters involving evidence. Therefore, as rightly contended by the learned counsel for respondents 4 and 5, this Court is of the view that the issues, now raised in this writ petition, are mixed questions of facts and law, and in such a view of the matter, it would not be appropriate for this Court, to adjudicate the inter-se rights in writ proceedings, under Article 226 of the Constitution of India.
19. Let me consider few decisions, as to whether a writ would lie, when there are disputed questions of fact.
(a) In (1976) 1 SCC 292 (Arya Vyasa Sabha and Ors. v. The Commissioner of Hindu Charitable and Religious Institutions & Endowments, Hyderabad and Ors.) the view taken by the High Court that disputed questions of fact are to be left open to be decided before the Civil Court was upheld by the Supreme Court.
(b) In the decision reported in (2003) 4 SCC 317 (Rourkela Shramik Sangh v. Steel Authority of India Ltd. and Anr.) it is held that the disputed questions of fact could not be entertained in the writ proceedings. In paragraph 19, the Supreme Court held as follows:
"19. The question as to whether the workmen concerned had been continuously working for a period of ten years so as to enable them to derive benefit of the judgment of this Court in R.K. Panda case (1994) 5 SCC 304 was essentially a question of fact...."
In paragraph 22, the Honourable Supreme Court further held as follows:
"22. ...a disputed question of fact normally would not be entertained in a writ proceeding. This aspect of the matter has also been considered by a Constitution Bench of this Court in Steel Authority of India Ltd. v. National Union Waterfront Workers (2001) 7 SCC 1...."
(c) In (2006) 9 SCC 256 (Himmat Singh v. State of Haryana and Ors.), the Honourable Supreme Court held that 'the statement of the appellant or the 5th respondent was correct or not could not ordinarily be tested in writ proceedings and it is well known that in writ petition ordinarily such a disputed question of fact could not be entertained'.
(d) In yet another decision reported in (2007) 7 MLJ 687 (Food Corporation of India v. Harmesh Chand), the Supreme Court held as follows:
"Since the facts were seriously disputed by the appellant and no factual finding could be recorded without consideration of evidence adduced by the parties, it was not an appropriate case in which the High Court ought to have exercised its writ jurisdiction. The parties could have approached a civil court of competent jurisdiction to adjudicate the matter."
(e) Similarly, the Bombay High Court in Ratanlal Biharilal Atal and Anr. vs Amravati Municipal Corporation (2002 (4) BomCR 123) at paragraph No.17 held as follows:
"17. However, we do not propose to go into the merits of the case in view of the various diverse disputed facts which are raised in this petition. In our view, since there are disputed and mixed question of facts and law, involved in the present petition, the same is not maintainable and we do not propose to exercise our jurisdiction under Articles 226 and 227 of the Constitution of India in this case."
20. Whether a decree for easement obtained in respect of 'E' schedule property, against the vendors of the 'E' schedule property, can be enforced against the buyers, without impleading them in the suit, when purchase by respondents was prior to the decree, and particularly, when their sale deed is stated to have a specific provision for enjoyment of a common pathway, when the allegations of erecting the transformer and allied works in Survey No.82/3 is disputed by the rival contestants and the electricity department, are all matters not to be adjudicated in writ proceedings.
21. In the light of the foregoing decisions, with reference to ambit of writ jurisdiction under Article 226 of the Constitution of India, in matters involving mixed question of fact and law, this Court does not find any valid reason or ground to issue a mandamus, as sought for by the petitioner. Therefore, the writ petition is dismissed. No Costs. M.P.No.1 of 2012 is closed.
Index:yes 20.11.2013
Internet:yes
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To
1.The Superintending Engineer-I,
Puducherry Electricity Department,
137 N.S.C. Bose Road,
Puducherry 1.
2.The Executive Engineer IV,
Puducherry Electricity Department,
137 N.S.C. Bose Road,
Puducherry 1.
3.The Assistant Engineer,
Puducherry Electricity Department,
Boomianpet, Puducherry 5.
4.The Trustee,
Sam Paul Educational Trust,
Moolakulam,
Oulgaret Municipality,
Puducherry.
5.The Chairman,
Christ College of Engineering Technology,
Moolakulam,
Oulgaret Municipality,
Puducherry.
6.The Station House Officer,
Reddiarpalayam Police Station,
Reddiarpalayam, Puducherry.
S.MANIKUMAR, J.
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W.P.No.3709 of 2012
20.11.2013