IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 411 of 1994(G)
1. K.S.E.B.
... Petitioner
Vs
1. K.VIDYADHARAN
... Respondent
For Petitioner :SRI.S.RAMESH BABU, SC. KSEB
For Respondent :SRI.PRAKASH THOMAS
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :17/07/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
S.A.No. 411 OF 1994
............................................
DATED THIS THE 17th DAY OF JULY, 2007
JUDGMENT
Second defendant Kerala State Electricity Board is the
appellant. First respondent is plaintiff and other respondents,
other defendants in the suit. First respondent instituted the suit
seeking a decree for mandatory injunction directing the
appellant Board to shift the 11 KV line which was drawn above
the plaint schedule property belonging to him, contending that it
was drawn without his consent or permission. According to
appellant, the Board has shifted the reallignment from its
original place and drawn above the plaint schedule property
without seeking consent of first respondent and without
complying with the provisions of Electricity Act. In the suit, first
respondent impleaded apart from the Board, the Executive
Engineer, K.S.E.B, Kundara and the District Collector as
defendants. Appellant resisted the suit contending that 3rd
defendant Executive Engineer of Kundara has nothing to do with
the KSEB Transmission Division, Adoor and the suit is bad for
his mis-joinder. It was not contended that suit was bad for non-
joinder of Executive Officer, Adoor Division. It was also
SA 411/1994 2
contended that 11 KV line connecting Mavelikkara and Punalur
sub-stations is passing through the plaint schedule property and
the 11 KV line was drawn long back even before first
respondent purchased the property and it was not drawn
recently as alleged by first respondent and the allignment was
not shifted and therefore first respondent is not entitled to the
decree for mandatory injunction sought for.
2. Learned Munsiff, on the evidence of Pws 1 to4, DW1
and Exts.A1 to A10, Exts.B1 to B5 and Exts.C1 and C2 held that
the suit is not bad for mis-joinder of 3rd defendant and case of
appellant that the line was drawn long back and there was no
reallignment is not correct and evidence of Pws 1 to 4 with DW1
establish that the original of 11 KV line was shifted which was
existing after widening of M.C.Road and as a result it is now
drawn above the plaint schedule property and it was so drawn
without getting the consent or permission of first respondent and
therefore first respondent is entitled to the decree for mandatory
injunction sought for. The suit was decreed. Appellant
challenged the decree and judgment before District Court,
Pathanamthitta in A.S.33 of 1989. Before the first appellate court
SA 411/1994 3
it was contended that as the Executive Engineer of Adoor
Division was not impleaded, suit is bad for his non-joinder. First
appellate court rejected the contention holding that there was no
plea of non-joinder and therefore it cannot be raised before the
appellate court. Learned District Judge also found that as
appellant Board is the second defendant, suit is even otherwise
not bad for non-joinder. Though it was contended that suit is
barred under Section 56 of the Electricity Act, learned District
Judge did not accept the said plea also. Appreciating the
evidence, learned District Judge upheld the findings of learned
Munsiff and dismissed the appeal. It is challenged in the second
appeal.
3. The second appeal was admitted formulating the
following substantial questions of law:-
1)Whether the suit is not bad for non-joinder of necessary
parties.
2)Whether the Section 56 of Indian Electricity Act is a bar to the
suit.
3)Whether a suit notice issued in 1981 will give rise to a cause
of action to institute a suit in 1985.
SA 411/1994 4
4. Learned counsel appearing for the appellant and first
respondent were heard.
5. Learned counsel appearing for appellant argued that as
the Executive Engineer, Adoor Division within whose jurisdiction
the disputed 11 KV line is drawn was not impleaded, the suit is
bad for his non-joinder and the finding of first appellate court is
not correct. Learned counsel further argued that the suit should
have been dismissed as barred under Section 56 of the
Electricity Act as the line was drawn bonafide. Finally, it was
argued that notice was sent in 1981 and therefore cause of
action for the suit could only be of 1981 and the suit instituted
in 1985 is not maintainable. Learned counsel appearing for first
respondent argued that as there was no plea of non-joinder
before the trial court, appellant is precluded from raising that
plea in the second appeal and as the Board is a party to the suit
the suit is not bad for non-joinder and in any case it is not a
substantial question of law. Relying on the decision of Apex
Court in M.P Electricity Board V. Vijaya Timber Company
(1997(1) SCC 68) learned counsel argued that when the line was
drawn without complying with the provisions of Electricity Act,
SA 411/1994 5
the suit is maintainable and as there is no exclusion of
jurisdiction the suit is not barred under Section 56 of the
Electricity Act. It was further argued that the cause of action
for the suit was the failure of the appellant Board to shift the 11
KV line drawn illegally without obtaining consent of the
appellant in spite of Ext.A2 notice sent on 23.8.1985 and the
cause of action is not that of 1981 as stated in the appeal
memorandum and therefore none of the questions formulated
are substantial questions of law involved in the appeal.
6. Though the appeal was admitted and substantial
questions of law were formulated, as provided under sub-section
5 of Section 100, when the appeal is heard on the questions of
law formulated under sub-section 4 of Section 100, respondent is
entitled to argue that the case does not involve the substantial
questions formulated. Therefore the fact that substantial
questions of law were formulated will not preclude first
respondent from contending that none of those questions are
substantial questions of law involved in the appeal.
7. As rightly pointed out by learned counsel appearing for
first respondent, in the absence of a plea before the trial court
SA 411/1994 6
that suit is bad for non-joinder of necessary parties, appellant is
not entitled to raise it in the second appeal. Even if it was
raised before the trial it cannot be a substantial question of law
involved in the appeal. Even otherwise when the Kerala State
Electricity Board itself is a defendant in the suit, the fact that the
concerned Executive Engineer was not impleaded in the suit will
not make the suit bad for non-joinder.
8. Section 56(1) of the Electricity Act 1910 reads:
” No suit, prosecution or other proceedings
shall lie against any public officer, or any
servant of a local authority, for anything
done, or in good faith purporting to be done,
under the Act”.
Sub-section 2 provides that :
“No court shall take cognizance of an
offence under the Act, by a public officer
except with the sanction-
a) in the case of a person employed in
connection with the affairs of the Union, of
the Central Government; and
SA 411/1994 7
b) in any other case, of the (State
Government).
Section 56 is a usual section inserted in similar enactments for
the protection of public servants, administrative or judicial
officers and is based upon the principle of public policy that an
officer entrusted with the responsibility of discharging certain
duties should be able to do so untramelled by the consideration
of his acts being called in question in a Court of law, or his
being liable to be sued for damages, should his action be legally
or technically erroneous. Section 56 confers immunity to a
public officer from a suit, prosecution or other proceedings not
only in respect of anything done in good faith but also where
they were done purporting to be in good faith. The protection
provided under Section 56 is to the public officer from personal
liability. It has nothing to do with a suit of this nature. The
Apex Court in M.P Electricity Board’s case (supra)
considered the plea of bar raised by the Board against a suit
directing the removal of electric line with poles situated in the
land belonging to a private party, on the allegation that it was
drawn against the provisions of the Act. The Apex Court held
SA 411/1994 8
that the remedy of the plaintiff was not taken away expressly or
impliedly and therefore the suit is maintainable. That exactly is
the position herein also.
9. The trial court and first appellate court on appreciating
the evidence, entered a factual finding that appellant Board had
shifted 11 KV line from its original position and drawn the line
over the property of respondent without the consent or
permission of first respondent and that too without complying
with the provisions of the Act. That factual finding cannot be
interfered in exercise of the powers of this court under Section
100 of Code of Civil Procedure. Courts below found that when
appellant contended that there was no shifting evidence of DW1
establish that there was a shifting of the allignment after
widening of M.C road and construction of a bridge. In such
circumstances, there is no merit in the appeal. It is dismissed.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-