IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 23.06.2009 CORAM: THE HON'BLE MR. JUSTICE M.DURAISWAMY Second Appeal No.763 of 2000 1.S.Sivakumar 2.S.Mohan Kumar .. Appellants /Plaintiffs Vs 1.The Assistant Executive Engineer, TWAD Board, 52, Idhyam Complex, Thiruvarur. 2.The general Manager, Madras Oil Refiners Ltd., Penamgudi, Nannilam Taluk. .. Respondents /Defendants SECOND APPEAL filed under Section 100 of the Code of Civil Procedure judgment and decree dated 21.12.1999 made in A.S.No.170 of 1999 on the file of Principal Subordinate Judge, Nagapattinam confirming the Judgment and Decree dated 04.06.1999 passed in O.S.No.296 of 1995 on the file of the District Munsif, Nannilam. For Appellants : Mr.N.Thiagarajan For Respondents : Mr.Sudarshana Sunder - for R1 Mr.R.Muthukumarasamy Senior Counsel for Mr.A.Jenasenan – for R2 J U D G M E N T The above Second Appeal arises against the judgment and decree in A.S.No.170 of 1999 on the file of Principal Subordinate Court, Nagapattinam confirming the Judgment and Decree in O.S.No.296 of 1995 on the file of District Munsif Court, Nannilam. 2. The plaintiffs in the suit are the appellants in the above second appeal. The respondents are the defendants in the suit. https://hcservices.ecourts.gov.in/hcservices/ 3. The plaintiffs filed O.S.No.296 of 1995 on the file of District Munsif Court, Nannilam against the defendants for mandatory injunction directing the defendants to remove two pipe line laid in the suit property. 4. The brief case of the plaintiffs is as follows:- (i) According to The plaintiffs, they are the owners of 8 acres and 23 cents of Nanja lands in R.S.No.61/2. It is cultivable nanja land. According to the plaintiffs, the first defendant is nothing to do with the suit land. In August 1992, the first defendant trespassed into the suit land and laid two pipe lines to a length of about 200 feet on the northern side of the land i.e. adjacent to the main road which reached M.R.L. at Vettivalkai village and caused heavy damages to the land by digging pits. (ii) According to the plaintiffs, the act of first defendant is unlawful and one without consent or knowledge of plaintiffs. According to the plaintiffs, due to digging of pits and installing two pipe lines in the cultivable suit lands, samba crops have been materially damaged to the tune of Rs.5,000/- in the year 1992. Subsequently also, two times, pipe lines broke and caused damage to the crops. According to the plaintiffs, pipe lines are hindrance for cultivation in the suit field. The plaintiffs issued notice to the first defendant on 17.9.1992 to remove the pipe lines from the suit property. Hence, the plaintiffs filed suit for mandatory injunction. 5. The brief case of the first defendant is as follows: (i) According to the first defendant, pipe line water in question is running from Sooraur to Narimanam, M/s.Madras Refineries Limited, Petro Chemical Complex for a distance of 12.6 kms. That there is a pumping station at Sooranur, which gets water from six bore wells around and on collection of the water at Sooranur, the water is being pumped by powerful electric motor pumps to Narimanam Oil Refinery by pipe line. The supply of water and laying of pipe line etc., was the offspring of an agreement between M/s.Madras Refineries Limited and the Tamil Nadu Water and Drainage Board (a corporation formed by Government of Tamil Nadu). (ii) According to the first defendant, the work of laying the pipe line was undertaken by the contractors of the TWAD Board in the month of August 1992 itself. The work undertaken by TWAD Board was on a time bound basis. Keeping the national interest in the mind, the work was done without delay. The trench was to a depth of 1.2 metres and a width of about 1.2 meters to a length of about 200 feet. https://hcservices.ecourts.gov.in/hcservices/ (iii) According to the first defendant, the plaintiffs are very much aware of the laying of the pipe line in his field and also the alignment taken to lay such pipe line. The work was carried on for nearly 3 days because, the deviation is given much care to be taken and special attention was focussed. (iv) According to the first defendant, even after notice, the plaintiffs kept quiet till the filing of suit in the year 1995. According to the first defendant, by notice dated 20.10.1994, the plaintiff abandoned their claim or right to claim for removal of pipes and choose to claim only damages caused by leakage. No demand has been made for removal of pipes in the notice dated 20.10.1994. Therefore, the first defendant prayed for dismissal of the suit. 6. The case of the second defendant is as follows: According to the second defendant the suit is liable to be dismissed on the ground of delay and laches. According to the second defendant, the removal of the pipelines from the suit land will result in incalculable harm to the defendants. On either side of the suit land pipelines have bee laid. According to the second defendant, he is unnecessary party to the suit. 7. Before the trial court, the plaintiffs examined 4 witnesses and marked 15 documents Exs. A1 and A15. On the side of the defendants, D.W.1 was examined and no document was marked. Commissioner's report and plans were marked as Exs. C1 to C3 and Exs. C4 and C5 are the report and plan of the Surveyor. 8. The trial court, after taking into consideration the oral and documentary evidences of both the parties, dismissed the suit on the ground that notice under section 62 of the Tamil Nadu Water Supply and Drainage Board Act 1970, was not issued to the defendants before filing of the suit. 9. Aggrieved by the judgment and degree of the trial court, the plaintiffs filed an appeal in A.S.NO.170 of 1999 on the file of Principal Subordinate Court, Nagapattinam and the lower appellate court after taking into consideration the oral and documentary evidences of both the parties found that notice under Section 62 of the Tamil Nadu Water Supply and Drainage Board Act 1970 have been complied with. But the lower appellate court dismissed the appeal on the ground of delay and laches. 10. Aggrieved by the judgment and decree of the courts below, the plaintiffs have filed the above second appeal. https://hcservices.ecourts.gov.in/hcservices/ 11. Heard Mr.N.Thiagarajan, learned counsel appearing for the appellant, Mr.Sundaramurthy, learned counsel for the first respondent and Mr.R.Muthu Kumarasamy, senior counsel for the second the respondent. 12. At the time of admission of the above Second Appeal, the following substantial question of law arose for consideration:- "Whether the Lower Appellate Court is correct in dismissing the suit for mandatory injunction on the sole ground that the suit has been filed belatedly eventhough the lower appellate court held that the suit has been field properly after 60 days from the date of Ex.A10 dated 20.10.1994 as contemplated under section 62 of the Tamil Nadu Water Supply and Drainage Board Act 1970?" 13. On a careful consideration of the materials available on record and the submissions made by respective the learned counsel, it could be seen that a pine line in the appellants'/plaintiffs' land in August 1992. The appellants/ plaintiffs issued Ex.A1 notice dated 17.09.1992 to the defendants. Then on 21.07.1994, under Ex.A5, the plaintiffs issued the second notice to the defendants. Again on 27.10.1994, under Ex.A10, the plaintiffs issued another notice to the defendants. On 11.10.1995, the plaintiffs filed the suit in O.S.NO.296 of 1995. Therefore, the notice issued on 21.07.1994, before the filing of the suit on 11.10.1995. Therefore, there is no doubt that the plaintiffs have complied with the mandatory notice under section 62 of the Tamil Nadu Water Supply and Drainage Board Act 1970. The lower appellate court also rightly found that the plaintiffs have complied with section 62 of the Tamil Nadu Water Supply and Drainage Board Act notice before the filing the suit on 11.10.1995. 14. With regard to the laches and delay, the learned counsel for the appellants submitted that since it is a continuous cause, there is no limitation for filing the suit. This submission made by the learned counsel for the appellants cannot be accepted for the reason that the pipe line was laid in August 1992 and immediately on 17.9.1992, under Ex.A1, appellants'/plaintiffs issued notice to the respondents to remove the pipe lines. But they did not choose to file the suit immediately. The suit was filed only on 11.10.1995 i.e. after three years from the date of issuance of Ex.A1 notice. The reason for filing the suit belatedly has not been explained by the appellants/plaintiffs to accept the contention of the continuous cause. https://hcservices.ecourts.gov.in/hcservices/ 15. Mr.R.Muthu Kumarasamy, learned senior counsel appearing or the second respondent submitted that the appeal is liable to be dismissed on the ground of laches in filing the suit. In support of his submissions, the learned senior counsel relied on judgment reported in 1993 (1) MLJ 73 (G.S.Ramachar v. The Block development Officer, Kaveripatnam and others), which reads as follows: "The second appeal is taken up for hearing. There is no merit in this appeal. The courts below have declared the title of the plaintiffs to the property in question. But the lower appellate court has found that the plaintiffs are not entitled to mandatory injunction in in view of their conduct in keeping quiet when the respondents 1 to 3 formed the road. Even before the suit, a notice was issued under Ex.A-1, dated 12.12.1972. In that notice, it was stated that the respondents 1 to 3 were trying to trespass on the property and form a road. The respondents 1 to 3 were threatened with a suit if they failed to comply with the demand made in the said notice within two months therefrom. Yet the sit was filed only on 30.1.1975. In paragraph 16 of the plaint, it is stated that the road was completed by the respondents 1 o 3 from the point 'x' to 'Y'. It is further stated that the plaintiffs are entitled to damages at least at Rs.100 per year from the defendants form December, 1972 to December 1974. Thus, there is an admission that the road was completed in December, 1972. Therefore, it is clear that the plaintiffs were guilty of laches. They should have taken steps even when there was an attempt on the part of the defendants to form a road and obtained an injunction restraining them from forming the road. Having allowed the authorities to spend a lot of public money for forming the road, it is not open to the plaintiffs to ask for mandatory injunction. The relief of mandatory injunction is discretionary and the lower appellate court has applied the correct principles of law in refusing to grant the mandatory injunction." From above decision of this court, it could be seen that the plaintiff is not entitled to mandatory injunction when the plaintiff is guilty of laches. 16. Further, it could be seen that there is no specific provision in the limitation Act 1963 which prescribes the period of limitation for the relief of mandatory injunction to remove a particular thing like pipe line, etc. Therefore, the case on hand will attract Article 113 of the Limitation Act which reads as follows: https://hcservices.ecourts.gov.in/hcservices/ Description of application Period of limitation Time from which period begins to run 113. Any suit for which no period of limitation is provided elsewhere in this schedule. Three years When the right to sue accrues. In the present case, the appellants/plaintiffs filed the suit for mandatory injunction to remove the pipe line. The pipe line was laid in August 1992 and Ex.A1 notice dated 17.9.1992 was issued to the respondents/defendants to remove the pipe line. The appellants filed the suit only on 11.10.1995 i.e. after three years from the date of right to sue accrued. Therefore, in view of Article 113 of the Limitation Act, the suit is barred by limitation. 17. Learned senior counsel appearing for the second respondent also relied on Section 68 (1) of the Tamil Nadu Water Supply and Drainage Board Act and it reads as follows: "Power of entry : (1) The Managing Director or any person either generally or specially authorized by the Managing Director in this behalf may, with or without assistance of workmen enter into or upon any land in order:- (a) to make any inspection, survey, measurement, valuation or inquiry; b) to take levels c) to did or bore into the sub-soil; d) to set out boundaries and intended lines of work (e) to mark such levels boundaries and lines by placing marks and cutting trenches. f) to place and maintain pipes, drains and other installations upon, along, across under any land; or g) to do any other thing whenever it is necessary to do so for any of the purposes of this Act or any rule or regulations made or any scheme sanctioned thereunder or any scheme which the Board intends to frame thereunder. From section 68(1)(f), it could be seen that the first respondent can with or without the assistance of workmen enter into or upon any land, in order to place and maintain pipes, drains and other installations upon, along, across under any land. 18. Learned senior counsel appearing for the second respondent also relied on Section 68 (2) of the Tamil Nadu Water Supply and Drainage Board Act and it reads as follows: (2) Whenever the Managing Director or a person authorized under sub-section (1) enters into or upon any https://hcservices.ecourts.gov.in/hcservices/ land in pursuance of that sub-section, he shall,a t the time of such entry, pay or tender payment for all necessary damage to be done as aforesaid; and in case of dispute as to the sufficiency of the amount so paid or tendered, he shall at once refer the dispute to the Board, whose decision shall be final." 19. Learned senior counsel appearing for the second respondent submitted that the provisions of section 68 of the Tamil Nadu Water Supply and Drainage Board Act apply to the case on hand. 20. In these circumstances, the suit is liable to be dismissed on the ground of delay and laches. The lower appellate court has rightly dismissed the suit on that ground. Further, as already found the suit is liable to be dismissed on the ground of limitation. Therefore, I find no ground much less substantial questions of law to interfere with the judgments and decrees of the courts below. The above second appeal is liable to be dismissed. Accordingly, the above Second Appeal is dismissed. However, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rj To 1.The Principal Subordinate Judge, Nagapattinam. 2.The District Munsif, Nannilam. copy to The Record Keeper, V.R.Section, High Court, Madras. 1 cc To Mr.A.Jenasenan, Advocate, SR.25606. 1 cc To Mr.N.Thiagarjan, Advocate, SR.25286. 1 cc To Mr.Sudharshana Sunder, Advocate, SR.25372. S.A. No.763 of 2000 CU(CO) RVL 08.07.2009 https://hcservices.ecourts.gov.in/hcservices/