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1994 DIGILAW 314 (KER)

Ismail v. Union of India

1994-08-17

K.G.BALAKRISHNAN

body1994
Judgment :- In these two original petitions, the order passed by the District Magistrate under S.16(1) of the Indian Telegraph Act is challenged. Petitioners also challenge the constitutional validity of S.16(1) of the Indian Telegraph Act so far as it confers jurisdiction on the District Magistrate. 2. The facts in short are as follows: Petitioners are residents of Edayirickapuzha in Kangazha Village. The 6th respondent in O.P. 1038 of 1993-W is conducting a Rubber Factory near the Public Health Centre at Edayirickapuzha. As there was low voltage he sought a High Tension line to this area for increasing the voltage. The Assistant Executive Engineer made a proposal to alignment the voltage and all K.V. line was sought to be drawn through the properties of the petitioners. Petitioners and others raised objection and the Assistant Executive Engineer referred the matter to the District Magistrate. The District Magistrate passed an order on 14-12-92. Petitioners contend that they are aggrieved by the order. 3. I heard petitioners' counsel and the Standing Counsel for the K.S.E.B. Counsel for the petitioners contended that S.16(1) of the Indian Telegraph Act is violative of the fundamental rights guaranteed under Part III of the Constitution. Petitioners also allege that the District Magistrate is given wide discretion and this discretion is not controlled by any set of principles or guidelines. Petitioners further allege that the District Magistrate mentioned in S.16(1) is to be construed as the Chief Judicial Magistrate. The contention of the petitioners is that the enquiry under S.16(1) of the Indian Telegraph Act is to be a judicial enquiry conforming to the principles of natural justice and by virtue of the amendment of the Criminal Procedure Code the power under S.16(1) is being exercised by the District Magistrate, and, therefore, it is violative of Arts.14 and 21 of the Constitution and also against the separation of powers as envisaged under Art.50 of Part IV of the Constitution. Section 16(1) and (2) of the Indian Telegraph Act reads as follows: "16(1). If the exercise of the powers mentioned in S.10 in respect of properly referred to in Cl.(d) of mat Section is resisted or obstructed the District Magistrate may in his discretion order that a telegraph authority shall be permitted to exercise them. Section 16(1) and (2) of the Indian Telegraph Act reads as follows: "16(1). If the exercise of the powers mentioned in S.10 in respect of properly referred to in Cl.(d) of mat Section is resisted or obstructed the District Magistrate may in his discretion order that a 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 S.188 of the Indian Penal Code". The relevant clause is S.51 of the Indian Electricity Act, 1910 which says: "....the State Government may, by order in writing, for the place of electric supply lines appliances and apparatus for the transmission of energy for the purpose of telephonic or telegraph communications necessary for the proper co-ordination of works, confer upon any public officer, license? or any other person engaged in the business of supplying energy to the public under this Act, subject to such conditions and restrictions (if any), as the Suite Government may think fit to impose, and to the provisions of the Indian Telegraph Act, 1885 (13 of 1885) any of the powers which the telegraph-authority possess under that Act with respect to the placing of telegraph lines and posts for the purposes of a telegraph established or maintained by the Government or to be so established or maintained". 4. The scope and ambit of the powers of District Magistrate under S.16 of the Indian Telegraph Act came up for consideration before this Court in various decisions. In Kochumariam v. Kerala State Electricity Board (1987(1) KLT 539), M.P. Menon, J. held: "The District Magistrate functioning under S.16 of the "Telegraph Act is not a court exercising basically adjudicatory functions by collecting evidence and declaring rights of parties, but only an authority exercising his discretion in the matter of granting permission to the Telegraph authorities, after a ministerial enquiry ... An administrative authority forming part of (lie mechanism of the government cannot function in the same manner as a court would try a case, even in cases where some kind of enquiries are involved". 5. An administrative authority forming part of (lie mechanism of the government cannot function in the same manner as a court would try a case, even in cases where some kind of enquiries are involved". 5. In Kunjulakshmi v. District Magistrate (1986 KLT 1320), Radhakrishna Menon, J. held: "The power to be exercised by the authorities mentioned in S.10 of the Act is distinct and different from the discretion, the District Magistrate would exercise under S.16(1) of the Act. In short, those powers/ discretion are mutually exclusive. One authority cannot transgress upon the field allotted to the other. If that be the position the choice of the property for (lie purpose of drawing the line etc. made by the Telegraph Authority cannot be interfered with by the District Magistrate in the exercise of the discretion vested in him under S.16. The jurisdiction of the District Magistrate under S.16(1) of the Act is only to see dial requisite permission is given to the authority made mention of in S.10 in the discharge of its function under the said section". 6. In Kesavan v. Addl. District Magistrate (1986 KLT 395), Paripoornan, J. held that while conducting enquiry under S.16(1) the authority must observe the principles of natural justice and act in good faith and fairly listen to both sides, but the authority was not bound to treat such a question as though it were a trial. It could obtain information in any way, which it thought best, always giving a fair opportunity to those who were parties to the controversy to correct or contradict any relevant statement prejudicial to their view. It was also held that if the result of the personal inspection was disclosed it might have been useful. But it cannot be said that the authority was bound to do so, any more than it would have been bound to disclose all minutes made on the papers in the office before a decision was reached. 7. A Full Bench of this Court considered the powers of the District Magistrate under S.16(1) of the Indian Telegraph Act. The Full Bench held: "Therefore if in this, case we find that the functions exercisable by the District Magistrate are not judicial and the process by which such authority reaches the decision is not any judicial process he would not be functioning as a court. The Full Bench held: "Therefore if in this, case we find that the functions exercisable by the District Magistrate are not judicial and the process by which such authority reaches the decision is not any judicial process he would not be functioning as a court. The functions of the District Magistrate under S.16(1) of the Indian Telegraph Act is also not of a criminal character as the District Magistrate is only granting permission to the authority to proceed with its work and does not by himself impose any punishment or penalty". 8. On a survey of these authorities, it is clear that the District Magistrate is discharging an administrative function and the general principle of natural justice and other procedural regulations would apply. The contention of the petitioners that the District Magistrate is given unlimited power and, therefore, the said provision is illegal cannot be accepted. The District Magistrate hears objectors and consider whether the objections raised by the property owners are reasonable. If the District Magistrate is of the view that it is not proper to draw line through the objectors' property he shall decline permission to draw line through their property. If, on the other hand, the District Magistrate, finds that the objectors are raising frivolous objections, the District Magistrate is competent to rule out such objections and direct the authorities to draw the proposed line. Therefore, I do not find that S.16(1) of the Indian Telegraph Act, 1885 is in any way violative of Art.14 of the Constitution. 9. The next contention urged by the petitioners counsel is that the 'District Magistrate' mentioned in S.16(1) should be a judicial officer. At the time when S.16(1) was enacted the 'District Magistrate' was a judicial authority and power was conferred on such authority. By subsequent amendment to the Code of Criminal Procedure in 1973, the 'District Magistrate' became an Executive Magistrate. Therefore, it is contended that the 'District Magistrate' acting under the Code of Criminal Procedure, 1973 has no powers to conduct any enquiry required under S.16(1) of the Indian Telegraph Act. The contention of the petitioners is that conferment of judicial functions on the Executive Magistrate is opposed to the fundamental principles of governance contained in Art.50 of the Constitution. I am-unable to accept this contention. The contention of the petitioners is that conferment of judicial functions on the Executive Magistrate is opposed to the fundamental principles of governance contained in Art.50 of the Constitution. I am-unable to accept this contention. A similar question was considered by the Constitution Bench of the Supreme Court in Kartar Singh v. State of Punjab UT 1994(2) SC 423). That is a case where some of the provisions of the Terrorists and Disruptive Activities (Prevention) Act, 1987 (TADA) were challenged. The Supreme Court repealed the contention of the petitioner and held that there is nothing wrong in conferring judicial powers on Executive Magistrate. The Supreme Court was of the opinion that both Parliament as well as the State Legislatures have got legislative competence to enact any law relating to Code of Criminal Procedure and the conferment of judicial functions on the Executive Magistrate or special Executive Magistrate is not opposed to Art.50 of the Constitution and it does not offend Art.14 or 21. Moreover, in the instant case, the duties to be discharged by the District Magistrate under S.16(1) of the Act are not of purely judicial in nature. They are more or less akin to administrative functions. So, the attack of the petitioner made against these provisions on that grounds is not sustainable. 10. Coming to the facts of these cases, petitioners' objection is that there are alternate lines and this was not considered by the District Magistrate. It may be noticed that this line was proposed in 1992 and because of the obstruction it could not be drawn. The proposal is to draw 3 K.M. long 11 K.V. line for the purpose of voltage improvement and by the proposed scheme about 400 persons are benefited. There is also a proposal to install a transformer at Edayirickapuzha. Most of the petitioners are also benefited by the proposed line. It is true that some of the petitioners will have to suffer a little inconvenience by the drawal of these lines. But considering the benefit that may derive to the consumers, the objections raised by the petitioners are not weighty and the District Magistrate rightly overruled these objections. The question was elaborately considered by the District Magistrate and the alternate suggestion to construct the line along the public road was also found not feasible. But considering the benefit that may derive to the consumers, the objections raised by the petitioners are not weighty and the District Magistrate rightly overruled these objections. The question was elaborately considered by the District Magistrate and the alternate suggestion to construct the line along the public road was also found not feasible. It is also pointed out mat the route is by the side of a thodu and the petitioners are not seriously affected in the sense that their trees are not to be cut and removed to a greater extent. Considering the above circumstances, I hold that the contentions raised by the petitioners are not tenable and the original petitions are dismissed.