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Allahabad High Court · body

1995 DIGILAW 1318 (ALL)

U P S E B VARANASI v. XITH ADDL D J VARANASI

1995-12-14

D.K.SETH

body1995
D. K. SETH, J. In this case, in a suit being Original Suit No. 161 of 1995 against the petitioner, the U. P. State Electricity Board, an application for injunc tion was moved restraining the defendants, petitioners herein, from planting poles on the land of the plaintiff opposite party No. 2 herein. The injunction was refused" by the learned Munsif by order dated 20th May, 1995 against which Misc. Civil Appeal No. 217 of 1995 was preferred by the plaintiff which was disposed of by the Additional District Judge, XIth Court, Varanasi by order dated 7th of July, 1995. It is against this order the present application has been filed. 2. On the prayer of the learned counsel for the petitioner, leave is granted to convert this application under Article 227 of the Constitution. 3. Mr. Ashok Srivastava holding brief of Mr. N. C. Rajvanshi contends that since there is an approved scheme, therefore, Sections 12 to 19 of the Indian Electricity Act will not be applicable and the procedure for implementation of the Scheme would be carried on by virtue of Section 42 of the Indian Electricity (Supp ly) Act which empowers the electricity authority to exercise the same powers as are envisaged in Section 10 of the Indian Telegraphs Act, 1885. The learned trial Court had rightly rejected the application whereas in the lower appellate court, the petitioners could not get adequate opportunity so as to file their counter affidavit and bring on record the said scheme and the fact that the entire project is almost complete except the particular pole which is to be planted on the land of the plain tiff-opposite-party. 4. Mr. Sankatha Rai, learned counsel for the opposite party, on the other hand, contends that there is no existence of the scheme. Therefore, the contention of Mr. Srivastava cannot be accepted. It was never disclosed either before the trial Court or in the appellate court that there was any scheme. His further contention was that the suit may be disposed of instead of dealing with the interlocutory matters. 5. Mr. Srivastava has produced a Zerox copy of the scheme which has since been published in the U. P. Gazette dated 7th November, 1987 in which the said scheme was published in the form of a notice. Therefore, it appears that there is a scheme. 5. Mr. Srivastava has produced a Zerox copy of the scheme which has since been published in the U. P. Gazette dated 7th November, 1987 in which the said scheme was published in the form of a notice. Therefore, it appears that there is a scheme. He draws my attention to Item No. 8 of the said scheme under the heading transmission Line which includes the line Anpara-Varanasi. According to him, the said line falls within the said scheme. In case such a scheme is there, in that event, there is no doubt that Section 42 of the Indian Electricity (Supply) Act would be attracted by reason whereof Sections 12 to 19 of the Indian Electricity Act will not be applicable. By reason of operation of Section 42 of the Indian Electricity (Supp ly) Act, the provision of Section 10 of the Indian Telegraphs Act would be at tracted. The provisions of Indian Telegraphs Act clearly provide that all lands ex cept the property vested in or under the Control and Management of any local authority can be used for the purpose of planting such poles without permission. The only remedy of the owner or occupier of such property is to obtain full com pensation but the ownership would remain with the owner or occupier while the electricity authorities or the Government would only be entitled to the right of user of the portion of the land occupied by the said pole for the purpose of maintaining and repairing the same, 6. Mr. Sankatha Rai, on the other hand, contends that this very land does not fall within the scheme of the said Anpara-Varanasi as has been sought to be alleged by the petitioners. According to him, Section 16 of the Indian Telegraphs Act would be applicable in respect of any dispute that might be raised as to the question of compensation. 7. Section 16 deals with the exercise of powers conferred under Section 10 and dispute as to compensation which provides that in case the planting of pole is resisted in that event, the District Magistrate may in his discretion order the Telegraph Authority to exercise the powers under Section 10, in case there is any resistence in the matter of planting poles. Section 10 vests the telegraph authority with the power to plant pole on any land. Section 10 vests the telegraph authority with the power to plant pole on any land. The owner or occupier of the said land has only right of getting the compensation and nothing else. Whereas the Telegraph Authority has a right to use the said land for the purpose of maintenance and repair of pole. 8. In order to appreciate the position, it is necessary to refer to Sections 10 and 16 of the Indian Telegraphs Act which are quoted below : "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 immoveable property : Provided that - (a) the telegraph authority shall not exercise the powers conferred by this section except for the purposes of a telegraph established or maintained by the Central Govern ment, or to be so established or maintained; (b) the 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; and (c) except as hereinafter provided, the telegraph authority shall not exercise those powers in respect or 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 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 heal authority.- (I) 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. (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 dis puting 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 are 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 amounts 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. " Section 42 of the Electricity (Supply) Act, 1948 prescribes that while planting the poles, the licensee, namely, the petitioner herein, shall have the same powers with regard thereto as provided in Part III of the Indian Telegraphs Act which con tains Sections 10 and 16 of the said Act, the text whereof is as follows - "42. " Section 42 of the Electricity (Supply) Act, 1948 prescribes that while planting the poles, the licensee, namely, the petitioner herein, shall have the same powers with regard thereto as provided in Part III of the Indian Telegraphs Act which con tains Sections 10 and 16 of the said Act, the text whereof is as follows - "42. Powers to Board for placing wires, poles, etc.- (1) Notwithstanding anything con tained in Sections 12 to 16 and 18 and 19 of the Indian Electricity Act, 1910 (9 of 1910), but without prejudice to the requirements of Section 17 of that Act where provision in such behalf is made in a sanctioned Scheme, the Board shall have, for the placing of any wires, poles, wall-brackets, stays, apparatus and appliances for the transmission and dis tribution of electricity, or for the transmission of telegraphic or telephonic communications necessary for the proper co-ordination of the works of the Board, all the powers which the telegraph authority possesses under Part III of the Indian Telegraph Act, 1885 (13 of 1885) with regard to a telegraph established or maintained by the Government or to be so estab lished or maintained: Provided that where a sanctioned scheme does not make such provision as aforesaid, all the provisions of Sections 2 to 19 of the first-mentioned Act shall apply to the works of the Board. (2) A Generating Company may, for the placing of wires, poles, wall brackets, stays, apparatus and appliances for the transmission of electricity, or for the transmission of telegraphic or telephonic communications necessary for the proper co-ordination of the works of the Generating Company, exercise all or any of the powers which the Board may exercise under sub-section (1) and subject to the conditions referred to therein. " 10. Section 42 of the Electricity (Supply) Act negatives the application of Sec tions 12 to 19 of the Indian Electricity Act. Therefore, the electricity authority has every right to plant poles provided the same is in the approved scheme. 11. In the present case, it has been contended by the petitioner that the scheme was approved in 1987. The opposite party plaintiff had purchased the land only two years earlier viz. in 1993 knowing fully well about the existence of the scheme. 11. In the present case, it has been contended by the petitioner that the scheme was approved in 1987. The opposite party plaintiff had purchased the land only two years earlier viz. in 1993 knowing fully well about the existence of the scheme. It is further contended that the plaintiff had raised the boundary wall after the foundation for planting the poles were laid in *the said land. Therefore, the plaintiff cannot have any right to oppose the said action of the electricity authority. 12. It is an admitted position that these facts were not brought before the Appellate Court. However, the legal proposition is absolutely clear. By reason of the application of Section 42 of the Indian Electricity (Supply) Act, the powers under Section 10 along with the rider contained in Section 16 of the Indian Telegraph Act are available to the petitioner. The plaintiff has only the right to claim compensation and nothing else provided the scheme is an approved one. In the present case, there is no doubt that there is an approved scheme which is ap parent from the Zerox copy of the Gazette dated 7th November, 1987. Except the claim for compensation, the plaintiff has no other right. 13. The only question that is raised by the plaintiff now is that her land does not fall within the said Scheme. If the foundation is already laid on the land then it cannot be said that the land does not fall within the said scheme. If it is a case that the plaintiff had purchased the land only two year ago and had constructed wall after the foundations for the poles were laid, then he cannot even ask for alteration of the line of transmission. Once foundation is laid then the plaintiff can no more resist the planting of the pole. 14. In the circumstances, the order dated 7th July, 1995 is set aside. The ap peal is restored to file. The parties should be at liberty to file their respective leadings or additional pleadings if they are so advised within 20th of January, 996. The lower appellate court shall dispose of the appeal in the light of the ob servations made above within 31st March, 19%. The parties shall co-operate in the early disposal of the matter and shall not ask for any adjournment except in ex tremely unavoidable circumstances. The lower appellate court shall dispose of the appeal in the light of the ob servations made above within 31st March, 19%. The parties shall co-operate in the early disposal of the matter and shall not ask for any adjournment except in ex tremely unavoidable circumstances. The lower appellate court shall decide the question- as to whether foundation has already been laid on the land and thereby bringing the land within the scheme if there is any scheme. 15. With these observations, this petition is disposed of. There will, however, be no order as to costs. Petition dismissed. .