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2000 DIGILAW 518 (KER)

Vasu v. Additional District Magistrate

2000-09-29

K.K.USHA, KURIAN JOSEPH

body2000
Judgment :- Kurian Joseph, J. One Smt. Tatha Kalikutty, being not made a party, hereinafter referred to as the appellant, registered an application for electric connection with the 2nd respondent-Assistant Executive Engineer on 6.4.1996 and she was allotted consumer No. 8319. The proposed electric line to her residence was to pass through a portion of the property of the appellant, objector. The objection was referred to the Additional District Magistrate, Alappuzha who by proceedings dated 4.6.1997 overruled the objection and accorded sanction for the drawal of electric line. The appellant challenged the said order Ext. P3 before this Court which led to Ext. P4 judgment dated 12.2.1998. Though a contention regarding the jurisdiction of the 1st respondent Additional District Magistrate was raised by the appellant before this Court, in Ext. P4 judgment the learned Single Judge reserving the right to the appellant to take up the said contention later if required, set aside Ext. P3 proceedings dated 4.6.1997 of the Additional District Magistrate and remanded the matter to the same authority for reconsideration of his order. The learned Single Judge directed the said authority to particularly consider the feasibility of the alternate proposal suggested by the appellant. 2. Therefore, the 1st respondent-Additional District Magistrate issued Ext. P1 proceedings dated 17.6.1998. The 1st respondent considered the various objections of the appellant and came to the following conclusion: "The petitioner on the other hand made it clear that no yielding trees have to be cut or removed. There is statutory clearance from the dwelling house. Hence the presumption of the 1st respondent is baseless. The line is proposed to be drawn through the southern boundary of his property. From the above it can be seen that the 1st proposal made by the petitioner is shortest and economically feasible route. The Tahsildar has also recommended the 1st proposal. Therefore, sanction under S.16(1) of the Indian Telegraph Act, 1885 read with S.51 of the Indian Electricity Act, 1910 is hereby accorded to draw electric line to the house owned by Smt. Thatha Kalikutty, Vediyathuveli, Mararikulam North P.O. as per the original proposal, ie. by drawing 20 metres of OH line and 34 metres of weatherproof wire through the properties owned by the respondents 1 and 2. by drawing 20 metres of OH line and 34 metres of weatherproof wire through the properties owned by the respondents 1 and 2. But while drawing the line it should be ensured that insulated wire is used for giving service connection to the applicant." The said order was challenged by the appellant in the Original Petition. 3. The learned Single Judge elaborately dealt with the various contentions and apprehensions of the petitioner-appellant and dismissed the Original Petition by judgment dated 5.7.2000. On the question of jurisdiction of the Additional District Magistrate, the learned Single Judge took the view that for one thing the question of jurisdiction had not been raised by the appellant before the Additional District Magistrate and that he had participated in the proceedings of enquiry by the said authority, and secondly, the said issue is covered by a direct decision of this Court on the point in Mathai v. K.S.E. Board (1995 (2) KLT 496). The learned Single Judge also observed that the affected party, viz. Smt. Thatha Kalikutty was not impleaded in the Original Petition. In spite of all these, learned Single Judge considered the case in detail on the merits, with particular reference to the order passed by the Additional District Magistrate, and came to the conclusion that it is a speaking order dealing with all the contentions raised by the appellant before the said authority, that there was no error of jurisdiction or other errors meriting interference under Art.226 of the Constitution and that all relevant factors have been considered and no irrelevant factors had crept in. It is aggrieved by the said judgment, the appellant filed the Writ Appeal. 4. Sri. T.C. Govindaswamy, learned counsel for the appellant submitted before us that the Bench decision of this Court in Mathai's case requires reconsideration in so far as the said decision had not taken into consideration the judgments of the Supreme Court on the issue, Ajaib Singh v. Gurbachan Singh and Others (AIR 1965 SC 1619) and Hari Chandv. Batata Eng. C 5. We fail to see how the appellant maintains such an argument on the non-impleadment of the affected party. It has to be noted that the name and address of the beneficiary, Smt. Thatha Kalikutty, is given in the impugned order Ext. P1 and the sanction accorded by the 1st respondent is for drawal of electric line to her residence. We fail to see how the appellant maintains such an argument on the non-impleadment of the affected party. It has to be noted that the name and address of the beneficiary, Smt. Thatha Kalikutty, is given in the impugned order Ext. P1 and the sanction accorded by the 1st respondent is for drawal of electric line to her residence. In such circumstances, the petitioner is certainly not justified in not impleading the affected party and on that sole ground the Original Petition was liable to be dismissed. 6. Anyhow, we may deal with the other argument regarding reconsideration of the decision in Mathai's case. According to the appellant, District Magistrate and Additional District Magistrate are two different authorities and Additional District Magistrate who is subordinate to District Magistrate cannot be substituted for District Magistrate. Counsel heavily banks on the decision of the Apex Court in Ajaib Singh 's case and Hari Chand's case (supra). But it has to be noted that the former is a case dealing with the provisions of the Defence of India Act, 1962 and attempted delegation of certain powers vested with the District Magistrate and the Supreme Court considered the competency of an Additional District Magistrate to pass an order for detention and the latter dealt with an order passed by the Additional District Magistrate to requisition the property under S.29 of the said Act. It has to be specially noted that under the said Act the relevant notification provides that the order for detention should be passed by an officer not below the rank of a District Magistrate. As a matter of fact, in Ajaib Singh's case the position has been beautifully summarised. In the words of Wanchoo, J.: "The Act and the Rules therefore show unmistakably that the power of detention can only be exercised by the State Government or an officer or authority to whom it might be delegated but who shall in no case be lower in rank than a District Magistrate". There is no such provision either in the Indian Telegraph Act, 1885 or in the Indian Electricity Act, 1910 or in the Electricity (Supply) Act, 1948 requiring the proceedings for clearance of objection to be issued by a person not below the rank of a District Maistrate. 7. There is no such provision either in the Indian Telegraph Act, 1885 or in the Indian Electricity Act, 1910 or in the Electricity (Supply) Act, 1948 requiring the proceedings for clearance of objection to be issued by a person not below the rank of a District Maistrate. 7. Coming to Hari Chand's case, it was a case where the order for requisitioning the property was passed by an Additional District Magistrate. Analysing the onerous duties cast on the District Magistrate under the provisions of the said Act, the Apex Court at para. 9 of the judgment observed as follows: "9. It has not been disputed that the powers of requisitioning are of a very drastic nature and involve the fundamental rights in respect of property guaranteed under Art.19(1)(f) of the Constitution. The Central Government while making the delegation of its power under S.29 of the Act must ordinarily be presumed to be fully conscious of this aspect of the matter and it was for that reason that an officer or authority of the high status of a District Magistrate in the district was empowered to exercise that power." Thus it can be seen that the Supreme Court went to the extent of examining the legislative intent behind the prescription of powers and functions under S.29 of the said Act on the District Magistrate and thus came to the conclusion that such powers cannot be exercised by a subordinate officer than the one designated as District Magistrate. 8. Both Ajaib Singh's case and Hari Chand's case dealt with the provisions of the Code of Criminal Procedure, 1898. Under the said Code, the Additional District Magistrate was meant to be subordinate to the District Magistrate at least for the purpose of certain provisions. Coming to the Code of 1973, S.23 specifically provides that "all Executive Magistrates, other than the Additional District Magistrate, shall be subordinate to the District Magistrate " 9. Under the said Code, the Additional District Magistrate was meant to be subordinate to the District Magistrate at least for the purpose of certain provisions. Coming to the Code of 1973, S.23 specifically provides that "all Executive Magistrates, other than the Additional District Magistrate, shall be subordinate to the District Magistrate " 9. It is significant to note that in Central Talkies Ltd. v. Dwarka Prasad (AIR 1961 SC 606), the Supreme Court had considered this question in the background of the U.P. (Temporary) Control of Rent and Eviction Act and came to the conclusion that "An Additional District Magistrate who has been appointed as such by a notification under S.10(2) Criminal P.C., whereunder he is invested with all the powers of the District Magistrate under that Code as well as under any other law for the time being in force is competent to deal with an application under S.3 of the U.P. (Temporary) Control of Rent and Eviction Act for permission to file a civil suit, without special authorisation from the District Magistrate". That was a case where permission of the District Magistrate was necessary to file a suit for eviction under the provisions of the said Act. It was that power which was notified to be exercised by the Additional District Magistrate by a notification under S.10(2) of the Code of Criminal Procedure, 1898 (S.20(2) of the Present Code of 1973). 10. On the notification issued by the State Government empowering the Additional District Magistrate to exercise the powers of the District Magistrate, it is not as if the State was not aware of the nature of the duties to be performed by the Additional District Magistrate. On an analysis of the various provisions of the Code of Criminal Procedure, 1973 vis-a-vis the provisions of the Indian Telegraph Act, 1885theposition is crystal clear. On an analysis of the various provisions of the Code of Criminal Procedure, 1973 vis-a-vis the provisions of the Indian Telegraph Act, 1885theposition is crystal clear. S.133 of the said Code provides that "whenever a District Magistrate or a Sub-divisional Magistrate or other executive magistrate specially empowered in this behalf by the state government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers (a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public ----", such Magistrate is empowered to pass an order "to remove such obstruction or nuisance". Under S.10 of the Indian Telegraph Act, 1885 the telegraph authority is vested with powers "to place and maintain a telegraph line under, over, along, or across, and posts in or upon, any immovable property". Under S.16(1) of the said Act "if the exercise of the powers mentioned in S.10 of the said Act. True, the powers under the code no not cover removal of obstruction by the owner in respect his own property. But S.10 of the Indian Telegraph Act is one such rare power given to an authority to enter a private property as of right to place a telegraph line or post and by incorporation, the officers of the licensee electricity board to place electric line or posts. It is also true that the owner has a right to injunct the said authority, another rare provision. When once such an injunction is issued resisting or obstructing such exercise of power under S.10, the telegraph authority/ licensee Electricity Board cannot proceed further without obtaining appropriate orders from the District Magistrate, on a reference to the said authority by the telegraph authority of the licensee. 11. In this connection it is also fruitful to refer to S.16(2) of the Indian Telegraph Act vis-a-vis S.136 of the Code of Civil Procedure ,1973. S.16(2) of the Indian Telegraph Act provides that "if , after the making of an order under sub-s (1) any person resists the exercise of those powers, or having control over the property, does not give all facilities for their being exercise, he shall be deemed to have committed an offence under S.188 of the Indian Penal Code, 1860". S.16(2) of the Indian Telegraph Act provides that "if , after the making of an order under sub-s (1) any person resists the exercise of those powers, or having control over the property, does not give all facilities for their being exercise, he shall be deemed to have committed an offence under S.188 of the Indian Penal Code, 1860". S.136 of the Code of Civil Procedure ,1973 referring to the non-compliance with the order passed under S.133 of the code, provides as follows: "if such person does not perform such act or appear and show cause, he shall be liable to the penalty prescribed in that behalf in S.188 of the Indian Penal Code (45 of 1860) and the order shall be made absolute". 12. The situation in Ajaib Singh's case and Hari Chand's case where the District Magistrate had to perform the functions under the Defence of India Act and Rules. As already stated above, the nature of the powers and duties as also the functions vested on the District Magistrate under the Defence of India Act and Rules are entirely different from those under the Code of Criminal Procedure and the Indian Telegraph Act. Enquiry by a District Magistrate in the matter of feasibility of drawing an electric line through a particular route cannot be equated or compared with the highly responsible duties to be exercised by the Direct Magistrate under the provisions of the Defence of India Act. 13. Not only that, the terra District Magistrate is explained only in the Code of Criminal Procedure to mean an Executive Magistrate performing administrative or executive functions. Under S.20(2) of the Code of Criminal Procedure, 1973 "the State Government may appoint any Executive Magistrate to be an Additional District Magistrate, and such Magistrate shall have such of the powers of a District Magistrate under this Code or under any other law for the time being in force, as may be directed by the State Government."' Thus, it can be seen that it is for the State Government to decide, as has been done in the present case, what are the powers of an Additional District Magistrate. Once such a notification empowering the Additional District Magistrate is issued, it cannot be said that the Additional District Magistrate is not the same as the District Magistrate referred to in the Indian Telegraph Act, 1885. 14. Once such a notification empowering the Additional District Magistrate is issued, it cannot be said that the Additional District Magistrate is not the same as the District Magistrate referred to in the Indian Telegraph Act, 1885. 14. In that view of the matter, both the said decisions do not apply to the present case and hence MalJiai's case does not require reconsideration. Additional District Magistrate as duly authorised by the State Government is competent to exercise the various powers vested on the Distort Magistrate under the Indian Telegraph Act, 1885 . 15. Now we shall deal with the pathos of an applicant waiting for an electric connection since the last half¬a-decade. Apparently, the said applicant is unable to reach this Court, as otherwise she would have persued long back the impediments in getting the connection. That situation all the more disturbs us. It is significant to note in this context that the only objection of the appellant is that 'the drawal of electric line through my property will involve cutting of trees and endanger the safety of my life as well as of my family members". There is also a suggestion for an alternative route by the appellant. Referring to those contentions, the Assistant Executive Engineer in his counter-affidavit has stated thus: 'The alternate proposal suggested by the petitioner is extremely lengthy and is not economically viable---. The petitioners apprehension that the drawal of line will involve cutting of coconut trees and danger to his dwelling house is totally baseless. No yielding trees are to be cut and removed and statutory clearance will be maintained. The proposal now sanctioned is thorough the southern boundary of the property of the petitioner. This is the shortest and most feasible route." One has to remember that it is as against such plain set of facts only, the appellant kept Smt Thatha Kaliketty without "light" successfully for the last five years." In the interests of justice we feel that the appellant should compensate her for the delayed justice. 16. In view of what is stated above, we dismiss the Writ Appeal with costs, which we fix at Rs. 3,500/-. The costs, should be paid to the 2nd respondent-Assistant Executive Engineer, Electrical Major Section, S.1. Puram who shall effect service connection to Smt. Thatha Kalikutty within 10 days from today, by drawing the line as sanctioned in Ext. P1. The costs of Rs. 3,500/-. The costs, should be paid to the 2nd respondent-Assistant Executive Engineer, Electrical Major Section, S.1. Puram who shall effect service connection to Smt. Thatha Kalikutty within 10 days from today, by drawing the line as sanctioned in Ext. P1. The costs of Rs. 3,500/- ordered by us should be treated as expenses towards service connection charges to the said consumer and the 2nd respondent is directed to realise the said costs from the appellant, as dues payable to the Electricity Board, as provided under S.24 of the Indian Electricity Act, 1910. No other charges shall be collected from applicant towards service connection charges. We are constrained to make such an observation because we are of the view that the Electricity Board also is partially responsible for the delay in effecting the service connection. It is made clear that any delay for the recovery of the costs shall not stand in the way of electricity connection being provided as ordered above, which in any case, shall be complied with within the aforementioned period. If, after meeting all the expenses for effecting the service connection, there still remains any balance, the same shall be adjusted towards future energy charges of applicant. 17. This does not mean that the appellant is left without any remedy to redress his grievance on the apprehended difficulties and alleged potential threat to his life by the presence of the electric line in a portion of his property. S.17 of the Indian Telegraph Act, 1885 provides for shifting of an electric line. If the appellant wants to shift the electric line which passes through a portion of his property, he is certainly at liberty to move the 2nd respondent for the same. But such shifting can only be at the expense of the appellant, as provided under S.17 of the said Act. If the said authority refuses to shift, the appellant is entitled under S.17(3) of the said Act to approach the District Magistrate for an order for removal or alteration. However, it is made clear that the question of such shifting arises only after the electric connection is provided to Smt. Thatha Kalikutty within the time stipulated above.