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Allahabad High Court · body

2010 DIGILAW 2304 (ALL)

OM PRAKASH v. STATE OF U. P.

2010-08-03

ASHOK BHUSHAN, V.K.DIXIT

body2010
JUDGMENT By the Court.—Heard learned counsel for the petitioner and Sri Rajesh Tripathi appearing for respondent Nos. 2 and 3 and learned Standing Counsel for respondent No. 1. 2. By consent of the parties, writ petition is being finally disposed of without inviting any counter-affidavit. 3. By this writ petition, petitioner has prayed for a mandamus directing and commanding the respondents, power corporation to decide the claim of petitioner with regard to Khata No. 144, Khasra No. 454 utilized for installation of tower of 132 K.V. in village Jachanda, Mathura. 4. Petitioner’s case in the petition is that petitioner is a Bhumidhar of Plot No. 454 area 1.49 hectares. He submits that in the year 2009 when the crops were standing, the power corporation its transmission division started digging points for installation of electric tower due to which the crop was destroyed. He submits that Superintendent Engineer issued an order in May, 2010 fixing certain amounts for compensation for the loss of crop. Petitioner submits that he has submitted a representation to the Executive Engineer praying for compensation for the land as well as for the crop. In the representation he submitted that due to fixing of tower petitioner is suffering and he is entitled for compensation. 5. Learned counsel for the respondent Sri Rajesh Tripathi submitted that remedy of the petitioner is to make an appropriate application for compensation in accordance with the Works of Licensee Rules 2006 framed under Section 176 of Electricity Act 2003. He also submits that under the Indian Telegraph Act 1885, the District Magistrate is empowered to decide the compensation to be paid for maintaining a telegraph line over and across in any plot or immovable property. He further submits that by virtue of Section 164 of the Electricity Act, under the order of Appropriate Government, the power of Telegraph Authority can be exercised by the Public Officer for laying down the electric line. 6. We have considered the submissions of counsel for the parties and perused the record. Relevant rule of The Works of Licensee Rules 2006 is as follows : “3. 6. We have considered the submissions of counsel for the parties and perused the record. Relevant rule of The Works of Licensee Rules 2006 is as follows : “3. Licensee to carry out works.—(2) When making an order under sub-rule (1), the District Magistrate or the Commissioner of Police or the officer so authorized, as the case may be, shall fix, after considering the representations of the concerned persons, if any, the amount of compensation or of annual rent, or of both, which should in his opinion be paid by the licensee to the owner or occupier.” 7. Sections 10 and 16 of the Indian Telegraph Act 1885 which are relevant for the present case are also quoted below : “10. Power of 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 immovable property: provided that- (a) the telegraph authority shall not exercise the powers conferred by this section except for the purpose of a telegraph established or maintained by the [Central Government] 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 of 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. 16. Exercise of powers conferred by section 10, and dispute as to compensation, in case of property other than that of a local authority (1) 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 other 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, 1860 (45 of 1860). (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 disputing parties to the District Judge within whose jurisdiction the property is situate, by 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 amount; 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.” 8. Section 164 of the Electricity Act which has been relied by the counsel for the respondents to the following effect: “164. Section 164 of the Electricity Act which has been relied by the counsel for the respondents to the following effect: “164. Exercise of powers of Telegraph Authority in certain cases.—The Appropriate Government may, by order in writing, for the placing of electric lines or electrical plant for the transmission of electricity or for the purpose of telephonic or telegraphic communications necessary for the proper co-ordination or works, confer upon any public officer, licensee or any other person engaged in the business of supplying electricity under this Act, subject to such conditions and restrictions, if any, as the Appropriate 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 possesses 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.” 9. A perusal of the aforesaid statutory provisions indicates that whenever a licensee is to carry out the work of electric supply line through any building or land, in case the consent is not given by the owner, a permission from the District Magistrate or the Commissioner of the Police is required and while granting such permission, the District Magistrate can fix any amount of compensation or of annual rent or of both to suitably compensate the owner of the land. In the present case, it is not the case of the respondents that petitioner gave their consent for laying down transmission line from their plot. From the materials brought on record transmission line has already been drawn and Polls have been fixed on the land of the petitioner. Annexure-3 which has been filed to the writ petition is a letter of the Superintendent Engineer providing certain compensation for loss of the crop. Loss of crop for laying down the transmission line is not the only compensation which has been contemplated under the statutory scheme. Under the Works of Licensee Rules 2006, compensation or the annual rent or both is contemplated. This is because of the reason that if transmission line is drawn from a land, the area beneath the land may not be usable for agricultural purpose which may be annual loss to a owner of the land. Under the Works of Licensee Rules 2006, compensation or the annual rent or both is contemplated. This is because of the reason that if transmission line is drawn from a land, the area beneath the land may not be usable for agricultural purpose which may be annual loss to a owner of the land. The compensation awarded by the Superintendent Engineer may or may not be adequate with regard to the loss of the crop. 10. In view of the aforesaid, we are of the view that the petitioner is at liberty to make an appropriate application before the District Magistrate in accordance with the Works of Licensee Rules 2006 read with Section 164 of Electricity Act 2003 and the powers under the Indian Telegraph Act 1885 for compensation for loss of crop and for annual rent and it is for the District Magistrate to consider the claim of the petitioner after giving an opportunity to the officials of the U.P. Power Corporation and take a decision accordingly. 11. We further provide that in case petitioner submits an appropriate application before the District Magistrate, Mathura within a period of one month from today, the District Magistrate may call for a report and expeditiously decide the claim of the petitioner for compensation and or for annual rent or for both expeditiously, preferably within a period of three months from the date of production of certified copy of the order. 12. With the above observation writ petition is disposed of. —————