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2010 DIGILAW 995 (CAL)

Tapan Kumar Jana v. STATE OF WEST BENGAL

2010-08-16

J.K.BISWAS

body2010
JUDGMENT 1. THE judgment of the Court was as follows: The petitioner in this Article 226 petition dated August 9, 2010 is seeking the following principal relief: "(a) To pass an order, direction and/or writ in the nature of mandamus, commanding the respondent authorities concerned to stop henceforth any further construction work of installation of High Tension Electric Tower or likewise to be used by the West Bengal State Electricity Distribution Company Limited (WBSEDCL) over and/or encroaching, using, utilising possessing the Schedule 32 decimals of valuable land of the petitioner and/or any part thereof, without order of this Hon'ble Court." 2. HIS case stated in the petition is this. He is the owner of the property (para.2) using a part of which "all on a sudden, without any notice, consent and/or prior permission" (para.6) the second respondent started activities for erecting constructions for placing of high tension electric lines for transmission of electricity. Since his legal notice dated July 17, 2010 (para.8) has been totally ignored by the respondents, he has brought this petition. Mr. Jana, Counsel for the petitioner, submits that since the petitioner's constitutional right to property has been infringed without any authority of law, the petitioner is entitled to remedy under Article 226 of the Constitution. According to him, before taking steps to use any part of the petitioner's property for erecting any construction for any purpose the respondents were required to obtain the petitioner's consent in writing. 3. MR. Panja, Counsel for West Bengal State Electricity Transmission Company Limited (in short WBSETCL) has submitted as follows. WBSETCL put a notice in the newspapers as back as August 18, 2008 that a part of the petitioner's land and parts of lands of some other people would be required by it for erecting constructions for placing of high tension electric lines for transmission of electricity to Sagar Island in the District South 24-Parganas. Questioning the steps the petitioner initiated proceedings before the Executive Magistrate under Section 144 of the Code of Criminal Procedure, 1973 and the Civil Court. Though initially he got certain orders, WBSETCL contested and got the orders vacated. Suppressing all these he has brought this petition. 4. ACCORDING to Mr. Panja the petition should be dismissed with costs for the reason that the petitioner, suppressing material facts, has not approached the Writ Court with clean hands. Though initially he got certain orders, WBSETCL contested and got the orders vacated. Suppressing all these he has brought this petition. 4. ACCORDING to Mr. Panja the petition should be dismissed with costs for the reason that the petitioner, suppressing material facts, has not approached the Writ Court with clean hands. His submission is that even on merits there is absolutely no case. Referring to the provisions of Section 164 of the Electricity Act, 2003, Sections 10 and 16 of the Indian Telegraph, Act, 1885 and Rule 3 of the Works of Licensees Rules, 2006 he has said that for executing the work in question using a part of the petitioner's land WBSETCL was not required to obtain consent of the petitioner who is entitled to proper compensation. In reply Mr. Jana has said that the petitioner did not tell him anything about the proceedings instituted under Section 144 of the Code of Criminal Procedure, 1973 and the suit instituted before the Civil Court. He has only said that the petitioner has not been paid any compensation, though every similarly situated person has been paid. 5. IT is evident from the above-noted facts that the petitioner has brought this petition suppressing material facts. He has completely suppressed the facts concerning the proceedings instituted by him under Section 144 of the Code of Criminal Procedure, 1973 and the suit instituted by him before the Civil Court. Presumably the suit is pending. In para.6 he has stated that "all on a sudden, without any notice, consent and/or prior permission" the second respondent started activities for erecting constructions using a part of his land for placing of high tension electric lines for transmission of electricity. In my opinion, for suppression of material facts alone the petition should be dismissed with costs. 6. I am also of the opinion that there is absolutely no merit in the petitioner's case that WBSETCL has taken necessary steps for erecting the constructions using a part of his land without any authority of law. The relevant provisions of Section 10 of the Indian Telegraph Act, 1885 provide as follows: "10. 6. I am also of the opinion that there is absolutely no merit in the petitioner's case that WBSETCL has taken necessary steps for erecting the constructions using a part of his land without any authority of law. The relevant provisions of Section 10 of the Indian Telegraph Act, 1885 provide as follows: "10. Power for telegraph authority to place and maintain telegraph lines and postsThe 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 (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." 7. SUB-sections (1), (2) and (3) of Section 16 of the Indian Telegraph-Act, 1885 provide a follows: "(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 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, 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, be determined by him." 8. SECTION 164 of the Electricity Act, 2003 provides as follows: "164. Exercise of powers of Telegraph Authority in certain cases. SECTION 164 of the Electricity Act, 2003 provides as follows: "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 of 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 telegraph lines and posts for the purposes of a telegraph established or maintained, by the Government or to be so established or maintained." In exercise of powers conferred by Section 180(2)(b) read with Section 67(2) of the Electricity Act, 2003 the State Government has made the West Bengal Works of Licensees Rules, 2006. Clause (a) of sub- rule (1) of Rule 3 of the Rules provides that a licensee may carry out works, lay down or place any electric supply-line or other works in, through, or against, any building, or on, over or under any land whereon, whereover or whereunder any electric supply-line or works has not already been lawfully laid down or placed by such licensee, with the prior consent of the owner or occupier of any building or land. 9. SUB-rule (4) of Rule 3 of the Works of Licensees Rules, 2006 provides that nothing contained in Rule 3 shall affect the powers conferred upon any licensee under Section 164 of the Electricity Act, 2003, 10. THERE is no dispute that WBSETCL is a licensee under the Electricity Act, 2003, and that by an appropriate notification the State Government has conferred on it the powers mentioned in Section 164 of the Electricity Act, 2003. THERE is no dispute that WBSETCL is a licensee under the Electricity Act, 2003, and that by an appropriate notification the State Government has conferred on it the powers mentioned in Section 164 of the Electricity Act, 2003. Hence the provisions of Rule 3 of the West Bengal Works of Licensees Rules, 2006 requiring a licensee to obtain prior consent of the owner or occupier of any land for doing the things mentioned therein cannot affect its power to place the high tension electric lines for transmission of electricity in exercise of power conferred by Section10 of the Indian Telegraph Act, 1885 using a part of the petitioner's land without obtaining his prior consent. Section 10 of the Indian Telegraph Act, 1885 clearly empowers the telegraph authority to place and maintain a telegraph line under, over, along, or across and posts in or upon, any immovable property without obtaining any consent of the person whose property may sustain any damage in the process. Section 16 of the Indian Telegraph Act, 1885 provides how any person resisting exercise of power under Section 10 thereof shall be dealt with and disputes concerning compensation under clause (d) of Section 10 shall be determined. 11. HENCE there is no reason to say that WBSETCL was either required to obtain the petitioner's prior consent for erecting any construction using any of part of his land for placing of high tension electric lines for transmission of electricity to Sagar Island, or it was taking steps for erecting the constructions without any authority of law. The contention that WBSETCL acted in violation of the petitioner's constitutional right under Article 300A is baseless. 12. THERE is no reason to enter into the question whether WBSETCL has paid the petitioner compensation in terms of Section 10(d) of the Indian Telegraph Act, 1885. The petitioner was free to assert his claim according to law and then to proceed in terms of the provisions of Section 16(3) of the Indian Telegraph Act, 1885. The notice stating that the piece of land in question would be needed by WBSETCL for placing of high tension electric lines for transmission of electricity to Sagar Island was put in the newspapers as back as August 18, 2008. and it is evident that the petitioner, unsuccessfully moving the Executive Magistrate and the Civil Court, was fully aware of it. and it is evident that the petitioner, unsuccessfully moving the Executive Magistrate and the Civil Court, was fully aware of it. He is not entitled to any relief from the Writ Court. For these reasons, the petition is dismissed ordering the petitioner to pay WBSETCL Rs.5,000 costs within three weeks.