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2011 DIGILAW 619 (GAU)

Narayan Chandra Paul v. State of Tripura

2011-07-26

BIPLAB KUMAR SHARMA

body2011
JUDGMENT B.K. Sharma, J. 1. Heard Mr. S. Saha, learned Counsel for the Petitioner as well as Mr. A. Sengupta, learned Counsel appearing for the Respondents. 2. By means of this writ petition, the Petitioner has prayed for a direction to the Respondents to refer the particular dispute to Arbitration in accordance with provisions of Section 19 read with Section 52 of the Indian Electricity Act, 1910. With the same prayer, the Petitioner had earlier approached this Court by filling the writ petition being WP(C) No. 288/2000. The writ petition was disposed of by order dated 12.3.2010 with the following order: 3. The Writ Petitioner is to file an application alongwith the copy of the writ petition and also with a certified copy of this Order/judgment to the Secretary to the Government of Tripura in the Department of Power who while after hearing the Petitioner and the representative of the Power Department decide the dispute regarding entitlement of compensation and quantum thereof payable to the Petitioner for drawing up high voltage electric line over the land of the Petitioner. The decision should be given within a period of six (6) months from the date of application of the Petitioner. 3. Thus, if we go by the prayer made in the writ petition, the same is clearly barred by res judicata, inasmuch as, in the earlier writ petition also the Petitioner had made the same prayer, in consideration of which the writ petition was disposed of by passing the above quoted order. 4. Pursuant to the said order passed by this Court, the Govt. of Tripura in the Office of the Commissioner, Power, has passed the order enclosed to the Annexure-A communication dated 15.7.2003. Since the direction of this Court was to the Secretary to the Govt. of Tripura in the department of Power to decide the issue, the said authority has decided the same by passing the order dated 5.5.2003 and communicated to the Petitioner by the aforementioned communication dated 15.7.2003. By the said order, the authority to whom the matter was referred to by this Court, has held that the Petitioner is not entitled to compensation as claimed by him. 5. On perusal of the order, it appears that pursuant to the above quoted order of this Court, proceeding was initiated and notices were served on both the parties. By the said order, the authority to whom the matter was referred to by this Court, has held that the Petitioner is not entitled to compensation as claimed by him. 5. On perusal of the order, it appears that pursuant to the above quoted order of this Court, proceeding was initiated and notices were served on both the parties. Initially, the Petitioner did not respond to the notice for which extension of time limit fixed by this Court had to be prayed for. There was time to time non-appearance on behalf of the Petitioner and eventually on 3.3.2003, the Petitioner appeared before the authority along with the engaged counsel and requested for further time to submit written statement. The written statement was submitted on 11.3.2003. However, on the scheduled date of hearing, neither the Petitioner nor his engaged counsel made any appearance. Thereafter, the matter was heard on the basis of the materials available on record. 6. The authority framed the following issues for consideration: (i) The land acquisition process and the amount of land acquired; (ii) The amount of compensation for acquired land and property thereon; (iii) The actual amount of compensation paid to the Petitioner; and (iv) The existence, or otherwise, or rubber trees below the line and entitlement for compensation thereof. 7. Upon a threadbare discussion of the entire materials on record, the authority answered the issues against the Petitioner. While doing so, the said authority has made the following observations towards answering the issue No. (iv). D. THE EXISTENCE, OR OTHERWISE, OR RUBBER TREES BELOW THE LINE AND ENTITLEMENT FOR COMPENSATION THEREOF: 27. The transmission line was set up in the year 1997 and the survey conducted at that time had pointed out the existence of only Blackberry, Simul and Awal trees. In the affidavit filed earlier by the Deputy Secretary (Power) before the Hon'ble High Court on 31.10.2000, the existence of any rubber trees on the land in question was strongly denied. The latest affidavit filed by the Power Department before the undersigned on 27.2.2003 is, however, silent on the issue of whether, or not, there is a rubber plantation on the land of the Petitioner through which the transmission line passes. 28. The latest affidavit filed by the Power Department before the undersigned on 27.2.2003 is, however, silent on the issue of whether, or not, there is a rubber plantation on the land of the Petitioner through which the transmission line passes. 28. I am, therefore, of the view that rubber trees may have existed on the Petitioners land before the line was drawn up or the Petitioner may have cultivated rubber trees on the land after the construction of line. This is open to investigation. The Petitioner has enclosed a certified issued by the Rubber Board certifying new rubber plantation on his land. However, this certificate is issued only in the year 1999 and is, therefore, inconclusive. If anything, it only certifies existence of a 'new' plantation in the year 1999 when the acquisition was done in the year 1997. 29. In either case, compensation for trees falling below the line can not be provided under the provisions of Land Acquisition Act, 1894 since the trees in question are not planted on the land acquired by the Department of power but which only happen to be directly beneath the transmission line. 30. Section 18(3) of Indian Electricity Act, 1910 is relevant in this regard. For easy reference, Section 18(3) are reproduced below: Where any tree standing or laying near on {overhead line} or where any structure or other object which has been placed or has fallen near an {overhead line} subsequently to the placing of such line, interrupts or interferes with, or is likely to interrupt of interfere with, the conveyance of transmission of energy or the accessibility of any works a Magistrate of the first class or, in a presidency - town, the commissioner of Police, may, on the application of the licensee, cause the tree, structure or object to be removed or otherwise dealt with as he thinks fit. (4) When disposing of an application under Sub-section (3), the Magistrate or Commissioner of Police, as the case may be, shall, in the case of any tree in existence before the placing of the {overhead line}, award to the person interested in the tree such compensation as he thinks reasonable, and such person may recover the same from the licensee. 31. 31. From the above, it is clear that if the rubber trees planted by the Petitioner below the transmission line grow to a height where removing them or pruning them is considered necessary by the Power Department for safe operation of the transmission line, the Power Department will have to obtain permission from the Magistrate. 32. It is up to the Magistrate to award the Petitioner such compensation as he thinks reasonable for the damage to the trees, provided the Petitioner is able to prove to the Magistrate that the tree existed before the existence of the transmission line. 33. It would, therefore, appear that the grievances of the Petitioner is premature as he would have an opportunity to get the redressal from the Magistrate at the time the Department of Power decides to prune/remove the trees. 8. Learned Counsel appearing for the Respondent referring to the provisions of Section 34 of The Arbitration and Conciliation Act, 1996 has submitted that the Petitioner having had alternative mode of redressal, the writ petition is not maintainable. On the other hand, learned Counsel for the Petitioner referring to the provisions of Section 19 and 52 of the Indian Electricity Act, 1910, submits that the authority in the Power Department could not have acted as an arbitrator in view of clear mandate in Section 52 of the Act which provides for reference to 2 (two) Arbitrators, one each to be appointed by the parties to the dispute. 9. The prayer in the earlier writ petition has been noted above. The prayer of the Petitioner was for a reference to the Arbitrator in terms of Section 19 and 52 of the Indian Electricity Act, 1910. However, in consideration of the matter, this Court passed the above quoted order authorizing the Secretary to the Govt. of Tripura in the Department of Power to decide the dispute regarding entitlement of compensation. The said order having attained finality, this Court exercising the concurrent jurisdiction cannot sit on appeal so as to grant the prayer of the Petitioner for a reference of the dispute to Arbitration in terms of Section 52 of the Indian Electricity Act, 1910. 10. The order dated 5.5.2003 as communicated to the Petitioner by communication dated 15.7.2003 is also not under challenge in this proceeding. 10. The order dated 5.5.2003 as communicated to the Petitioner by communication dated 15.7.2003 is also not under challenge in this proceeding. The only prayer made in this writ petition is for a direction to the Respondents to refer the dispute to Arbitration invoking the provisions of Section 19 and 52 of the Indian Electricity Act, 1910. The same very prayer had been made in the earlier writ petition and the result thereof has been noticed above. This Court having not granted the said prayer and the only direction issued to the Secretary to the Govt. of Tripura in the Department of Power being to resolve the dispute, the prayer so made will have to be understood as rejected. That being the position, this Court cannot now reopen the issue. 11. The Power Department has passed the order dated 5.5.2003 and in respect of the existing trees, has made the above quoted observations. In fact, the observation made in the order is that the grievance of the Petitioner is pre-mature and that he would have an opportunity to get the redressal from the Magistrate at the time of the Department of Power deciding to prune/remove the trees. 12. In view of the above, this writ petition is disposed of with the liberty to the Petitioner to pursue such legal remedy as may be available in law and also in terms of the liberty granted to him by order dated 5.5.2003. 13. With the above observations, the writ petition stands disposed of, without however, any order as to costs.