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2018 DIGILAW 2139 (HP)

A. D. Hydro Power Ltd. v. Juglu Ram

2018-12-03

SANDEEP SHARMA

body2018
JUDGMENT : SANDEEP SHARMA, J. 1. Instant petition filed under Article 227 of the Constitution of India is directed against the order dated 22.8.2017, passed by the learned District Judge, Kullu, District Kullu, H.P, whereby two separate applications filed by the parties to the lis came to be disposed of by a common judgment, petitioner-applicant (hereinafter referred to as “the applicant”), being aggrieved and dissatisfied with passing of order dated 30.5.2014, passed by the learned Deputy Commissioner, Kullu, on the application having been made by the respondent herein, seeking therein compensation to the tune of Rs. 8 lac, on account of damage to his house and property by the applicant while laying transmission line, preferred a petition under Section 16 (3) of the Indian Telegraph Act, 199 (in short “the Act”), in the court of learned District Judge. Similarly, respondent who had earlier filed petition before the Deputy Commissioner, Kullu, and was awarded sum of Rs. 4 lac on account of damages caused to his house and property by the applicant while laying transmission line also approached the District Judge Kullu, District Kullu, under Section 16 (3) of the Act, praying therein for enhancement of compensation. Learned District Judge vide common judgment dated 22.8.2017, dismissed both the applications having been filed by the applicant as well as respondent and as a consequence thereof, order dated 30.5.2014, passed by the learned Deputy Commissioner, Kullu, H.P., came to be upheld. In the aforesaid background, applicant has approached this Court in the instant proceedings, praying therein to set-aside impugned order passed by the learned District Judge as well as Deputy Commissioner, being passed without jurisdiction. 2. Having heard parties and perused material available on record vis-à-vis reasoning recorded in the impugned orders referred herein above, this Court is persuaded to agree with the contention of Ms. Jyotsna Rewal Dua, learned Senior counsel representing the applicant that Deputy Commissioner, Kullu, had no authority whatsoever to award compensation, if any, to the respondent on account of damage to the house and property by the applicant while erecting towers and laying transmission line, while exercising power under Section 16 (3) of the Act. 3. Jyotsna Rewal Dua, learned Senior counsel representing the applicant that Deputy Commissioner, Kullu, had no authority whatsoever to award compensation, if any, to the respondent on account of damage to the house and property by the applicant while erecting towers and laying transmission line, while exercising power under Section 16 (3) of the Act. 3. It would be apt to reproduce Section 10 of the Act, which reads as under: “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 immovable 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 1 [Central Government], or to be so established or maintained; (b) the 1 [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.” Section 10 of the Act, provides that telegraph authority may from time to time, place and maintain telegraph line under, over, along, or across, and posts in or upon, any immovable property. 4. Section 16 of the Indian Telegraph Act, 1885, reads as under: “16. Exercise of powers conferred by section 10, and disputes 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 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. (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.” Section 16 of the Act provides that 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, meaning thereby, in the event of dispute, if any, on account of laying of transmission line or erection of towers, authority responsible for laying transmission line would approach the District Magistrate, who in turn shall ensure that no obstruction is caused on the spot for laying the transmission line. Similarly, Section 16 (3) provides that if there is any dispute with regard to sufficiency of compensation to be paid under Section 10 clause (d), an application in this regard shall be made by either of the disputing party to the District Judge, within whose jurisdiction the property situates. Careful reading of clause 16 (3) clearly suggests that dispute with regard to sufficiency of compensation, which otherwise at the first instance is to be paid by the agency laying transmission itself, is to be determined by the District Judge only, not by the District Magistrate. Similarly, perusal of Section 16 (4) and (5) further suggests that in the event of dispute with regard to the apportionment inter-se parties qua the share of compensation, determination of the dispute by the District Judge, under sub-section (3) or sub-section (4), shall be final. 5. In the case at hand, facts as emerge are that respondent, whose property came to be used for erection of towers and laying of transmission lines by the applicant, applied to Deputy Commissioner, Kullu, HP, under Section 16 (3) of the Act, seeking therein compensation to the tune of Rs. 8 lac, who vide order dated 11.11.2013, while taking cognigence of the aforesaid application, having been filed by the respondent, directed, SDM, Kullu, to furnish report. Careful perusal of this order suggests that Deputy Commissioner referred to notification of Government of India dated 18.4.2006 issued in exercise of power conferred under Clause-(3) of Sub Section (2) of Section 176 read with sub-section (2) of Section 67 of the Electricity Act, 2006, authorizing the District Magistrate to fix compensation payable to owner by the licensee. In the aforesaid order, Deputy Commissioner also took cognigence of the judgment dated 17.3.2010, passed by the Division Bench of this Court in CWP No. 513 /2007 titled A.D. Hydro Project v. State of H.P. 6. Ms. Jyotsna, learned Senior Counsel, during arguments invited attention of this Court to the aforesaid notification, perusal whereof clearly suggests that reliance placed by the Deputy Commissioner, on the notification, is totally mis-placed. Aforesaid notification dated 18.4.2006, is issued by the Central Government. Ms. Jyotsna, learned Senior Counsel, during arguments invited attention of this Court to the aforesaid notification, perusal whereof clearly suggests that reliance placed by the Deputy Commissioner, on the notification, is totally mis-placed. Aforesaid notification dated 18.4.2006, is issued by the Central Government. Clause 4 of the notification clearly provides that “nothing contained in this rule shall affect the powers conferred upon any licensee under section 164 of the Act.” At this stage, it would be profitable to take note of Section 164 of the Electricity Act, 2003, herein below:- “Section 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 of telegraph lines and posts for the purposes of a telegraph established or maintained, by the Government or to be so established or maintained.” 7. Careful perusal of aforesaid provision of law contained under Section 164 of Indian Electricity Act, clearly suggests that an appropriate government by order in writing for placing of electric lines or electrical plants for the transmission of electricity, confer upon any public officer, licensee or any other person engaged in the business of supplying electricity under the Act, any of the powers, which the telegraph authority possesses under that Act with respect to the placing of telegraph lines and posts, subject to conditions and restrictions, if any, as the appropriate Government, may think fit to impose and to the provisions of the Indian Telegraph Act, 1885. Bare reading of aforesaid provision of law suggests that an appropriate Government with a view to ensure smooth laying of transmission of electricity or telephone lines, may impose conditions as it may think fit and also resort to the provisions of Indian Telegraph Act, 1885. 8. Bare reading of aforesaid provision of law suggests that an appropriate Government with a view to ensure smooth laying of transmission of electricity or telephone lines, may impose conditions as it may think fit and also resort to the provisions of Indian Telegraph Act, 1885. 8. Otherwise also, notification dated 23.5.2016, issued by the HP State Electricity Board suggests that it also framed similar rules under Sections 67 and 68 of the Electricity Act, 2003, which are para-materia to the Electricity Central Rules and it also contains similar conditions that nothing contained in this rule shall effect the powers conferred upon any licensee under Section 164 of the Act. Under Section 16 (3) of the Act, which has been reproduced supra, specific authority i.e. District Judge, has been prescribed for determining compensation qua the damage to the house and property by the licensee while erecting towers and laying transmission lines and as such, determination of compensation by the Deputy Commissioner, drawing strength from the notification referred herein above, is totally without jurisdiction and against the Statute, which otherwise specifically provides for the remedy. 9. In view of the discussion made herein above, this Court is persuaded to agree with Ms. Jyotsna Rewal Dua, learned Senior counsel that Deputy Commissioner Kullu, had no jurisdiction at all to determine the compensation while exercising power under Section 16 (3) of the Act, drawing strength, if any, from the aforesaid notification, Rule 3 (4) whereof clearly provides that under Section 164 of the Act, authority responsible for laying transmission lines can prescribe/formulate certain guidelines, but subject to such conditions and restrictions, if any, as the appropriate Government may think fit to impose and to the provision of the Indian Telegraph Act, 1885 (13 of 1885). 10. As far as judgment rendered by the Division Bench of this Court in CWP No. 513 of 2007 is concerned, this Court is not persuaded to agree with Mr. 10. As far as judgment rendered by the Division Bench of this Court in CWP No. 513 of 2007 is concerned, this Court is not persuaded to agree with Mr. G.R. Palsra, learned counsel that in view of the mandate given in that judgment, Deputy Commissioner was duty bound to determine the compensation under Section 16 (3) of the Act, because bare perusal of judgment clearly suggests that petitioner therein had approached the Court in altogether different circumstances and by way of that petition, petitioner had prayed that a direction may be issued to the respondent to ensure that petitioner company is able to carry out transmission work of the time bound 192 MW Hydro Electric Power Project peacefully in spite of the objections of the owners/occupiers/any person claiming any interest on the land over which the towers are to be constructed. Petitioner therein also prayed that respondent be directed to make available to the petitioner, lands where the towers as per its approved scheme scheme/surveys are to be erected and the transmission lines are to be laid out. In the aforesaid petition, petitioner also prayed that respondent may also be directed to specify any agency/officer with which the petitioner company is required to deposit the compensation for the damage qua the land over which transmission towers of the Project is proposed to be erected. Division Bench of this Court having taken note of the pleadings adduced on record by the respective parties, held that Section 118 of the HP Tenancy and Land Reforms Act, 1972, is not applicable in the present case and directed the State Government and authorities concerned to render helping hand to the petitioner so that developmental project is able to commence the commercial production at least by 1.6.2010. But since land owners were not allowing the company to erect towers despite readiness of the company to pay compensation, Division Bench directed the Deputy Commissioner to ensure that compensation is paid to the land owners and no unnecessary delay is caused for the enhancement of the project. Leaving everything aside, this court is in full agreement with Ms. Dua that there cannot be any direction against the statute. Leaving everything aside, this court is in full agreement with Ms. Dua that there cannot be any direction against the statute. When Section 16 (3) specifically provides that in the event of dispute inter-se parties with regard to the compensation, it is only District Judge, who is competent to decide the dispute inter-se parties, within whose jurisdiction the property is situate. In the case at hand, as has been discussed herein above, Deputy Commissioner has wrongly determined the compensation taking cognigence of the application having been filed by the respondent under Section 16 (3), which is/was otherwise not maintainable before it and as such, order, if any, passed by it on that application cannot be allowed to sustain being passed without any jurisdiction. 11. Interestingly, in the case at hand, learned District Judge while deciding the application filed by the applicant under Section 16 (3), which otherwise is the only prescribed mode under the Act to dispute the compensation, failed to decide the specific objections raised by the applicant, rather he without deciding the question of maintainability/competence of Deputy Commissioner, to decide proceedings under Section 16 (3), proceeded to decide the application filed under Section 16 (3) by the respondent that too in the proceedings filed by the applicant under Section 16 (3), which was definitely filed against the order passed by the Deputy Commissioner. Careful perusal of impugned order passed by the learned District Judge, clearly suggests that it while deciding the application having been filed by the respondent under Section 16(3) placed sole reliance upon report which was called for by the Deputy Commissioner pursuant to application filed by the respondent, seeking therein compensation under Section 16 (3) from the SDM. It is not in dispute that respondent while prosecuting his case under Section 16 (3) before the District Judge, did not adduce on record any evidence, in support of his claim, rather reliance, if any, is/was placed upon report of the SDM, which was admittedly called for by the District Judge in the proceedings initiated by it under Section 16 (3) of the Act, which was beyond its jurisdiction. Since proceedings initiated by the Deputy Commissioner under Section 16 (3) were also beyond his jurisdiction, report, if any, called in those proceedings could not be relied upon by the District Judge while determining the compensation, if any, in the application having been filed by the respondent under Section 16(3) of the Act, that too, in the petition having been filed by the petitioner herein, laying therein challenge to order passed by the District Judge, whereby he without jurisdiction awarded sum of Rs. 4 lac as compensation. 12. Reliance is placed on judgment passed by co-ordinate Bench of this Court in case titled “Nar Singh Dass v. Union of India through Secretary (Power and Energy), GOI, New Delhi and Ors,” 2013 (2) Shim.LC 879 , relevant para whereof is reproduced herein below:- 4. In Power Grid Corporation of India Limited versus Basant Singh and others, LPA 204 of 2007, decided on 21st May, 2010, Division Bench of this Court presided over by Hon’ble the Chief Justice has considered the provisions of Indian Telegraph Act, 1885. Adverting to the provisions of Section 10 and 16, this Court holds: “2. Under Section 10(d) it is clear that the Telegraph Authority while exercising power conferred under the Section for drawing the line or placing a post etc. it shall do as little damage as possible and in case there is any damage it shall pay full compensation to all persons interested for any damage sustained by them by reason of the drawing line or placing tower. By a separate Notification this Act has been made applicable to exercise of the powers by the appellant under the provisions of erstwhile Indian Electricity Act, 1910 read with Electricity (Supply) Act, 1948. Under Section 16 of the Indian Telegraph Act, if there is any dispute on sufficiency of the compensation, it is open to the disputing party to approach the District Judge of competent jurisdiction for adjudication regarding sufficiency of compensation. The provision reads as follows:- “16(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.” 3. The provision reads as follows:- “16(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.” 3. Under Section 10(d) of the Indian Telegraph Act, 1885 what is contemplated is the compensation for the damage caused to a property by drawing an electric/ telegraph line or placing a tower. It is not the compensation as understood under the Land Acquisition Act where the land itself is acquired. Once the land is acquired, the party from whom land is acquired ceases to be owner of the property and ownership, title and possession, after acquisition vests in the acquisitioning/ requisitioning authority. As far as the exercise of power for drawing of telegraph line or placing a tower etc. is concerned, the party is never divested of its ownership or title or possession. It is only a permissive use which is given a statutorily status. In the process, no doubt, the owner might suffer some injury. That injury is to be compensated in terms of the extent of injury like the adverse impact on the prospects of income or use of the property. It can never be land value as such since, as we have already stated above, the owner is never divested of his title, ownership or possession. But at the same time injury certainly could be there. Under Section 10(d) or in exercise of power under Section 16(3) the question only shall be as to what is the extent of injury to the property over which line is drawn or tower is placed, to be compensated in terms of money and nothing more. 4. Having analysed the legal position as above, and on going through the factual position in the present case, we find that the learned District Judge has misdirected himself in granting the land value itself by way of compensation by comparing the value of the property in the vicinity. That method is to be adopted, only when the Court exercises its power under Section 18 of the Land Acquisition Act, 1894 for the purpose of deciding land value in a case duly referred to the Court after acquisition of the property. That method is to be adopted, only when the Court exercises its power under Section 18 of the Land Acquisition Act, 1894 for the purpose of deciding land value in a case duly referred to the Court after acquisition of the property. The power that is exercised under Section 16(3) of the Indian Telegraph Act is not akin to the power exercised by the Reference Court under the Land Acquisition Act, 1894.” 13. Consequently, in view of the discussion made herein above as well as judgment relied upon, it is quite apparent that power under Section 16 (3) of the Act for determining the compensation could only be exercised by the District Judge, not by the Deputy Commissioner and as such, impugned order dated 11.11.2013 passed by the learned Deputy Commissioner Kullu, is held to be void and illegal having passed without jurisdiction. Similarly, impugned order dated 22.8.2017, passed by the learned District Judge, Kullu, also cannot be allowed to sustain in view of the detailed discussion made herein above and as such, both the orders are quashed and set-aside. However, liberty is reserved to the respondent to file appropriate proceedings, if required and desired before appropriate court of law in accordance with law for compensation. Since matter remained pending adjudication before this Court as well as courts below, plea of limitation would not be raised in case respondent approaches the appropriate court of law for redressal of his grievances, within a period of two months from the date of passing of judgment.