Court No. - 39
Case :- WRIT - C No. - 36157 of 2018 Petitioner :- Kapildev Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Ashok Kumar Chaubey,Shalendra Kumar Counsel for Respondent :- C.S.C.,Pratik J. Nagar
Hon'ble B. Amit Sthalekar,J. Hon'ble Rajiv Joshi,J.
Heard Sri Ashok Kumar Chaubey, learned counsel for the petitioner, Sri Pratik J. Nagar, for the respondent no.4 and learned Standing Counsel for respondents no. 1 & 2.
No one appears for respondent no.2.
The petitioner in the writ petition is seeking quashing of the order dated 25.6.2018 passed by the District Magistrate, Sonebhadra.
Briefly the facts of the case, as stated in the writ petition, are that the petitioner is a Bhumidhar with transferable rights over the land, Arazi No. 18mi, area - 1.0330 hectare, Village Naugaon Khurd, Orgaee, Pargana - Badhar, Tehsil- Roberstganj, Sonebhadra. Over his land the Electricity Department has established a high transmission tower for stringing high power tension lines of 132 KVA. The petitioner's grievance is that in the process his wheat crop has been destroyed and before establishing the tower his consent was not taken and the land has been grabbed by the Electricity Department for which he is claiming compensation as well as damages for the destroyed wheat crop.
The petitioner had earlier filed W.P. No. 9109 of 2018, (Kapildev Vs. State of U.P. and other) which was disposed of by a Bench of this Court by order dated 12.3.2018 with a direction to the respondent no. 2, District Magistrate, to decide the petitioner's representation dated 15.2.2018. It is in pursuance of the direction of the High Court that the impugned order dated 25.6.2018 has been passed. The impugned order refers to the petitioner's representation dated 16.5.2018 filed along with the copy of the order of the High Court. The District Magistrate in his order has directed the petitioner to produce the records of Khatauni etc. to show his ownership over the land in question and if such documents are filed and proved to the satisfaction of the Authority then the damage suffered by the petitioner would be compensated.
The petitioner in para 13 of the writ petition states that he has produced all the documents before the District Magistrate. What are those documents, have not been disclosed in the writ petition nor a copy of those documents has been filed to show on what date and under whose receiving the documents have been filed before the District Magistrate. He submits that his documents have already been filed with the representation dated 15.2.2018 but the copy of representation dated 15.2.2018 has also not been filed with writ petition.
However, considering that the District Magistrate has still given time to the petitioner to produce his documents, in our opinion this writ petition challenging the order dated 25.6.2018 is premature.
Sri Pratik J. Nagar, learned counsel for the respondent submits that under Section 164 of the Electricity Act, 2003 the authority has to take steps to pass order under Indian Telegraph Act, 1885. Section 164 of the Electricity Act, 2003 reads as under:-
"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."
He has also referred to Section 10 of the Indian Telegraph Act,1885 and submits that under Clause- (d) of Section 10 it is provided that 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) the authority shall pay full compensation to all persons interested for the damage sustained by them by reason of the exercise of those powers. Section 10 (d) of the Indian Telegraph Act, 1885 reads as under:-
"10 (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."
He further submits that against an order, passed under Section 10 (d) of the Indian Telegraph Act, 1885, if there is any dispute with regard to compensation, the telegraph authority shall pay the same in the Court of the District Judge and the District Judge after giving notice to the parties and hearing them shall determine the persons entitled to receive the compensation as the case may be, under Section 16 (3) of the Indian Telegraph Act, 1885. Section 16 (3) of the Indian Telegraph Act, 1885 reads as under :-
" 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."
Sri Pratik J. Nagar therefore, submits that the District Magistrate as yet has not passed any final order and if the petitioner produces his documents of title in respect of land in question, the District Magistrate shall pass appropriate orders and thereafter if there is any dispute the petitioner has a remedy of approaching the District Judge under Section 16(3) of the Indian Telegraph Act, 1885.
Therefore, on a consideration of the facts of the case and legal submissions of the learned counsel for the respondents we find that this writ petition is premature. The petitioner if so advised may approach the District Magistrate and file his title documents or any other document as he may consider fit in determination of his case before the District Magistrate.
In view of the aforesaid the writ petition stands dismissed.
Order Date :- 31.10.2018 Vandana