IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA W.P.No.56041/2018 (GM – KEB) BETWEEN :
SRI GANESH KAMATH SHEVGOOR S/O LATE S.ANNAPPA KAMATH AGED 80 YEARS, No.502, BLOCK-I KRISHNA APTS. 13, ALI ASKER ROAD, BANGALORE-560052. ...PETITIONER (BY Ms. ANNU BHARDWAJ, ADV. FOR Mr. HARI KRISHNA HOLLA, ADV.) AND :
1. THE ASSISTANT EXECUTIVE ENGINEER No.2, SUB-DIVISION, MESCOM, KAVOOR, MANGALORE-575015.
2. THE EXECUTIVE ENGINEER (ELE) KARNATAKA POWER TRANSMISSION CORPORATION LTD., ATTAWAR, MANGALORE-575001 3. MANGALORE ELECTRICITY SUPPLY COMPANY LIMITED, GOVERNMENT OF KARNATAKA UNDERTAKING OFFICE OF THE CHIEF ENGINEER ELECTRICITY O & M ZONE, A.B. SHETTY CIRCLE, MANGALORE-575005 REP. BY ITS CHIEF ENGINEER (ELECTRICITY) ….RESPONDENTS (BY Mr. H.V.DEVARAJU, ADV.) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE LETTER DATED 15.03.2016 (ANNEXURE-H) ISSUED BY THE RESPONDENT AS NULL AND VOID AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner has challenged the letters dated 15.3.2016 and 04.04.2018 issued by the respondent as per Annexures-‘H’ and ‘L’ to the writ petition interalia seeking a direction to the respondents to pay compensation of Rs.10 lakhs for illegally erecting high tension lines in the property of the petitioner without informing him and without obtaining his consent, thereby making his property unusable and for other similar reliefs.
2. Writ petition is confined only to the prayers (i) and (ii) as per the submission made by the learned counsel for the petitioner which reads thus:
(i) Issue a writ in the nature of Certiorari or any other appropriate writ, direction or order quashing the letter dated 15th March 2016 (Annexure-H) issued by the respondent as null and void;
(ii) Issue a writ in the nature of Certiorari or any other appropriate writ, direction or order quashing the letter dated 04.04.2018 (Anneuxre-L) issued by the respondent as null and void.
3. It is the grievance of the petitioner that high tension lines were drawn 30 years ago in the property of the petitioner without awarding any damages; On the request made by the petitioner for shifting of the high tension lines, communication has been issued by the respondents that if the petitioner is willing to carry out the work under Self Execution Basis, the line will be shifted to the edge of his land which is contrary to Section 17(1) and the proviso thereof, of the Indian Telegraph Act, 1885 (‘Act’ for short).
4. Learned counsel appearing for the petitioner elaborating the arguments on this aspect placed reliance on the order of the High Court of Patna in the case of Smt.Durgesh Nandani Vs. State of Bihar and others reported in S.W.J.C.No.4536 of 1999 (D.D.3.12.1999).
5. Learned counsel for the respondents made an endeavour to contend that the petitioner has to make necessary representation/request for shifting of the high tension lines. If the Telegraph Authority omits to comply with such request/representation, the petitioner may apply to the District Magistrate within whose jurisdiction the property is situated to order the removal or alteration in terms of Sub-section(2) of Section 17 of the Act. Unless such proceedings are adjudicated upon, no writ petition is maintainable.
6. I have carefully considered the rival submissions made by the learned counsel appearing for the parties and perused the material on record.
7. Section 17 of the Act reads thus:
“17. Removal or alteration of telegraph line or post on property other than that of a local authority: (1) When, under the foregoing provisions of this Act, a telegraph line or post has been placed by the telegraph authority under, over, along, across, in or upon any property, not being property vested in or under the control or management of a local authority, and any person entitled to do so desires to deal with the property in such a manner as to render it necessary or convenient that the telegraph line or post should be removed to another part thereof or to a higher or lower level or altered in from, he may require the telegraph authority to remove or alter the line of post accordingly:
Provided that, if compensation has been paid under section 10, clause (d) he shall, when making the requisition, tender to the telegraph authority the amount requisite to defray the expense of the removal or alteration, or half of the amount paid as compensation, whichever may be the smaller sum.
(2) If the telegraph authority omits to comply with the requisition, the person making it may apply to the District Magistrate within whose jurisdiction the property is situated to order the removal or alteration.
(3) A District Magistrate receiving an application under sub-section (2) may, in his discretion reject the same or make an order, absolutely or subject to conditions, for the removal of the telegraph line post to any other part of the property or to higher or lower level or for the alteration of its form; and the order so made shall be final.”
8. Section 10 of the Act empowers the authority to enter a private land and to fix and install the telegraph lines, posts etc., Section 17 gives the land owner the right to seek for removal or alteration of telegraph line or post. If the land owner had not received the compensation under Section 10(d), no expenses to be incurred for removal or alteration of the lines by the land owner.
9. Indisputably, neither approval or consent of the petitioner was taken by the respondent-Authority nor any damages has been paid for erecting the lines in the land of the petitioner. In such circumstances, Section 17(1) and the proviso thereof would squarely attract. Hence, the communication dated 04.04.2018, requires to be set aside. The petitioner shall make a request or representation to the Asst. Executive Engineer, Mangalore, to shift the high tension lines to the edge of his land and on such request being made, the respondent-Authority shall consider the same in terms of Section 17(1) and the proviso thereof, without insisting for carrying out the work under Self Execution Basis.
With the aforesaid observations and directions, the writ petition stands disposed of.
Sd/- JUDGE Dvr: