THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA W.P.No.40524/2016 (GM – KEB) BETWEEN :
SRI MURALIDHAR SHANBHOGUE S/O A.JANARDHANA SHANBHOGUE AGED ABOUT 58 YEARS R/AT "SRI LAKSHMIDEVI NIVAS", ARYAPU VILLAGE P.O.KAIKARA-574220 PUTTUR TALUK (DK) ...PETITIONER (BY SRI M.SUDHAKAR PAI, ADV.) AND :
1 . THE DEPUTY COMMISSIONER AND DISTRICT MAGISTRATE, DAKSHINA KANNADA DISTRICT MANGALURU-575001 (DK) 2 . KARNATAKA POWER TRANSMISSION CORPORATION LTD., CORPORATE OFFICE, "KAVERI BHAVAN", BENGALURU-560 009 REP BY ITS DEPUTY GENERAL MANAGER (TECH) 3 . THE EXECUTIVE ENGINEER (ELECTRICAL) MAJOR WORKS DIVISION, KARNATAKA TRANSMISSION CORPORATION LTD., KAVOOR, MANGALURU-575015 (DK) …RESPONDENTS (BY SMT.NILOUFER AKBAR, AGA FOR R-1; SRI H.V.DEVARAJU, ADV. FOR R-2 & R-3; SRI N.K.GUPTA, ADV. FOR C/R-3.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE R-1 DEPUTY COMMISSIONER AND DISTRICT MAGISTRATE, D.K.DISTRICT, MANGALURU DATED 22.04.2016 VIDE ANNEXURE-M TO THE WRIT PETITION.
THIS PETITION COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner has assailed the order dated 22.4.2016 passed by the respondent No.1 Deputy Commissioner and District Magistrate, Dakshina Kannada District, Mangaluru in No.C.Dis.M.A.G(2)CR 299/2015- 2016/C4 whereby the order dated 28.11.2014 passed by the respondent No.1 has been re-affirmed directing the petitioner to approach the learned District Judge for compensation, if any.
2. Petitioner claims to be the owner of land in Sy.No.No.421/2 measuring 2 acres 10 guntas in Aryapu village, Puttur Taluk, D.K. The 2nd respondent has issued an official memorandum proposing to establish Sub Station at Madavu, Puttur Taluk, pursuant to which, Gazette Notification dated 25.3.2010 was issued by the 3rd respondent. The petitioner and his sister Smt. Varija having filed objections, the 3rd respondent has filed a petition before the respondent No.1 Deputy Commissioner and District Magistrate under Section 16(1) of the Indian Telegraph Act, 1885 (‘Act’ for short) r/w Section 164 of the Electricity Act, 2003. The 1st respondent has passed an order on 28.11.2014 permitting the KPTCL respondent No.2 to draw the electric lines over the lands of the petitioner, his sister and others. Being aggrieved, the petitioner and his sister had filed writ petition Nos.4202- 4203/2015 which came to be disposed of on 4.2.2015 remanding the matter to respondent No.1, pursuant to which, respondent No.1 has passed the order impugned herein. Being aggrieved, the petitioner is before this court.
3. Learned counsel Sri.M. Sudhakar Pai appearing for the petitioner would submit that a common order dated 4.2.2015 was passed by this court directing the respondent No.1 Deputy Commissioner to pass the orders providing one more opportunity to the petitioners therein. However, respondent No.1 has passed the order on 22.4.2016, only in respect of the petitioner herein. No orders were passed with respect to the petitioner No.2 in writ petition Nos.4202-4203/2015. It is submitted that no adjudication is made in terms of the directions issued by this court. The order passed at the first instance has been re-affirmed without proper application of mind inasmuch as the availability of the Government lands for drawing up of high tension wires. Learned counsel argued that in terms of section 10(d) of the Act, the respondent No.1 has to determine full compensation to the persons interested, if any damage sustained by them, by reason of exercise of powers under sub-section(c) of Section 10. On the other hand, the respondent No.1 without determining the compensation has directed the petitioner to approach the learned District Judge which is illegal and in contravention of the provisions of the Act. No statutory authorities can utilize the lands of the citizens without providing compensation for such utilization. The action of the respondent authorities is hit by Article 300-A of the Constitution of India.
4. Learned counsel for the respondent Nos.2 and 3 submitted that an order has been passed by the respondent No.1 with respect to petitioner No.2 in W.P.No.4202-4203/2015, sister of the petitioner herein, on 05.02.2019 which is in conformity with the order impugned herein. In view of the said order, the challenge made to the order impugned by the petitioner on the ground of discrimination deserves to be negated.
5. Learned counsel submitted that section 10(d) of the Act empowers the Telegraph Authority to determine the compensation for any damage sustained to the persons for utilizing their land by the authorities. Section 16(1) of the Act empowers the District Magistrate to order that the Telegraph Authority shall be permitted to exercise the power mentioned in Section 10 in respect of the property referred in clause (d) of the section. The Telegraph Authority in the present case has determined the compensation at Rs.1,05,692/- However, the petitioner has not come forward to collect the same. If the petitioner is aggrieved by the compensation determined, he is at liberty to proceed in terms of Section 16(3) of the Act. Learned District Magistrate has examined the feasibility of the lands for drawing up of the high tension lines as well as the installation of the tower in the lands in question and has rightly arrived at a decision.
6. Learned AGA supports the submission made by the respondent Nos.2 and 3.
7. I have carefully considered the submissions of the learned counsel for the parties and perused the material on record.
8. In view of the order passed by the respondent No.1 on 5.2.2019 placed on record before this Court, the first contention of the learned counsel for the petitioner that the petitioner alone is targeted and no order has been passed relating to his sister falls to ground. As regards the competency of the Deputy Commissioner and the District Magistrate to determine the compensation under Section 10(d) of the Act requires to be answered against the petitioner for the reason that Section 10(d) empowers the Telegraph Authority to determine the compensation. The Deputy Commissioner and District Magistrate-respondent No.1 is not the telegraph authority as construed in the Act nor any such power is conferred on the respondent No.1 in terms of Section 164 of the Indian Electricity Act, 2003. Section 16(1) of the Act, 1885 clarifies that if the exercise of the powers mentioned in section 10 in respect of the 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. The power of the District Magistrate is relating to the resistance or obstructions raised with reference to Section 10 of the Act. If any dispute arises concerning the sufficiency of the compensation to be paid under Section 10 (d), the matter has to be considered by the jurisdictional District Judge on the application filed for that purpose. Hence, the District Magistrate cannot be held to be faulted with, for not determining the compensation. On the other hand, it is brought on record by the respondent Nos.2 and 3 that such compensation has already been determined. If such compensation is not received by the petitioner, the respondent authorities are required to deposit the same in terms of section 16(4) of the Act.
9. However, the observations made by the respondent No.1 that the petitioner has to approach the learned District Judge for compensation is unjustifiable. As aforementioned, at the first instance, the compensation has to be determined by the Telegraph Authority under Section 10(d) of the Act and if there is any dispute regarding the sufficiency of such compensation, the matter has to be considered by the jurisdictional District Judge under Section 16(3) of the Act. However, in view of compensation already determined by the respondent Nos.2 and 3, this would not have any adversary effect on the order now impugned. Regarding the feasibility of the land which is based on the ground realities and factual aspects, the authority concerned has arrived at a finding based on the material evidence available on record and the same cannot be interfered by this court for no satisfactory reasons.
For the aforesaid reasons, writ petition stands disposed of with liberty to the respondent Nos.2 and 3 to deposit the determined compensation amount under Section 16(4) of the Act. If the petitioner is not satisfied, the proceedings can be initiated under Section 16(3) of the Act for enhancement of compensation.
Sd/- JUDGE Dvr: