IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF MARCH, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.45813/2017 (GM – KEB) BETWEEN:
SRI RAJESAB MUDNAL S/O SRI HASAN SAB MUDNAL AGED ABOUT 53 YEARS R/AT No.3, SHARAVATHI SANKNIRNA 3RD BLOCK, C.A.R. SOUTH ADUGODI POLICE QUARTERS ADUGODI, BANGALORE-560030. ... PETITIONER [BY SRI M.SREENIVASA, ADV.] AND:
1. THE STATE OF KARNATAKA DEPARTMENT OF POWER & ENERGY VIDHANA SOUDHA, M.S. BUILDING BANGALORE-560001 REP. BY ITS SECRETARY.
2. THE CHIEF ENGINEER [ELEC.] TRANSMISSION ZONE MAJOR WORKS [NORTH] DIVISION KPTCL, ANAND RAO CIRCLE BANGALORE-560009.
3. THE EXECUTIVE ENGINEER ELECTRICAL BMWND KRTCL, ANAND RAO CIRCLE BANGALORE-560009.
4. THE EXECUTIVE ENGINEER ELECTRICAL TL & SS DIVISION, KPTCL, NELAMANGALA BANGALORE RURAL DISTRICT-562123.
5. BANGALORE CITY POLICE HOUSING CO-OPERATIV SOCIETY LTD., PRESENTLY SITUATED AT I.G. & D.G. OFFICE NRUPATHUNGA ROAD, BANGALORE-560001 REP. BY ITS PRESIDENT.
6. THE NELAMANGALA TOWN PLANNING AUTHORITY BMRDA, URBAN AND RURAL NELAMANGALA BANGALORE RURAL DISTRICT BANGALORE-562123 REP. BY ITS ASSISTANT DIRECTOR. …RESPONDENTS [BY SMT JYOTHI.M., AGA FOR R-1;
SRI H.V.DEVARAJU, ADV. FOR R-2 TO R-4; SRI BIPIN HEGDE, ADV. FOR R-5;
SRI YOGESH D. NAIK, ADV. FOR R-6.] THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS FROM THE R-2 AND 3 WHICH ULTIMATELY RESULTED IN ISSUING THE COMMUNICATION ANNEXURE-A DATED 30.03.2017 AND THE ORIGINAL SANCTIONED PLAN DATED 16.01.2001 SANCTIONED BY THE R-6 PLANING AUTHORITY; QUASH THE COMMUNICATION ANNEXURE-A DATED 30.03.2017 ISSUED BY THE R-2 & 3 IN RESPECT OF PETITION SCHEDULE LAND; 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 called in question the correctness and illegality of the communication Annexure – A dated 30.03.2017 in respect of the petition schedule land and inter alia has sought for a direction to respondent Nos.2 and 3 to pass the award of compensation or alternatively to direct respondent Nos.2 and 3 to shift the HT lines and to erect the same as per the original alignment.
2. The petitioner is claiming to be the Head Police Constable working in City Armed Reserved Police in the Head Quarters, Mysore Road, Bangalore since 31 years. It appears that the petitioner has purchased the site bearing No.40 measuring East to West - 30 feet and North to South - 40 feet through a registered sale deed dated 06.10.2001 from his vendor pursuant to which the petitioner is claiming to be in possession and enjoyment of the aforesaid site. It is the grievance of the petitioner that at the time of approving the layout plan, there were about 107 sites formed which includes 6 odd sites. At the time of sanctioning the residential layout plan by the BMRDA, it was clearly indicated the CA, residential sites and also the proposed High Tension line. Such being the position, respondent Nos.2 and 3 without the knowledge and consent of the site owners knowing fully well about passing of High Tension line as per the C.D.P. plan, deliberately by-passed the original alignment of High Tension line, deviated the same and proceeded to erect the High Tension line towers No.11 and 12 in the residential layout, moreover on the site bearing No.40 belonging to the petitioner. It is alleged that the said deviation purported to have been done at the instance of the adjacent owners. It is the further grievance of the petitioner that respondent Nos.1 and 3 without compensating or following due process of law have erected the High Tension line over the site of the petitioner.
3. The communication dated 30.03.2017 of respondent No.3 is challenged mainly on the ground that the authorities are obligated to compensate the petitioner with the diminution of the land value in terms of the Indian Telegraph Act, 1885 (‘Act’ for short), however out rightly rejecting the compensation on the ground that the property is not acquired for construction of the tower and as per Act, 1885, there is no provision for land/site compensation from KPTCL is erroneous and illegal.
4. Learned counsel for respondent Nos.2 to 4 justifying the order impugned would submit that the petitioner, if aggrieved by the order/communication dated 30.03.2017, has to approach the learned District Judge in terms of Section 16(3) of the Act. The order/communication impugned at Annexure – A is passed keeping in mind the provisions of Section 10(d) of the Act, whereby the KPTCL is required to give compensation to the damages caused to the crops and trees, but the petitioner claiming to be the site owner, where there is no crops or trees cannot be considered to award compensation and the same requires to be confirmed.
5. Learned counsel appearing for the planning authority/respondent No.6 submits that the residential layout plan of the property in question has been approved by the planning authority.
6. Having heard the learned counsel appearing for the respective parties and perusing the material on record, it is evident that respondent No.3 has issued the communication/order in respect of the payment of compensation sought by the petitioner bearing site No.40 measuring 30 x 40 feet formed out of Sy.No.85 of Arisinakunte village, Kasaba Hobli, Nelamangala Taluk, Bengaluru Rural District, whereby it is communicated that as no property is acquired for construction of the tower and as per the Act, 1885, there is no provision for land/site compensation from KPTCL.
7. Section 10(d) of the Act provides that in the exercise of the powers conferred by the said 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.
8. Section 16(3) of the Act provides that 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.
9. It is well settled law that for the damages caused to the property, the respondent - authorities are obligated to pay full compensation for any damage sustained by the land owner by reason of the powers exercised by the concerned authorities. Since no land is acquired for construction of the tower, it is obvious that no compensation can be paid for the acquisition of land, but the compensation is necessarily to be paid for the damages sustained by the petitioner for the High- Tension wires erected over the property of the petitioner. Hence, the rejection of the compensation out-rightly sans considering the damages to be awarded as compensation is unsustainable and accordingly, the communication/order at Annexure – A cannot be approved.
10. Hence, the communication/order at Annexure – A impugned herein is quashed. The proceedings are restored to the file of the respondent No.3 to reconsider the same in accordance with law keeping in mind the provisions of Sections 10 and 16 of the Act. Such exercise shall be done by the respondent No.3 in an expedite manner, in any event, not later than eight weeks from the date of receipt of certified copy of the order.
All rights and contentions of the parties are left open.
With the aforesaid observations and directions, the writ petition stands disposed of.
Sd/- JUDGE PMR