Oral Judgment:
1. By consent of learned counsel for the parties, this writ petition is taken up for final hearing. Rule made returnable forthwith.
2. This petition challenges the legality and correctness of the order dated 19th September, 2011, passed by the learned Principal District Judge, Jalgaon, in Misc. Civil Appeal No. 65 of 2011, holding that the appeal was not maintainable, and that the District Court did not have jurisdiction to decide the Misc. Civil Appeal.
3. Facts leading to the litigation, in short, can be stated as under:-
“The petitioners have lands at village Pimpri Sekam, Taluka Bhusawal, District Jalgaon. Respondent No.3/licensee-company proposed to erect towers in the lands for transmission lines. Initially there was some resistance from the petitioners for the respondent No.3. So, respondent No.3 made an application to the Collector under the provisions of Rule 3 of the Works of Licencees Rules, 2006 (made under the provisions of Electricity Act, 2003) (henceforth the Rules) and secured such permission on 31st May, 2011. The Collector admittedly is the authority who could have passed such order. In addition to grant him permission, the Collector even directed respondent No.3 to pay certain amount as compensation to the petitioners.
4. Aggrieved by the quantum of compensation, the petitioners approached the District Court. They asserted that in view of Sections 10 and 16 of the Indian Telegraph Act, 1885, (the telegraph Act) even the District Judge has power to entertain their case seeking enhancement of the amount as an appeal. The learned District Judge rejected this contention holding that the provisions of the Electricity Act, 2003 (the electricity Act) and the Rules made therein provided not only equally efficacious remedy, but apparently the jurisdiction of civil court is ousted.
5. The question before this Court is, whether the jurisdiction of the District Judge as provided in Sections 10 and 16 of the Indian Telegraph Act, 1885, is ousted? If the answer to this is in affirmative, the next question is, whether the petitioners have choice of the forum viz. the District Court and the Appropriate Commission, as defined in the Electricity Act, 2003?
6. Before I advert to the above mentioned questions, I must mention that the learned District Judge did not get an opportunity to consider a proposition “whether the provisions are such that there could be two different forums available to an aggrieved party”. Before discussing the effect of the provisions, I would quote the relevant provisions.
7. Section 3(6) of the Indian Telegraph Act, 1885, defines term “telegraph authority’. It reads as under:-
“telegraph authority” means the Director-General of Posts and Telegraphs, and includes any officer empowered by him to perform all or any of the functions of the telegraph authority under this Act.”
Section 10 enumerates powers of telegraph authority for placing and maintaining telegraph lines and posts. It 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 Central Government, or to be so established or maintained;
(b) the 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 16 of the Act provides procedure for deciding disputes as regards the compensation which is made payable under the provisions of Section 10. It 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 this being exercised, he shall be deemed to have committed an offence under section 188 of the Indian Penal Code (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.”
8. The Telegraph Act, came into force long back and admittedly the powers and procedures prescribed by the provisions of this Act were adopted subsequently while enacting new Electricity Acts. Several Electricity Acts came into force since 1910, and the last Electricity Act was passed in the year 2003, which is now prevalent repealing the provisions of the earlier Acts. In the Electricity Act of 2003, Section 164 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 coordination 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.
This clause provides for the placing of electric lines or electrical plant for the transmission of electricity or for the purpose of telephone or telegraphic communications and confer upon any public officer, licensee or any other person engaged in the business of supplying of electricity under the proposed legislation, any of the powers of the Telegraph Authority.”
9. Admittedly, in this case, the appropriate Government is the State of Maharashtra. Pursuant to the powers conferred on the State of Maharashtra under Section 164 of the Electricity Act, 2003, it conferred the powers of Telegraph Authority to the 'transmission company' which in this case is respondent No.3. It is thus clear that the appropriate authority has conferred all powers which are available to the Telegraph Authority under Chapter-III of the said Act stood conferred on respondent No.3.
10. Besides this, under the relevant provisions of the Electricity Act, 2003, the Government has made various rules, including the Rules by name the Works of Licensees Rules, 2006. In Rule 3, similar provision to that of Section 10 of the Act is made giving similar powers to licensee. Rule 3 of said Rules reads as under:-
“3. Licensee to carry out works.- (1) A licensee may –
(a) carry out works, lay down or place any electric supply line or other works in, through, or against, any building, or on, over or under any land whereon, whereover or whereunder any electric supply-line or works has not already been lawfully laid down or placed by such licensee, with the prior consent of the owner or occupier of any building or land;
(b) fix any support of overhead line or any stay or strut required for the purpose of securing in position any support of an overhead line on any building or land or having been so fixed, may alter such support:
Provided that in case where the owner or occupier of the building or land raises objections in respect of works to be carried out under this rule, the licensee shall obtain permission in writing from the District Magistrate or the Commissioner of Police or any other officer authorised by the State Government in this behalf, for carrying out the works:
Provided further that if at any time, the owner or occupier of any building or land on which any works have been carried out or any support of an overhead line, stay or strut has been fixed shows sufficient cause, the District Magistrate or the Commissioner of Police, or the officer authorised may by order in writing direct for any such works, support, stay or strut to be removed or altered. (2) When making an order under sub-rule (1), the District Magistrate or the Commissioner of Police or the officer so authorised, as the case may be, shall fix, after considering the representations of the concerned persons, if any, the amount of compensation or of annual rent, or of both, which should in his opinion be paid by the licensee to the owner or occupier.
(3) Every order made by a District Magistrate or a Commissioner of Police or an authorised officer under sub-rule (1) shall be subject to revision by the Appropriate Commission.
(4) Nothing contained in this rule shall effect the powers conferred upon any licensee under section 164 of the Act.”
This rule thus gives an impression that besides the powers of the telegraph authority, respondent No.3 is also conferred (similar) powers under this Rule. The only difference between the provisions of Chapter-III of the Indian Telegraph Act, 1885, and Rule 3 of the Works of Licensees Rules, 2006, is that the disputes in respect of sufficiency of amount of compensation would go to different authorities. Chapter-III of the Indian Telegraph Act, 1885, provides forum of the District Court, whereas the above Rules provide forum of the Appropriate Commission. It is required to be mentioned that the Appropriate Commission is also empowered to decide disputes that are referred to it in similar fashion as that is done in the Civil Court. Sections 86, 94 and 95 of the Electricity Act, 2003, provides functions, powers and procedure of the Appropriate Commission.
11. Thus, there is a clear impression created by the provisions and the events that have taken place in this case that the petitioners were in a position to choose either of the forums mentioned above. Similar situation arose before the High Court of Himachal Pradesh in the case of Jai Parkash Hydro Power Ltd. v. Occhu Ram and Anr. (AIR 2007 Himachal Pradesh 29). In that case, the respondent/claimant first filed suit for recovery of compensation, damages etc. against the licensee-company alleging that while laying transmission lines etc, loss was caused to them. The licensee-company raised an objection with regard to jurisdiction of Civil Court. This objection was based upon the provisions of Section 67 read with Section 86 of the Electricity Act, 2003. The Civil Court, however, rejected this pleading and held that having regard to the provisions of the Electricity Act, 2003, the suit was maintainable. The matter was then taken to the High Court and the Court having regard to various provisions of the Act, held that there is no ouster of jurisdiction of Civil Court. While arriving at this conclusion, the Court analyzed the provisions of Section 145 of the Electricity Act, 2003, and held that the provisions do not oust entire jurisdiction of Civil Court. In order to know the view of the Court, it is better to quote the relevant portion of the above judgment, which reads as under:-
“10. Undoubtedly Section 145 clearly lays down that no Civil Court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which an Assessing Officer referred to in Section 126 or an Appellate Authority referred to in Section 127 or an Adjudicating officer appointed under the Act is empowered to determine etc. Determination and payment of compensation as occurring in Section 67 (2)(e) is not a matter covered by Section 145 of the Act. I fully agree with the view expressed by the learned Court below that if the Legislature intended to bar the Jurisdiction of Civil Courts with respect to each and every matter covered under the Act, nothing prevented it from saying so or specifying the same in so many words. By restricting the ouster of jurisdiction of Civil Court in Section 145 only to such matters as have specifically been mentioned in that Section, the Legislature conveyed its clear intention that the jurisdiction of a Civil Court shall be barred only with respect to such matters as are mentioned in Section 145. This apart, reliance has rightly been placed by the learned Court below upon Section 175 of the Act by holding that this Section clearly and unmistakably incorporates a specific provision of law that the provisions of 2003 Act are in addition to and not in derogation of any other law for the time being in force. It, therefore, clearly means that all the provisions of Civil Procedure Code are saved in so far as the application of 2003 Act is concerned.”
12. Learned counsel for respondent No.3 has no quarrel with the proposition of Law, quoted above, from the judgment of High Court of Himachal Pradesh. He said that, a suit for compensation etc. is certainly maintainable but the analogy will not apply to the selection of forum of District Court under Section 16 of the Indian Telegraph Act, 1885. However, there can be no doubt having regard to the reasons mentioned above. The proposition that the order passed by the authority under Rule 3 of the Works of Licensees Rules, 2006, is assailable before two forums. I have already discussed the reasons to support this proposition.
13. As mentioned above, since the powers under the provisions of Sections 10 and 16 of the Act are still conferred on the licensee-company, the provisions of Sections 10 and 16 of the Act are still in realm. As said above, even the provisions of Rule 3 of the Works of Lincesees Rules, 2006, are equally holding the field as far as similar dispute is concerned. There is no provision in the Electricity Act, 2003, which provides exercising such powers under Section 164 conferring the powers under Chapter-III of the Indian Telegraph Act, 1885, to the authorities under the Electricity Act, 2003. In fact, Section 175 of the Electricity Act, 2003, very clearly mentions that the provisions of the Act are in division and not in derogation of any other law. The words and any other law includes provisions of Chapter-III of the Indian Telegraph Act, 1885. Even the Division Bench of this Court in the case of VivekBrajendra Singh v. State Government of Maharashtra (2012 (4) Mh.L.J. 625), inter alia held in paragraph No. 29 of the judgment that powers under Chapter-III of the Indian Telegraph Act, 1885, are still available to the authorities under the Electricity Act, 2003.
In view of this, the petition should succeed.
ORDER
1. Writ Petition is allowed.
2. The impugned order is set aside.
3. Learned District Judge shall decide the application which is wrongly registered as Misc. Civil Appeal, as per the provision of Law.
4. In addition to this, it is made clear that pendency of the proceedings before the District Court shall not prevent the authorities from enforcing the work of laying lines.
5. Parties shall appear before the lower Court on 24th September, 2012.
6. Rule is made absolute.