Karnataka High Court
Sri A R Rajanna vs Assistant Executive Engineer on 5 July, 2018
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY, 2018
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION Nos.26557-26559/2018(GM-KEB)
BETWEEN:
1. SRI A. R. RAJANNA,
S/O LATE RAMEGOWDA
AGED 66 YEARS
COFFEE PLANTER
R/O OF KEMBATHMAKKI ESTATE
DARADAHALLI VILLAGE,
JOGANNANAKERE POST,
MUDIGERE TALUK,
CHIKAMAGALURU - 577132.
2. SRI M. R. NAGARAJ,
S/O M. S. RAME GOWDA
AGED 52 YEARS,
COFFEE PLANTER,
R/O DARADAHALLI VILLAGE,
JOGANNANAKERE POST,
MUDIGERE TALUK,
CHIKKAMAGALURU - 577132
... PETITIONERS
(BY SRI P. P. HEGDE, ADVOCATE)
AND:
1. ASSISTANT EXECUTIVE ENGINEER,
MESCOM,
MUDIGERE SUB DIVISION
MUDIGERE, MUDIGERE TALUK
CHIKKAMAGALURU DISTRICT - 577101
2. EXECUTIVE ENGINEER
MESCOM
MUDIGERE SUB DIVISION,
2
MUDIGERE, MUDIGERE TALUK,
CHIKKAMAGALURU DISTRICT - 577101.
3. DEPUTY COMMISSIONER,
CHIKKAMAGALURU DISTRICT,
CHIKKAMAGALURU - 575101.
... RESPONDENTS
(BY SRI M.C. NAGASHREE, ADVOCATE FOR R1 AND R2;
SMT. M. JYOTHI, AGA FOR R3)
...
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DIRECT RESPONDENT NOS.1 AND 2 TO CONSIDER THE
REPRESENTATION DATED 11.4.2017 VIDE ANNEXURE-C AND
REPRESENTATION DATED 30.12.2017 VIDE ANNEXURE-E
SUBMITTED BY THE PETITIONERS.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners have filed these present writ petitions for a writ of mandamus directing respondent Nos. 1 and 2 to consider their representation dated 11.4.2017, 30.12.2017 and 21.6.2017 as per Annexures-C, D and E and restraining respondent Nos.1 and 2 from drawing or laying power lines through or across the schedule 'A' and 'B' lands without obtaining the permission from the District 3 Magistrate/respondent No.3 in terms of Section 16(1) of the Indian Telegraph Act, 1885.
2. It is the case of the petitioners that they are the agriculturists and owners of the agricultural lands in possession of Sy.Nos.125 and 124 of Daradahalli Village, Kasaba Hobli, Mudigere Taluk, Chikmagaluru District described in the schedule and as per Annexures-A and B respectively.
3. It is the contention of the petitioners that they have raised Coffee, Silver Oak Trees, Pepper Creeps and Arecanut Plantation in the said properties. Respondent Nos. 1 and 2 were trying to forcibly draw high tension power lines through schedule A and B lands by erecting electric poles on the said lands. Hence, the petitioners made representation to respondent Nos.1 and 2 objecting the proposed laying of the powers lines in their properties. They also made representation to the 3rd respondent not to grant any permission to respondent 4 Nos. 1 and 2 for laying the power lines through the schedule properties. The said representations were not at all considered by the respondents nor passed any orders till today. Therefore, the petitioners are before this Court for the relief sought for.
4. I have heard the learned Counsel for the parties to the lis.
5. Sri H.N. Divyatej, learned Counsel for the petitioners contended that the impugned action of respondent Nos. 1 and 2 drawing power lines through the properties of the petitioners is illegal, unauthorized and violative of the fundamental rights of the petitioners; respondent Nos. 1 and 2 without following the procedure as contemplated, cannot proceed further and inspite of repeated representations made, they have neither considered nor passed any orders. In support of his contentions, he has relied upon the Division Bench judgment of this Court in the case of Thirthesh A.S. -vs- 5 The Under Secretary to the Government of Karnataka, Department of Power Corporation and Others reported in ILR 2006 Kar. 4164 to the effect that if the respondents intend to draw high tension power lines over the lands of the appellant's, in view of the resistance and obstruction already offered by the appellant, respondents shall seek permission from the District Magistrate under Section 16(1) of the Indian Telegraph Act and the District Magistrate shall consider and pass appropriate orders in accordance with law. Therefore, he sought to allow the writ petitions.
6. Smt. M.C. Nagashree, learned Counsel for respondent Nos. 1 and 2 and Smt. M. Jyothi, learned AGA for respondent No.3 fairly submit that the representations of the petitioners will be considered and appropriate orders will be passed within a reasonable period, if not already considered and disposed of. 6
7. Having heard the learned Counsel for the parties, it is undisputed fact that the petitioners are the owners of the properties morefully described in 'A' and 'B' schedule properties in question and according to the petitioners, respondent Nos. 2 and 3 are forcibly drawing high tension lines through the schedule properties and if it is allowed to draw the said lines, the petitioners will be put to great hardship and cannot be compensated in terms of the money. Therefore, they filed applications resisting drawing of lines in their lands as per Annexures-C, D and E. Before taking further action in all fairness, the respondents ought to have considered the representations of the petitioners and passed orders, but the same has not been done in the present case.
8. This Court in the case of Thirthesh stated supra has specifically recorded a finding at para-4 relying upon the Full Bench decision of the Kerala High 7 Court in Bharat Plywood and Timber Products Private Ltd.,-vs- Keerala State Electricity Board, Trivandrum and Others reported in AIR 1972 Kerala 47 reads as under:
4. In Paragraph 23 of the decision in Bharat Plywood and Timber Products Private Ltd. v. K.S.E. Board, Trivandrum (supra), the Court held as follows:
"It is clear from the wording of Section 16, and particularly from the expression 'the District Magistrate may, in his discretion', that an order will not be forthcoming automatically. A District Magistrate may in his discretion in a given case refuse or decline to pass an order that the telegraph authority shall be permitted to exercise the powers. The wording is significant. The District Magistrate does not grant permission to the authority. But he orders that the authority 'shall be permitted.' The discretion conferred by the section on the District Magistrate is certainly a judicial discretion, and, in cases where the District Magistrate refuses to pass an order that the telegraph authority 8 shall be permitted to exercise the powers mentioned in Section 10, it is inconceivable that the telegraph authority may, notwithstanding such refusal, continue to exercise such powers. The wording of the section is thus itself indicative of the fact that in cases of resistance or obstruction the District Magistrate will have to decide whether the authority should be permitted or not to exercise the powers under Section 16 of the Telegraph Act. This necessarily means that the telegraph authority cannot override or ignore the resistance or obstruction and continue to exercise the powers under Section 10 notwithstanding such resistance or obstruction. It follows that, when an owner or occupier resists or obstructs the exercise of the power under Section 10, the telegraph authority will have to approach the District Magistrate for an order under sub-section (1) of S. 16 and can exercise the power under Section 10 only in cases where the District Magistrate deems it fit to pass an order that he shall be permitted to do so. The power conferred by Section 10 is thus a conditional power; conditional on an order being passed under 9 Section 16(1) by the District Magistrate that the authority may be permitted, in case of resistance or obstruction, to exercise the power. This is so not only in regard to a telegraph authority but to the public officer or any other person authorised under the Electricity Act.
We are fortified in this view by what is provided by sub-section (2) of S. 16. If the telegraph authority has the power, notwithstanding the resistance or obstruction, to exercise the powers under Section 10, the resistance or obstruction by the owner or occupier, we conceive, would be an offence under Section 186 of the Indian Penal Code. That Section makes voluntary obstruction to any public servant in the discharge of his public functions an offence, and such an offence is punishable with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both."
In Paragraph 28, the Full Bench further held as follows:
10
"Before passing an order under Section 16(1) the District Magistrate has necessarily to issue notice to all persons interested and give them an opportunity to state their objections, if any. Without giving such an opportunity he will not have any material, at any rate, adequate material to decide whether he should pass an order that the authority shall be permitted."
We agree with the above views of the Full Bench of the Kerala High Court.
9. It has also further held that in case respondents still intend to draw the High Tension power line over the appellant's land, in view of the resistance and obstruction already offered by the appellant, respondents shall seek permission of the District Magistrate under Section 16(1) of the Indian Telegraph Act. If the respondents seek such permission, the District Magistrate shall consider the matter and pass appropriate orders after issuing notice to the appellant and considering the objections, if any. 11
10. In view of the facts and circumstances of the present case and the law declared by the Division Bench of this Court, the petitioners have made out a prima facie case for issue of writ of mandamus as prayed for.
11. For the reasons stated above, writ petitions are allowed. Respondent Nos. 1 to 3 are directed to consider the representations of the petitioners as per Annexures-C, D and E before drawing or laying power lines on the properties of the petitioners and proceed only after following the procedure as held by the Division Bench of this Court in the case of Thirthesh as stated supra and in accordance with law.
Ordered accordingly.
Sd/-
Judge Nsu/-