Gujarat High Court
Aejuben Rasingbhai Chauhan vs State Of Gujarat, Chief Electrical ... on 4 October, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/10610/2023 ORDER DATED: 04/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10610 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 10610 of 2023
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AEJUBEN RASINGBHAI CHAUHAN
Versus
STATE OF GUJARAT, CHIEF ELECTRICAL INSPECTOR
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Appearance:
MR AJ YAGNIK(1372) for the Petitioner(s) No. 1,2,3,4,5,6,7
MS. JYOTI BHATT, AGP for the Respondent(s) No. 1,2,4,
MR SP HASURKAR(345) for the Respondent(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 04/10/2023
ORAL ORDER
1. By way of the present petition, the petitioners herein have prayed for the following reliefs:
"(A) YOUR LORDSHIPS may be pleased issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, orders or direction quashing and setting aside the impugned order dated; 01.06.2023 passed by the respondent no.2- Deputy Collector & Sub Divisional Magistrate, Veraval in GETCO case. 01 of 2023 (At annexure; K);
(B) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay further operation, implementation and execution of order dated;Page 1 of 8 Downloaded on : Wed Oct 11 20:31:45 IST 2023
NEUTRAL CITATION C/SCA/10610/2023 ORDER DATED: 04/10/2023 undefined 01.06.2023 passed by the respondent no.2- Deputy Collector & Sub Divisional Magistrate, Veraval in GETCO case. 01 of 2023 (At annexure; K) and further be pleased to direct the concerned respondents herein shall not take any coercive action against the petitioners;
(C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case;."
2. Heard Mr. Vedant Rajguru, learned advocate for Mr. A.J. Yagnik, learned advocate appearing for the petitioners, Ms. Jyoti Bhatt, learned Assistant Government Pleader appearing for the respondent Nos.1, 2, 4 - State and Mr. S.P. Hasurkar, learned advocate appearing for the respondent No.3.
3. The petitioners herein are aggrieved by the impugned order passed by passed by the respondent no.2- Sub Divisional Magistrate, Veraval dated 01.06.2023 in GETCO Case No. 01 of 2023, duly produced at Annexure-K.
4. Being aggrieved by the impugned order dated 01.06.2023, the petitioners herein have approached this Court mainly on the ground that the exercise of powers by the Deputy Collector & Sub Divisional Magistrate, Veraval are beyond the jurisdiction. Reliance was placed by Mr. Rajguru, learned Page 2 of 8 Downloaded on : Wed Oct 11 20:31:45 IST 2023 NEUTRAL CITATION C/SCA/10610/2023 ORDER DATED: 04/10/2023 undefined advocate appearing for the petitioners on Section-16(1) of the Telegraph Act, 1885 and placing reliance on the same, it was submitted that the powers are conferred upon the District Magistrate to decide the application preferred under Section 10 of the Telegraph Act, 1885. It was submitted that, considering the fact that the order impugned is passed by the Sub Divisional Magistrate, Veraval, the same is without jurisdiction, the order impugned may kindly be quashed and set aside on the aforesaid ground alone.
5. Mr. S.P. Hasurkar, learned advocate appearing for the respondent No.3 and Ms. Jyoti Bhatt, learned Assistant Government Pleader appearing for the respondent Nos.1, 2, 4 - State were not in a position to controvert the aforesaid position of law and submission made by Mr. Rajguru, learned advocate appearing for the petitioners.
6. At this stage, it is apposite to refer to Section 16 of the Telegraph Act, 1885, which reads thus:
"16. Exercise of powers conferred by section 10, and disputes as to compensation, in case of property other than that of a local authority.--Page 3 of 8 Downloaded on : Wed Oct 11 20:31:45 IST 2023
NEUTRAL CITATION C/SCA/10610/2023 ORDER DATED: 04/10/2023 undefined (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 their 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, o r as to the proportions in which the persons interested arc 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."
POSITION OF LAW:
7.1. Considering the provision of Section 16(1) of the Page 4 of 8 Downloaded on : Wed Oct 11 20:31:45 IST 2023 NEUTRAL CITATION C/SCA/10610/2023 ORDER DATED: 04/10/2023 undefined Telegraph Act, 1885, it is apposite to refer to the ratio as laid down by this Court in Letters Patent Appeal No. 1322 of 2024 in Special Civil Application No. 11465 of 2014 vide order dated 09.12.2014, relevant Para-2 and 3 reads thus:
"2. Pursuant to the above referred order, today, Mr. M.S. Patel, District Magistrate/District Collector, Kutch-Bhuj is present. After the matter is considered by him, he declares before the Court that the impugned order dated 9.1.2014 at annexure A shall stand withdrawn by him since the hearing was not given by the District Magistrate himself at the relevant point of time but was given by the Sub Divisional Magistrate under the delegated power of the District Magistrate. He has declared before the Court that he shall give hearing to the affected party/ies and he himself will decide the matter. It has also been stated that at the time when the power is exercised under section 16 for permitting entry over the land of the owner, aspects of compensation, whether paid or not, shall also be considered.
3. In view of the above, as the impugned order is withdrawn, the cause for the petitioner would not survive and the petition itself would become infructuous. Consequently, present Letters Patent appeal shall also become infructuous but with the direction that the District Magistrate/District Collector shall abide by the declaration made before this Court and shall give hearing to the affected parties and shall decide the matter himself keeping in view the declaration made and in accordance with law. It is observed that until fresh order is passed by the District Magistrate, status quo as operated today qua land in question and the construction already made shall be maintained by both the parties. Hence, Letters Patent Appeal as well as the Special Civil Application shall stand disposed of. Consequently, Civil Application No.12999 of 2014 shall also stand disposed of."
7.2. At this stage, it is apposite to refer to the ratio as laid down by this Court in the case of Gujarat State Energy Page 5 of 8 Downloaded on : Wed Oct 11 20:31:45 IST 2023 NEUTRAL CITATION C/SCA/10610/2023 ORDER DATED: 04/10/2023 undefined Transmission Corporation Limited v/s. Ratilal Maganji Brahmbhatt (Barot) reported in 2020 (4) GLR 2642, relevant para- 58.25 reads thus:
"58.25. Section 10 of the Indian Telegraph Act gives legal sanction to the licencing authority to enter into any property, to lay poles or posts or draw electric lines. But while doing so, the damage of the property should be less. If there is any resistance, the licencee or the authorized person may approach the District Magistrate-cum-District Collector, to grant permission."
7.3. At this stage, it is apposite to refer to the order dated 03.08.2015 passed in Special Civil Application No. 8955 of 2015, relevant paras read thus:
"..3. The petitioner-Gujarat Energy Transmission Corporation Limited, through its Executive Engineer filed this petition under article 226 of the Constitution and prayed to set aside the order dated 16th March, 2015 passed by Sub-Divisional Magistrate in Electricity Case No. 24 of 2014. Further prayer was to quash and set aside the order dated 16th May, 2015 passed by Collector, Jamnagar, passed in review application of the petitioner made before the said authority.
4. It appears that since the petitioner-corporation had been laying and installing 220KV D/C LILO from existing 220KV Jetpur-Jamnagar DC line at Sikka Power Station (60 KM), is a 220 KV Transmission line of 60 Kms., starting from village Matwa of District Jamnagar and itends at Thermal Power Station, Sikka, and installing the towers and machineries therefor, made an application under Section 16 of the Telegraph Act, 1885, before the Sub-Divisional Magistrate seeking orders of removal of obstructions in laying the lines. It resulted into the aforesaid order dated 16th March, 2015 and the order rejecting the review application dated 16th May, 2015.
5. Having considered the facts and having heard both the Page 6 of 8 Downloaded on : Wed Oct 11 20:31:45 IST 2023 NEUTRAL CITATION C/SCA/10610/2023 ORDER DATED: 04/10/2023 undefined learned advocates, it was seen that under Section 16(1) of the Telegraph Act, 1885, the proceedings would be competent before the District Magistrate. The Sub-Divisional Magistrate who entertained and decided the application of the petitioner in purported exercise of powers under Section 16, was not a competent forum. The impugned orders, therefore, are liable to be set aside on this ground alone. Accordingly, the order dated 16th March, 2015 passed by the SubDivisional Magistrate and order dated 16th May, 2015 in review application passed by Collector, Jamnagar, are hereby set aside.
6. The petitioner is at liberty to file a fresh petition in relation to the same subject matter before the competent authority, that is, District Magistrate concerned.
7. It is observed that the application which may be filed before the District Magistrate by the petitioner shall be dealt with and decided expeditiously and preferably within four weeks from the date of receipt of this order. Till such application is decided by the District Magistrate, the parties shall maintain status quo.
8. This Court has not gone into the merits of the case of the either side and the District Magistrate decide the case in accordance with law and on its own merits."
8. Considering the facts of the present case and the ratio as laid down by the Hon'ble Court as referred above, the order impugned dated 01.06.2023 is passed by the Sub Divisional Magistrate, Veraval, the impugned order dated 01.06.2023 is quashed and set aside on the aforesaid ground alone, the same being without jurisdiction.
9. The application preferred by the respondent no.3 herein under Section 16(1) of the Telegraph Act, 1885 being Page 7 of 8 Downloaded on : Wed Oct 11 20:31:45 IST 2023 NEUTRAL CITATION C/SCA/10610/2023 ORDER DATED: 04/10/2023 undefined JETCO Case No. 1 of 2023 is directed to be heard afresh, by the District Magistrate, after granting opportunity of hearing to the respective parties, within a period of four weeks from the receipt of the order, in accordance with law. Needless to say that respective parties to cooperate in the proceedings before the District Magistrate.
10. This Court has otherwise not opined on the merits of the matter.
11. Direct service is permitted.
12. Since the main petition stands disposed of, the Civil Application also stands disposed of.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 8 of 8 Downloaded on : Wed Oct 11 20:31:45 IST 2023