Gauhati High Court
WP(C)/5988/2018 on 25 February, 2022
Author: Manish Choudhury
Bench: Manish Choudhury
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GAHC010190962018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : W.P.(C) 5988 of 2018
Jagadish Barman,
S/o Late Joy Gobind Barman,
Village - Gobordhan,
P.O. - Chandrapur, P.S. - Pragjyotispur,
District - Kamrup [M], Assam - 781150.
.................. Petitioner
-Versus-
1. The State of Assam,
to be Represented by the
Secretary to the Government of Assam,
Power [Electricity] Department,
A - Block, 4th Floor,
Assam Secretariat, Dispur, Guwahati-06.
2. The Chief General Manager [HQ],
AEGCL, Bijuli Bhawan,
Paltan Bazaar, Guwahati 01.
3. The Deputy General Manager,
Lower Assam T & T Circle,
AEGCL, Narengi, Guwahati - 28.
4. The Assistant General Manager,
132 KV EHV Grid Sub - Station,
AEGCL, Kahilipara, Guwahati - 19.
5. The Deputy Commissioner,
Kamrup [M] Assam,
P.O. - Pan Bazaar, Guwahati - 1.
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6. The Circle Officer,
Chandrapur Revenue Circle,
Chandrapur, P.O. - Chandrapur,
District - Kamrup - 781150.
..................Respondents.
Advocates :
Petitioners : Mr. J.I. Barbhuiya, Advocate.
Respondent nos. 1, 5 & 6 : Mr. J. Handique, Junior Government Advocate, Assam Respondent nos. 2, 3 & 4 : T.J. Mahanta, Senior Advocate, : Ms. P. Bhattacharjee, Standing Counsel, Assam Electricity Grid Corporation Limited Date of Hearing and Judgment & Order : 25.02.2022 BEFORE HON'BLE MR. JUSTICE MANISH CHOUDHURY JUDGMENT & ORDER Heard Mr. J.I. Barbhuiya, learned counsel for the petitioner; Mr. J. Handique, learned Junior Government Advocate, Assam for the respondent nos. 1, 5 and 6; and Mr. T.J. Mahanta, learned Senior Counsel assisted by Ms. P. Bhattacharjee, learned Standing Counsel, Assam Electricity Grid Corporation Limited [AEGCL] for the respondent nos. 2, 3 and 4.
2. The petitioner has approached this Court by this writ petition filed under Article 226 of the Constitution of India seeking inter alia directions in the nature of mandamus to the respondent authorities to pay an amount of Rs. 30,07,200/- to the petitioner towards Zirat compensation in respect of 160 nos. of teak trees Page No.# 3/14 at their current value and also to pay the current market value of the plot of land which the petitioner has claimed to have belonged to him, due to installation of a 132 K.V. Power Grid line over the said land of the petitioner.
3. The case projected on behalf of the petitioner in this writ petition is, in brief, that his father, Late Joygobinda Barman came into possession of two plots of land measuring 7 Bighas together - 28768 square feet in one part and 5518 square feet in the other part - under Gobardhana Grant pursuant to a deed dated 29.10.1970 with certain terms and conditions. The name of the father of the petitioner entered into Raiyat Kacha Khatian on 28.12.1976. Since then, the plots of land were under the possession of the petitioner's father till his death in the year 1979. The plots of land were developed during the lifetime of the petitioner's father. After the death of his father, the petitioner came into possession of the plots of land and the petitioner had planted a large nos. of trees within the plots of land. On 16.10.1986, the petitioner donated 2 Bighas of land [approx.], covered by Dag no. 402, from within the said plots of land for Gobordan Primary School. The petitioner has been in possession of the remaining part of the plots of land measuring 5 Bighas 1 Katha 5 Lessas [05B- 01K-05L], covered by Dag nos. 371 & 402 [hereinafter referred as 'the subject- plot' for easy reference], by constructing his dwelling houses thereon.
4. The further case of the petitioner is that in the year 2016, a joint team consisting of personnel from respondent AEGCL and personnel from the office of the Circle Officer, Chandrapur Revenue Circle started survey over the subject- land for installation of 132 KV D/C Sonapur - Chandrapur Transmission Line under the Asian Development Bank [ADB] scheme. The petitioner has claimed Page No.# 4/14 that he had 160 nos. of teak trees on the subject-land. He accordingly submitted a representation before the respondent no. 4 for issuance of a certificate before cutting down those 160 nos. of teak trees planted on the subject-land under his possession. On 26.12.2017, the respondent no. 4 issued a certificate certifying that zirat compensation would be paid for all kind of surface damage that might occur during stringing of 132 KV Sonapur- Chandrapur Transmission Line constructed as the Right of Way [RoW] permission in that regard had been granted by the District Magistrate, Kamrup [Metro]. It was further certified that the rates for the trees would be given as per the rates of the Agriculture Department, Govt. of Assam and for the houses as per the Public Works Department, Assam [APWD] schedule rates of 2013- 2014.
5. It was on 05.07.2018, the respondent authorities in the AEGCL paid an amount of Rs. 3,84,000/- toward zirat compensation to the petitioner. The petitioner has contended that he refused to accept the said amount but the respondent authorities had compelled him to accept the said amount. Aggrieved by the amount of compensation, which according to the petitioner is inadequate, he stated to have submitted a representation before the respondent no. 6 i.e. the Circle Officer, Chandrapur Revenue Circle on 30.05.2018 seeking assessment of the market values for 160 nos. of teak trees and compensation for damages caused to the subject-plot. The respondent no. 6 had, in turn, wrote to the respondent no. 02.07.2018 apprising the matter of issuance of a certificate in respect of felling / operation / cutting of 160 nos. of teak trees. The petitioner had thereafter, submitted a representation on 19.07.2018 before the respondent authorities seeking compensation for the land acquired for Page No.# 5/14 stringing the transmission line as well as the market values of 160 nos. of teak trees which he has claimed to have been cut by the respondent authorities in stringing the transmission line over the subject-plot. When no response was given to the said representation, the petitioner has approached by this writ petitioner seeking the reliefs, as mentioned above.
6. According to the petitioner, a compensation amount of Rs. 70,00,000/- for the subject-plot ought to have been given as per the provisions of the Land Acquisition Act, 1894 and the compensation for the 160 nos. of teak trees ought to have been given as per the market rates, which he has claimed to be Rs. 30,70,200/-.
7. The respondent authorities in the AEGCL have submitted an affidavit-in- opposition traversing the contentions of the petitioners in the writ petition.
8. Mr. T.J. Mahanta, learned Senior Counsel for the respondent AEGCL authorities has submitted that the respondent AEGCL authorities had exercised the Right of Way for the purpose of stringing 132 KV D/C Sonapur - Chandrapur Transmission Line. The transmission line has been installed over the subject-plot and also a number of other plots of land and for that purpose, the respondent authorities had exercised the Right of Way under the provisions of the Indian Telegraph Act, 1885 read with the Electricity Act, 2003. As such, the provisions of the Land Acquisition Act, 1894 are not applicable. The respondent authorities have duly assessed the compensation after a joint survey conducted by the District Administration and the officials of the respondent authorities in the AEGCL in presence of the petitioner. After the joint survey, a sum of Rs.
Page No.# 6/14 3,84,000/- has been assessed to be payable to the petitioners towards Zirat compensation under the provisions of Section 10[d] of the Indian Telegraph Act, 1885 r/w the Electricity Act, 2003. He has submitted that on enquiry, the respondent authorities had found the petitioner to be an encroacher of the subject-land and the petitioner cannot be termed as the landowner of the subject-plot.
9. Mr. Mahanta has further submitted that the petitioner is only aggrieved by the amount of compensation so assessed and for redressal of such grievance, the petitioner has an alternative remedy under the provisions of Section 16 of the Indian Telegraph Act, 1885.
10. In response to the above submissions of Mr. Mahanta, Mr. Borbhuiya has submitted that the averments made in the affidavit-in-reply would amply justify that the petitioner is entitled to a much higher amount than that had been assessed by the respondent authorities in the case in hand and the petitioner is in position to lead evidence to substantiate such claims. Mr. Borbhuiya has submitted that the petitioner is pursuing the writ petition with diligence for a number of years. If the petitioner is now made to prefer an application under Section 16 [3] of the Indian Telegraph Act, 1885 the question of limitation might come in.
11. I have duly considered the submissions of the learned counsel for the parties and perused the materials brought on record by the parties.
12. Before dwelling on the issues raised by the petitioners herein it is Page No.# 7/14 apposite to refer to the provisions of Section 10 and Section 16 of the Indian Telegraph Act, 1885, which read 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.
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 Page No.# 8/14 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, 1860 [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."
13. The averments made in the affidavit-in-opposition of the respondent authorities in the AEGCL go to indicate that stringing of 132 KV D/C Sonapur -
Page No.# 9/14 Chandrapur Transmission Line was done partly over the lands of several landowners after obtaining the Right of Way from the appropriate Government. With regard to the subject-plot belonging to the petitioner is concerned, it has been averred that no tower has been installed in the subject-plot but the transmission line has gone over the subject-plot. A joint survey was conducted by the revenue officials in the district in presence of the representatives of the AEGCL and the subject-plot was found out to be Government land. After such survey, the amount assessed towards Zirat Compensation, found entitled by the petitioner, for the damages caused to the subject-plot in stringing the transmission line had been paid to the petitioner. But the petitioner after receiving the said amount, has preferred this writ petition seeking the afore- mentioned amounts without any basis.
14. It is by virtue of the provisions contained in Section 68, Section 69 and Section 164 of the Electricity Act, 2003, the appropriate Government can confer upon a licensee engaged in the business of supplying electricity under the Electricity Act, 2003, subject to such conditions and restrictions, any of the powers possessed by the telegraph authority under the Indian Telegraph Act, 1885 with respect to placing of telegraph lines and posts, for the purpose of placing of electric lines for transmission of electricity. Sub-Section [3] of Section 16 of the Indian Telegraph Act, 1885 has provided in specific terms that if any dispute arises concerning the sufficiency of the compensation to be paid under Section 10, clause [d], the aggrieved party is required to file an application in that respect before the District Judge within whose jurisdiction the property is situated and in the event of preferring such an application, the jurisdictional District Judge can determine the sufficiency or otherwise of the compensation Page No.# 10/14 already assessed and in an appropriate case, can also enhance the amount of compensation.
15. In a case where there is a specific remedy provided under the concerned statute to agitate the issue raised in a writ petition under Article 226 of the Constitution of India whether a writ petition under Article 226 should be entertained or not, a Constitution Bench of the Hon'ble Supreme Court of India in Thansingh Nathmal vs. the Superintendent of Taxes, Dhubri and others , reported in AIR 1964 SC 1419, has observed in the following manner :-
"7.........The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy which, without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be by-passed, and will leave the party applying to it to seek resort to the machinery so set up."
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16. In view of the availability of statutory remedy under sub-section [3] of Section 16 of the Indian Telegraph Act, 1885 to the petitioner, the petitioner, if he is aggrieved by the amount of compensation assessed at Rs. 3,84,000/- by the respondent authorities, he should approach the jurisdictional District Judge seeking adequate compensation for the damages caused to the subject-plot for stringing of the 132 KV D/C Sonapur - Chandrapur Transmission Line. To establish the claim that the petitioner is entitled to receive an amount of Rs. Rs. 30,70,200/- as compensation for 160 nos. of teak trees as per the market rates and any other amount as damages against any other head[s], the petitioner to establish and the respondents to dispute have to lead evidence - oral as well as documentary - for determination of facts which is not possible in a writ petition. In view of the above, this Court is not inclined to entertain this writ petition since option is available to the petitioner to avail the statutory remedy provided under sub-section [3] of Section 16 of the Indian Telegraph Act, 1885.
17. Though the petitioner did not approach the jurisdictional District Judge at the first point of time, he has approached this Court instead invoking the extra- ordinary and discretionary writ jurisdiction under Article 226 of the Constitution of India, by filing the writ petition on 28.08.2018.
18. It has been held by the Hon'ble Supreme Court of India in the Kerala State Electricity Board, Trivandrum vs. T.P. Kunhaliumma , reported in [1976] 4 SCC 634, that in dealing with applications under Section 16 of the Indian Telegraph Act, 1885 for compensation the District Judge acts as a civil court and Article 137 of the Limitation Act, 1963 will be applicable for the purpose of limitation.
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19. It may also be apposite to refer to the provision contained in sub-section [1] of Section 14 of the Limitation Act, 1963 which provides for exclusion of time of proceeding bona fide in a Court without jurisdiction. For ready reference, the said provision is quoted hereunder :
"14. Exclusion of time of proceeding bona fide in court without jurisdiction.
[1] In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it."
20. The petitioner instead of resorting to the statutory remedy, has assailed the actions of the respondents before this Court in its writ jurisdiction. This Court has already observed that the writ petition is not going to be entertained in view of availability of the statutory remedy under Section 16 [3] of the Indian Telegraph Act, 1885 for seeking enhancement of the compensation amount. The true purport of the words, 'other cause of like nature', appearing in Section 14 of the Limitation Act, came to be considered by the Hon'ble Supreme Court of India in Union of India v. West Coast Paper Mills Ltd., reported in [2004] 3 SCC
458. It has been held therein to the effect that Section 14 of the Limitation Act is wide in its application, inasmuch as it is not confined in its applicability only to cases of defect of jurisdiction but it is applicable also to cases where the prior proceedings have failed on account of other causes of like nature. In Roshanlal Kuthalia v. R.B. Mohan Singh Oberoi , reported in [1975] 4 SCC 628, it has been Page No.# 13/14 held by the Hon'ble Supreme Court of India while considering the words, 'other cause of like nature', to the effect that Section 14 of the Limitation Act is wide enough to cover such cases where defects are not merely jurisdictional strictly so called but others more or less neighbours to such deficiencies. Any circumstance, legal or factual, which inhibits entertainment or consideration by the Court of the dispute on merits comes within the scope of Section 14 and a liberal approach is to be adopted in interpreting the provision of Section 14 of the Limitation Act so as not to deprive the person aggrieved to avail the remedy if he has a right. In a three-judge Bench decision in Rameshwarlal vs. Municipal Council, Tonk, reported in [1996] 6 SCC 100, the Hon'ble Supreme Court while considering the import and purport of the words, 'other cause of a like nature', appearing in Section 14 of the Limitation Act, has held that if the High Court has declined to grant relief relegating the petitioner to a suit in the civil court, the petitioner cannot be left remediless. Accordingly, the time taken in prosecuting before the High Court, if pursued diligently and bona fide, needs to be excluded. In Shakti Tubes Limited vs. State of Bihar and others , reported in [2009] 1 SCC 786, it has been observed by the Hon'ble Supreme Court of India that the provision of Section 14 of the Limitation Act should be construed liberally.
21. In view of the discussions made above and for the reasons assigned therein, this writ petition is therefore, not entertained, reserving the liberty to the petitioner to seek the statutory remedy under Section 16 [3] of the Indian Telegraph Act, 1885. In the event the petitioner prefers any such application before the jurisdictional Court under the provisions of the Indian Telegraph Act, 1885, it is observed that the jurisdictional Court shall consider the issue of limitation liberally in the light of the observations made hereinabove with regard Page No.# 14/14 to the provisions contained in Section 14 of the Limitation Act, if any delay is occasioned in availing the statutory remedy and thereafter, shall proceed to consider the application on merits and in accordance with law. There shall, however, be no order as to cost.
JUDGE Comparing Assistant