Karnataka High Court
Mr Sandeep vs M/S Karnataka Power Transmission ... on 22 May, 2012
Author: B.S.Patil
Bench: B.S.Patil
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22 ND DAY OF MAY 2012
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No. 15430/2012 (GM-KEB)
BETWEEN:
Mr. Sandeep,
Aged 40 years,
W/o late S.C.Aswath Reddy,
R/at No.29/4. Gurukrupa.
5th Cross. Wilson Garden,
Bangalore-27. ... PETITIONER
(By Sri S.Victor Manoharan, Adv.)
AND:
1. M/s.Karnataka Power Transmission
Corporation Ltd., (KPTCL),
Bangalore (Major Works-South Division),
Anand Rao Circle, Bangalore-09,
Rep.by Executive Engineer (Elec.)
2. The Deputy Commissioner and
District Magistrate,
Bangalore District,
Bangalore-O 1. ... RESPONDENTS
(By Sri N.Krishnanda Gupta, Adv. for C/Ri
Sri N.Venkatesh Dodderi, Adv. for R2)
This writ petition is filed under Articles 226 & 227 of the
Constitution of India, praying to quash the order dated
21.4.2012 passed by the respondent No.2 vide Annexure-A and
etc.
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This petition coming on for preliminary hearing this day,
the Court made the following:
ORDER
1. In this writ petition. petitioner is challenging the order dated 21.04.2012 passed by the Deputy Commissioner and District Magistrate, Bangalore District, Bangalore vide Annexure-A, By the said order, in exercise of the powers under Sections 16(1) and (2) of the Indian Telegraph Act. 1885 (for short 'the Act') a direction is issued for removal of the obstruction caused by the petitioner to the respondent M/s.Karnataka Power Transmission Corporation Ltd., (for short 'KPTCL') in joining the 220 KV underground cable line between towers 10 and 1 1 and thereby permitting the 1 respondent to proceed with the scheme to charge the cable line keeping in mind the interest of the general public. Though the petitioner had resisted the laying of such a cable line, after considering the purpose and object for which the scheme was undertaken and the nature of the objections raised by the petitioner, the Deputy Commissioner who is vested with the powers to order for removal of the obstruction caused has passed the impugned order.
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2. The case of the petitioner before the Deputy Commissioner is that the action initiated by the 1 respondent was illegal, as he had put up construction of a house in the property and intended to lease some portion of the land comprised in the property to an educational institution. If the 1st respondent was permitted to lay the cable and install an inspection chanther in the land in question, it would result in danger to the human life and cause great loss to the petitioner. This objection raised is held untenable by the Deputy Commissioner. The Deputy Commissioner, after considering the entire materials on record has come to the conclusion that the authorities of the KPTCL having considered the technical aspects including the loss that was likely to be caused to the petitioner in putting up the inspection chamber as well as in laying the lines on the land belonging to the petitioner had undertaken such an exercise and that the petitioner was entitled to be paid compensation towards the damages if any sustained by him in the process. The Deputy Commissioner has also found that the KPTCL was taking up the said work in the interest of public and that it had already invested huge money on the project and therefore it was not in the public interest to sustain the objection raised by the petitioner. The apprehension 4 of the petitioner regarding danger to human life has been repelled holding that the same did not stand to reason. The Deputy Commissioner has further observed that the Authorities of the KPTCL have to take all precautionary measures to avoid any loss to the petitioner and that necessary compensation will have to be paid to the petitioner towards the damages if any sustained by the petitioner.
3. Learned counsel for the petitioner contends that though an application had been filed under Section 17 of the Act seeking a direction to the 1 respondent-KPTCL for removal/alteration of the inspection chamber and the underground cable sought to be laid, without considering the said application, the Deputy Commissioner has passed the impugned order. In this regard learned counsel for the petitioner takes me through Section 17 of the Act and also places reliance on a judgment of the Patna High Court in the case of SMT. DURGESH NANDANI vs. STATE OF BIHAR AND OTHERS AIR 2000 PATNA 135.
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4. Learned counsel appearing for the respondent-KPTCL submits, taking me through the statement of objections filed that the underground cable has been laid for a route length of 5 1.35 KM and that in the schedule property where tower No. 10 is located the same has been installed. He strongly contends that in order to carry out joining of cables. AC container has been placed between the towers at locations 10 and 1 1 in the land of the petitioner and the KPTCL had already carried out all the initial process and cables were about to be joined by the mechanical process and at that stage the petitioner herein raised objections which necessitated the KPTCL to approach the Deputy Commissioner for removal of obstruction as provided under Section 16 of the Act. He further contends that the inspection chamber constructed will be in place temporarily and the cable that is running through out the length of around 1.35 KM is at a depth of 1.8 Mtrs. which will be about 5.9Oft. and the same will not in any manner endanger human life. 5, Upon hearing the learned counsel for both parties and on careful perusal of the materials on record. I find that the Deputy Commissioner has exercised the powers vested in him under Sections 16(1) and (2) of the Act. While passing the impugned order he has taken note of the objection raised by the petitioner and has recorded a finding that there was no danger to the human life in the exercise undertaken by the respondent 6 KPTCL for laying the underground cable and in putting up the inspection chamber, The Deputy Commissioner has taken care to observe that the petitioner would be entitled to seek compensation in case there is any damage sustained by the petitioner in the land in question.
6. It is necessary to notice here that question of making an application under Section 17 would arise only after the erection of the tower or laying of the cable is done. The said application is required to be made to the Authority concerned namely to the KPTCL. Even before the line was laid and the scheme was made operational and when the matter was pending before the Deputy Commissioner for removal of the obstruction caused by the petitioner, the petitioner has chosen to make an application under Section 17 of the Act before the District Magistrate for removal of the cable which was partially laid by the KPTCL. The grievance of the petitioner is that without considering the said application the Deputy Commissioner could not have passed by the impugned order directing removal of obstruction. This contention is untenable, inasmuch as the application filed under Section 17 was itself not maintainable before the District Magistrate. The application, if at all, can be made only before 7 the Telegraph authority which in the instant case is the the KPTCL and if the said authority does not consider the application seeking removal of the line, then it would be open to the petitioner to approach the District Magistrate. The application under Section 17 can be maintained only after a telegraph line or post has been placed by the telegraph authority in terms of the provisions contained in Para 3 of the Act. In the instant case, even before the line was laid, the petitioner had objected and in that background, the KPTCL had approached the Deputy Commissioner for removal of the obstruction. During the course of enquiry under Section 16 of the Act, the petitioner could not have made such an application under Section 17 of the Act before the District Magistrate. Therefore, the contention urged by the petitioner that the Deputy Commissioner ought to have considered the application under Section 17 of the Act filed by the petitioner is untenable.
7. As already held by me, the Deputy Commissioner has not committed any apparent illegality in passing the impugned order directing removal of obstruction and granting permission to the KPTCL to lay the line. If at all the petitioner is entitled to seek removal of the line as per Section 17, he has to make 8 necessary application before the Authority (KPTCL) In terms of SectIon 17 and thereafter the Authority has to take necessary action.
8. The decision of the Patna High Court on which reliance Is placed by the learned counsel for the petitioner has no application to the facts of the present case as the question that fell for consideration In the said case was that In cases where the board fixes and Installs electricity lines/poles or other appliances on a private piece of land or carries an overhead line through a private land without the approval and consent of the land owner In exercise of the powers conferred In Pan 3 of the Act, for the purpose of removal or alternation of the line In case of a request made for alternation or removal of the line whether provisions of Section 17 of the Act was applicable or Rule 82 of the Indian Electricity Rules had application. Answering the said question, the Patna High Court has held that it was Section 17 of the Act which had application and not Rule 82 of the IndIan Electricity Rules and that if the poles had been fixed on the land In question without the approval and consent of its owners, it was not necessary for the owner of the land to bear iv 9 the expenses for removal of the poles. Therefore, the contention of the petitioner cannot be accepted.
9. Hence, this writ petition is dismissed. It is made clear that if at all the. petitioner is entitled in law to have recourse to Section 17 of the Act, it will be open to him to approach the KPTCL by making out appropriate case in this regard as per law. In which event, the KPTCL will take action in accordance with law.
Sd/ ]UDG VP