Calcutta High Court (Appellete Side)
Sabbir Khan vs The Project Manager on 24 February, 2023
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present :
THE HON'BLE JUSTICE PARTHA SARATHI SEN
C.O. No.1508 of 2022
Sabbir Khan
Vs
The Project Manager,
West Bengal State Electricity
Distribution Company Limited & Anr.
For the Petitioner : Mr. Krishna Das Podder, Adv.
: Mr. Pradip Paul, Adv.
For the O.Ps. : Mr. Sujit Sankar Koley, Adv.
Last Heard on: : 20.02.2023
Judgment on: : 24.02.2023
Partha Sarathi Sen, J. : -
1.
The instant revisional application as filed under Article 227 of the
Constitution of India arises out of the Judgement and Order dated April 13,
2022 as passed by Learned Additional District Judge, Fast Track, Third Court,
Sadar, Paschim Medinipur in Misc. Appeal No. 35 of 2014 whereby and
whereunder the said Court by the impugned Judgement allowed the said Misc.
Appeal No. 35 of 2014 thereby setting aside the order No. 23 dated January 31,
2012 as passed by Learned Civil Judge (Junior Division), Danton, Paschim
Medinipur as passed in Title Suit No. 53 of 2012 and thus rejected the petition
as filed Procedure by the plaintiff under Order 39 Rules 1& 2 of the Code of
Civil on contest.
2. The plaintiff felt aggrieved and thus preferred the instant revisional
application.
3. For effective disposal of the instant revisional application, the brief facts
leading to passing of the impugned judgement is required to be discussed in a
nutshell. It is the plaint case that the plaintiff is the rayat of the suit property
over which he intends to construct his house by converting the suit property to
a bastu land. It is the further case of the plaintiff that on 19.03.2012 the
defendants and their men and agents came over the suit property and erected
an electric poll over the suit property without the consent of the plaintiff with
an intention to take High Tension Line over the suit property. It is further case
of the plaintiff that in the event the defendants are successful in taking high
tension line over the suit property, he would not be in a position to construct
his house over the suit property and thus finding no other alternative, the
plaintiff has filed the said suit against the defendants for permanent injunction
and for other ancillary reliefs.
4. Based on the self-same facts, the plaintiff before the Trial Court filed an
application for temporary injunction. The defendants of the said suit filed their
written objection as against the said injunction application. Learned trial court
after hearing both the sides was pleased to allow the said injunction
application as filed by the plaintiff on contest by its order No. 23 dated January
31, 2012 .
5. Feeling aggrieved with the said order dated January 31, 2012, the
defendants of the said suit preferred an appeal before the first appellate Court
which was allowed by the impugned judgement.
6. Mr. Podder, Learned Advocate for the plaintiff/revisionist in course of his
submission draws attention of this Court to the impugned judgement. It is
submitted by him that Learned First Appellate while passing the impugned
judgement misconstrued the provisions of Section-164 of the Electricity Act,
2003 herein after referred to as the said Act of 2003 visa-vis Section-10 of the
Indian Telegraph Act, 1885 herein after referred to as the 'said Act of 1885'. It
is submitted by the learned Advocate for the plaintiff/revisionist that learned
First Appellate Court mis-interpreted the word 'transmission' as available in
section 164 of the said Act of 2003 and thus wrongly hold that Rule 3 of Works
of Licensing Rules 2006 is not applicable in the present lis. It is further
submitted by the learned Advocate for the plaintiff / revisionist that since the
defendants /opposite parties being the licensee are engaged in the distribution
of electricity and not transmission of the same, Learned First Appellate Court
ought to have hold the defendants must have to obtain necessary permission
from District Magistrate for carrying out the work of electric supply line over
the suit property in view of the provision of Rule 3 of Works of Licensing Rules
2006. It is submitted that is a fit case for allowing the instant revisional
application by setting aside the impugned judgement as passed by the learned
first appellate Court.
7. Per contra, Mr. Koley, Learned Advocate for the defendants/ opposite
parties also placed his reliance upon section 164 of the said Act of the said
Act, 2003 and section 10 of the said Act of 1885. Attention of this Court is also
drawn to a notification No.285-Power/III/3R-04/2005 dated August 16, 2005
as issued by Department of Power and Non-Conventional Energy Sources,
Government of West Bengal. It is submitted on behalf of the
defendants/opposite parties that by virtue of the aforesaid provisions of law
and the aforementioned notification, the defendants/opposite parties being the
licensee has been authorized to place electrical lines over the suit property and
in doing so, if any damage is caused to the plaintiff/revisionist, he is at best
entitled to get compensation in view of Section 10(d) of the said Act of 1885. It
is thus submitted on behalf of the defendants/opposite parties that the first
appellate Court visualized the correct propositions of law and thus rightly
passed the impugned judgement thereby vacating the order of injunction as
passed by the trial court.
8. This Court has meticulously perused the entire materials as placed
before this court. This court has given its due consideration over the
submissions of the Learned advocates for the contending parties.
9. For effective adjudication of the instant revisional application a look to
the provision of Section 164 of the Act of 2003 and Section 10 of the said Act of
1885 are required to be looked into.
Section 164 of the Electricity Act, 2003 reads as under :-
"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".
Section 10 of the Indian Telegraph Act, 1885 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."
10. On perusal of Section164 of the Act of 2003, it appears to this Court that
the word 'transmission of electricity' is to be viewed liberally and not in a
narrow compass. In considered view of this court the term 'transmission' must
include 'distribution' also since the opposite parties being the licensees are
duty bound to transmit electricity for distribution of the same to its consumers.
In view of such, under no stretch of imagination it can be said that the
defendants/opposite parties are not bestowed with the power under Section
164 of the Act of 2003 read with Part-III of the Act of 1885. It reveals further for
the aforesaid reason in order to facilitate smooth transmission and distribution
of electricity, Government of West Bengal has issued the notification dated
16.08.2005 authorizing the defendant/opposite party no.4 to exercise the
power under Section164 of the Act of 2003.
11. Such being the position this Court got no hesitation to hold that the
defendant/opposite party no.4 has every authority to place electrical lines in
exercise of the power as given to them under Section 164 of the said Act of
2003 read with Section 10 of the Act of 1885 and in doing so it need not
require any permission from any authority as claimed by the present
revisionist.
12. In view of such, this Court further holds that the provisions of Works of
Licensees Rules, 2006 has got no application in the instant lis and accordingly
the instant revisional application fails. Consequently the impugned judgement
dated April 13, 2022 as passed by the learned Additional District Judge, Fast
Track 3rd Court, Sadar, Paschim Medinipur in Misc. Appeal No.35 of 2014 is
hereby affirmed.
13. Department is hereby directed to send copies of this judgement both to
the learned Appellate Court as well as to the Trial Judge for their information
and record.
14. Urgent Photostat Certified copy of this judgment, if applied for, be
supplied to the parties expeditiously after complying with all necessary legal
formalities.
(Partha Sarathi Sen, J.)
