The Station M Anager vs Gayaprasad Ghorai & Ors
2023 Latest Caselaw 6179 Cal

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                       IN THE HIGH COURT AT CALCUTTA

                       CIVIL APPELLATE JURISDICTION

                                      APPELLATE SIDE



     Present:

     THE HON'BLE JUSTICE HARISH TANDON
                 &
     THE HON'BLE JUSTICE PRASENJIT BISW AS


                                       SAT 73 of 2018
                                       CAN 2 of 2018

                The Station M anager, Belda Customer Care Centre & Anr.
                                       Vs.
                           Gayaprasad Ghorai & Ors.

  Appearance:

  For the Petitioner              :      M s. M itali Bhattacharya, Adv.




  Judgment On                 :         14.09.2023




  Harish Tandon, J.:
        The instant Second Appeal is filed by the defendant-appellant

assailing the findings made by the Trial Court as well as the appellate Court

on    this score that both the          Court below have     misconstrued   and

misinterpreted the various provisions of the Indian Electricity Act and the

Telegraph Act wherein the power is conferred upon the authority to fix a poll

and the transformer while undertaking an electrification of the locality on
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the consent of the owners/occupiers of the said property. It is an

undisputed fact that the electrification programme was undertaken at

Mouza Sangonua under the supervision of Assistant Engineer, Belda, Rural

Electrification Camp Office, West Bengal State Electricity Development

Corporation Ltd. Admittedly the electrification is completed and it is not in

dispute that several polls as well as the transformers are affixed on the LR

Plot no. 299.


      The plaintiff-respondent filed a suit claiming an ownership in respect

of 51 decimal Bastu land comprised in LR Plot no. 70 at Mouza Sangonua

which they acquired by way of inheritance and their names are also

recorded in the Record of Rights. Apart from the same there is a 24 decimal

of agricultural land comprised in Plot no. 229 which is also acquired by the

plaintiffs through their predecessor who purchased the same on the basis of

the sale-deed dated 19.06.1978. It is averred that at Plot no. 229 the

plaintiffs-respondent have constructed a Smriti Mandir where the

defendant-appellants have illegally installed several electric posts and the

transformer covering the said mandir without taking any permission or

consent from them. It is further averred in the plaint on 12.08.2008 when

the defendant/appellants undertook to construct poles and the transformer,

the resistance was offered but they did not pay any heed to it and continued

to make such construction thereat. On the basis of the aforesaid facts

several reliefs were claimed in relation to the right, title and interest over the

aforesaid plot of land, permanent injunction restraining the defendant-

respondant from creating any obstruction in peaceful enjoyment and

possession of the suit property and also the mandatory injunction to remove

such electric polls and transformer installed thereat.

The defendant-appellant took a defence that while undertaking

a rural electrification programme the said mouza was to be electrified under

the supervision of the defendant-appellants and since no complaint nor any

resistance was offered, the polls and the transformers were installed at the

said plot of land which is within the power of the authority. It is further

sought to be contended that Section 51 of the Indian Electricity Act, 1910

which is retained in Section 164 of the Electricity Act, 2003 empowers the

defendant-appellant to exercise any of the powers which the Telegraph

Authority possesses in respect of placing of the lines and the posts and

therefore in exercise of such power the polls and the transformer was affixed

as the plaintiff-respondent never raised any objection and in fact, gave

consent for the same.

The Trial Court decreed the suit not only declaring the right,

title, interest and possession of the plaintiffs-respondent but also

permanently restrained the defendant-appellant from interfering with the

peaceful right, title and interest and possession of the plaintiff-respondent in

respect of the suit property and further passed a decree in the mandatory

form to remove the electric post and the transformer from the suit property.

Assailing the said judgment and decree of the Trial Court the

defendant-appellant filed the appeal before the Additional District Judge, 7 th

Court, Paschim Midnapore being Title Appeal no. 19 of 2014 and raises an

identical issue including the power conferred upon them under Section 164

of the Electricity Act, 2003 but the Appellate court repelled the aforesaid

contention and maintained the decree of permanent injunction as well as

the mandatory injunction. However, the Appellate Court set aside the

portion of the decree passed by the Trial Court relating to the right, title and

interest and possession of the plaintiff-respondent in respect of the suit

premises. According to the Appellate Court there was no dispute in respect

of a right, title and interest of the plaintiff-respondent so far as the suit

properties are concerned and, therefore, the Trial Court has wrongly framed

issue and proceeded to decide the same.

The defendant-appellant have assailed the said judgement and

decree of the Appellate Court in the instant appeal on the score that the

findings of both the Courts below relating to exercise of power under the

Telegraph Act in view of Section 164 of the Electricity Act, 2003 is infirmed

and therefore, it raises a substantial question of law. The judgment of the

Appellate Court further reveals that an application under Order 41 Rule 27

of the Code of Civil Procedure was taken out for adducing an additional

evidence wherein they intend to rely upon a photocopy of an agreement

entered between the M/s. B. Ghosh Company & the Divisional Engineer

which is also rejected by the Appellate Court.

The learned Advocate appearing for the respondent raises an

issue that the electrification programme was undertaken under the Central

Scheme to cater the needs of the rural people and such being a larger public

policy, the Courts ought not to have decreed the suit. It is further contended

that there was no resistance offered by the plaintiff-respondent at the time

of installing the poles and the transformer at the suit plots and in view of

Section 164 of the Electricity Act, 2003 the installation was done which

cannot be said to be illegal or beyond the purview of the aforesaid provision.

Basically, the entire argument is advanced on the plea that the

electrification programme is for the benefit of the larger people and

therefore, the interference of the Court in this regard is unwarranted.

At the very outset, we must observe that the statutory authority

cannot exercise the power unless conferred by the statute or the statutory

rules framed in this regard and therefore, every action of the statutory

authority has to be judged on the parameters of the relevant provisions

conferring the power of the statutory authority to do certain acts. Section

164 of the Electricity Act, 2003 confers power upon the appropriate

Government in relation to the placing of the electric lines or electrical plants

for transmission of the electricity and by necessary reference the provisions

relating to the Indian Telegraph Act, 1885 is incorporated therein. The

aforesaid provision indicates that while placing the electric line or electric

plants the power conferred upon the telegraph authority under the

Telegraph Act more particularly, Section 10 thereof can be exercised by the

distribution licensees to which we did not find any ambiguity in this regard.

The Section 164 of the Electricity Act, 2003 is quoted as under:

"Exercise of powers of Telegraph Authority in certain

cases. - 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 co-

ordination 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 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 purpose of a telegraph established or

maintained, by the Government or to be so established or

maintained."

On the meaningful reading of the aforesaid provision it appears

that the appropriate Government may by order in writing conferred upon in

public officer, licensee or any other person engaged in the business of the

supplying electricity for placing of the electric lines or the electric plants for

transmission of electricity akin to the powers conferred upon the telegraph

authority under the Indian Telegraph Act, 1885. The expression "by order in

writing" has to be understood in a meaningful manner and eradicate the

conferment of power impliedly or orally. The moment the aforesaid

expression is used in the Section itself the conferment of power must be in

consonance therewith and it cannot be presumed that the moment the

electricity line or the electrical plant is installed over the property of another,

such power is inhered and inbuilt into the authority. Any such

interpretation shall be opposed to the legislative intent and would render the

efficacy of the expression "by order in writing" otios and/or redundant. Once

the statute has indicated the modalities and the manner in which power can

be exercised by an authority, in absence thereof, the authority cannot

assume such powers. Admittedly not a scrap of paper was produced during

the deposition of the defendant-appellant that the appropriate Government

in writing has conferred the power that of the Telegraph Authority under the

aforesaid section. Rather the defendant-appellant has proceeded on the

basis that the installation of the electric poles and the transformer on the

property belonging to the plaintiffs-respondent was undertaken upon

obtaining the consent from them but no iota piece of papers was produced

that such consent was granted.

Several other provisions in this regard are also required to be

recapitulated. Section 10 of the Indian Telegraph Act, 1885 confers power

upon the telegraph authority to place and/or maintain the telegraph line

over and under, along or across and post in or upon any more property

subject to the conditions incorporated therein to Section 10 of the Indian

Telegraph Act, 1885 runs thus:

"10. Power to 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."

Section 12 of the said Act provides that any person given by the local

authority under Section 10 in relation to Clause C of Section 10 as quoted

above, may be given subject to such reasonable condition as the authority

may think fit to impose pertaining to the payment of any expenses to which

the authority will necessary be put in any consequence in exercise of powers

conferred under the said Section 10.

It would be relevant to consider the provisions contained under

Section 16 of the Indian Telegraph Act which runs 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 -

- (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, he 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 this 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 those

jurisdiction he property is situate, be determined by

them.

(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."

The meaningful reading of the abovementioned provision leaves no

ambiguity that while exercising the power under Section 10 of the said Act if

any resistance or obstruction is offered, the District Magistrate in his

discretion may order that the telegraph authority shall be permitted to

exercise them. It further provides that in case of any dispute concerning the

sufficiency of the compensation, an application for such purpose be made

either of the disputing parties to the District Judge who shall thereafter

determine the same.

It is a specific case of the plaintiff-respondent that they offered

resistance and protested for the installation of the electric post and the

transformer at the property and, therefore, it was obligatory on the part of

the defendant-appellant to approach the District Judge to seek an order for

continuance of the said work.

Apart from the same the works of Licensees Rules, 2006 framed in

exercise of power under Section 176 read with Section 67 of the Electricity

Act, 2003 contained the exhaustive provision relating to the execution of

work by the Licensee Rule 3 thereof provides that the licensee may carry

out, lay down or place any electric supply line or other works through or

against any building or over or under any line with the prior consent of the

owner or occupier of any building or land. The aforesaid Rules further takes

care of the situation where the consent is not given and an objection is

raised; it is obligatory on the part of the licensee to obtain a permission in

writing from a District Magistrate or the Commissioner of Police or any other

officer authorised by the State Government for carrying out such work.

On conjoint reading of the aforesaid provision it is manifest that all

the aforesaid provisions mandates not only the conferment of power by the

appropriate Government but in case of any resistance or obstruction offered

by the owner or occupier of the land where the electric lines or the

transformer are to be installed, a specific order in writing from the

competent authority is required to be taken. Presumably the defendant-

authority took shelter under Rule 3 of the Works of Licensee Rule , 2006

which provides that any electric supply line or other works can be

undertaken under or over any line with the prior consent of the owner or

occupier of the building or line.

As indicated above the defendant-appellant miserably failed to

produce any consent having obtained from the plaintiffs-respondent and

both the Courts have found that the aforesaid stand taken by the defendant-

appellant has not been proved. It further appears that on the application

taken out by the defendant-appellant the Commissioner was appointed to

inspect the property in question to ascertain as to whether the electric poles

and the transformer have engulfed within itself, the Smriti Mandir

constructed by the mother of the plaintiff-respondent. The report reveals

that all the poles are within a close proximity of the said mandir and the

transformer is also affixed near to it. It was not necessary to have the

inspection as the defendant/appellant is required to prove that all the

necessary permission under the relevant provision of the statute have been

obtained. The plaintiff-respondent categorically averred that they protested

at the time of installation of the said poles and the transformer and

therefore, it was obligatory on the part of the defendant-appellant to take

recourse to the provision of the law as indicated above, as the stand of

consent having obtained from them could not be proved. Once the Statute

requires a particular thing to be done and in a particular manner it has to

be done in such manner and not otherwise.

So far as the application for production of additional e vidence under

Order 41 Rule 27 of the Code of Civil Procedure is concerned, we do not find

any infirmity in the order of the Appellate Court in rejecting the same. The

Court may permit the appellant to produce additional evidence provided

such evidence has a nexus with the core issue upon recording the

satisfaction of the condition enshrined therein.

The evidence which is irrelevant and does not impact the issues

involved in the suit cannot be permitted to be brought on record by way of

additional evidence.

We thus do not find that the instant appeal involved substantial

question of law. The appeal is thus dismissed.

No order as to costs.

Urgent Photostat certified copies of this judgment, if applied for, be

made available to the parties subject to compliance with requisite

formalities.

I agree.

(Prasenjit Biswas, J.)                              (Harish Tandon, J.)