Mahanagar Telephone Nigam Ltd. vs District Magistrate And Anr.
2009 Latest Caselaw 3401 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


+                        W.P.(C) 518/2000


                                           Date of decision : 27.08.2009

IN THE MATTER OF :

MAHANAGAR TELEPHONE NIGAM LTD.                      ..... Petitioner
                  Through: Mr. Ravi Sikri, Advocate


                         versus


DISTRICT MAGISTRATE AND ANR.                                ..... Respondents
                   Through: None

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may be allowed to see the
        Judgment? Yes.

     2. To be referred to the Reporter or not? Yes.

     3. Whether the judgment should be reported in the Digest?   Yes.

HIMA KOHLI, J. (ORAL)

1. The present writ petition is directed against the order dated

27.10.1999 passed by the District Magistrate, Delhi, on a complaint dated

16.8.1997 made by respondent No.2, directing the petitioner/MTNL to

remove the obstruction from the respondent No.2‟s drive way and relocate

the pillars of the junction boxes at a suitable place.

2. Counsel for the petitioner states that the provisions of Section 17

of the Indian Telegraph Act, 1985, (hereinafter referred to as „the Act‟) are

not applicable to the facts of the present case as the three junction boxes in

question have not been installed by the petitioner within the property of

respondent No. 2 and rather, the same are on public land. He states that

Section 17 of the Act can come to the aid of only such persons, who are

aggrieved by the action of the petitioner of installing telegraph lines on the

private property or the property with which, an aggrieved party intends to

deal with in any manner. He submits that in the present case, the three

telegraph lines/junction boxes were laid on land belonging to the local

authorities and no objection had been raised by any private party at the

relevant time, and that the only requirement to be fulfilled by the petitioner

at the time of laying the telegraph lines on a property vested in a local

authority, was to take permission from the said authority, as envisaged

under proviso (c) of Section 10 of the Act. Hence, it is stated that the

complaint of respondent No. 2 for removal of junction boxes fixed across the

front wall of his property, was misplaced and was liable to be rejected.

3. During the pendency of the present writ petition, respondent No.

2 expired and his legal heirs were brought on the record. However, none

has entered appearance on their behalf even after notices were issued to

them and duly received. Perusal of the file shows that a counter affidavit

was filed by respondent No. 2 under index dated 17.05.2000, wherein the

impugned order dated 27.10.1999 was sought to be supported. It was

averred in the counter affidavit that laying of junction boxes had totally

blocked the respondent No.2‟s drive way which was the only entry to his

house. It was further stated that in view of the fact that the decision of the

learned District Magistrate was based on the report of the SDM, which

remained unchallenged by the petitioner, it cannot dispute the findings of

facts returned by the learned District Magistrate.

4. A perusal of the impugned order shows that the SDM of the area

was directed to visit the site, i.e, House No.27, Surya Niketan, Delhi and

submit an inspection report. In the said report dated 16.4.1999 (Annexure

R-2 to the counter affidavit), the SDM observed that the petitioner/MTNL

had installed three extension boxes in front of the plot, subject matter of the

writ petition. He also examined the sanction plan of the DDA and noted that

the extension boxes came in front of the proposed gate as per copy of the

plan submitted by respondent No. 2. While taking note of the distance

between the junction boxes and the boundary wall of the plot, the SDM

observed that there was every possibility that if the main gate is constructed

as per the proposed site plan, then the drive way of the respondent No. 2

would be obstructed. Taking into consideration the aforesaid report of the

SDM, the learned District Magistrate arrived at the conclusion that the

junction boxes were liable to be removed on account of causing obstruction

to the respondent‟s drive way, with further directions to the petitioner to

relocate the same at a suitable place.

5. The contention of the counsel for the petitioner that the

provisions of Section 17 of the Act do not come to the aid of the respondent

No. 2, has to be seen in the light of the said provision, which is reproduced

hereinbelow for ready reference:

"Section 17: Removal or alteration of Telegraph line or post on property other than that of a local authority.

(1) When under the foregoing provisions of this Act a telegraph line or post has been placed by the telegraph authority under, over, along, across, in or upon any property, not being property vested in or under the control or management of a local authority; and any person entitled to do so desires to deal with that property in such a manner as to render if necessary or convenient that the telegraph line or post should be removed to another part thereof or to a higher or lower level or altered in form, he may require the telegraph authority to remove or alter the line or post accordingly:

Provided that if compensation has been paid under section 10 clause (d), he shall when making the requisition, tender to the telegraph authority the amount requisite to defray the expense of the removal or alteration, or half of the amount paid as compensation, whichever may be the smaller sum.

(2) If the telegraph authority omits to comply with the requisition, the person making it may apply to the District Magistrate within whose jurisdiction the property is situated to order the removal or alteration.

(3) A District Magistrate receiving an application under sub section (2) may in his discretion, reject the same or make an order, absolutely or subject to conditions, for the removal of the telegraph line or post to any other part of the property or to a higher or lower level or for the alteration of its form; and the order so made shall be final."

6. A perusal of the aforesaid provision makes it apparent that any

person, who is entitled to or desires to deal with the property, along/across

of which, a telegraph line or post has been placed by the Telegraph Authority

in such a manner as to cause obstruction, may call upon the authority to

remove or alter the line or post to another place. It, however, stipulates

that if the authority fails to comply with the requisition, the aggrieved party

may apply to the District Magistrate for removal or alteration. In the present

case, respondent No. 2 approached the District Magistrate in view of the

failure on the part of the petitioner/MTNL to remove the junction boxes

existing "along" or "across" his property. Merely because the junction

boxes are affixed on public land, does not mean that respondent No. 2 could

not have invoked the provisions of Section 17, as even a junction

box/telegraph line situated "along" or "across" the private property comes

under the purview of the said provision. Thus, the plea of the petitioner that

Section 17 of the Act could not have been invoked by the respondent no. 2,

as the junction boxes were on public land, is found to be devoid of merits

and is turned down.

7. During the pendency of the present proceedings, considering the

long lapse of time since the institution of the present petition, it was deemed

appropriate to verify the current position at site. The petitioner was

therefore called upon to place on the record the latest photographs of the

junction boxes existing at the site, in relation to the boundary wall of the

respondent No.2. Needful has been done. A perusal of the photographs

placed on the record by the petitioner/MTNL shows that there now exists a

gate on the boundary wall of the property in question, which is located right

behind the junction boxes and cannot be freely accessed on account of

obstruction caused by the junction boxes. The situation has thus changed.

At the time of passing the impugned order, there was only a boundary wall

enclosing the plot in question and the SDM had given his report on the basis

of the sanction plans and the site visit. Now, there is a gate installed at the

opening of the drive way, right in front of which the junction boxes of the

petitioner are found to be installed. As a result, the gate cannot be opened

completely, but only partially and there is a hindrance to the gateway of the

property. Thus, the report of the SDM relied upon in the impugned order is

only fortified by the current photographs of the site, filed by the

petitioner/MTNL.

8. In view of the aforesaid facts and circumstances and the current

position at site, this Court is of the opinion that there is no illegality,

arbitrariness and perversity in the impugned order dated 27.10.1999, which

deserves interference in judicial review. The writ petition is dismissed with

no orders as to costs. The petitioner/MTNL is directed to relocate the three

junction boxes at a suitable place, within a period of eight weeks.

                                                            HIMA KOHLI,J
AUGUST     27, 2009
rkb/rs