Narayan Prosad Agarwal vs State of West Bengal

Satyabrata Sinha, J.—The Petitioner in this writ application has, inter alia, prayed for the following reliefs:

a) Writ of or in the nature of Mandamus commanding the Respondents their officers sub-ordinates, men and agents not to carry on with and/or give any further effects to their steps concerning the installations of the said alleged second new electricity transmission tower and extra high-voltage transmission lines on the landed property in Schedule hereto;

b) Writ of and/or in the nature of mandamus commanding the Respondents their sub-ordinates, men and agents to show cause as to why the said alleged first extra high voltage transmission tower with the extra-high voltage supply lines already existing on and above the property in schedule should not be in the circumstances of the case, removed or alternatively to show cause as to why the Petitioners have been so far kept debarred from a cess to due compensations and/or damages or both duly assessed comensurate with the land alleged to have been acquired and/or permantly taken over and/or vested and hazards and/or damages befalling the Petitioner.

The fact of the matter is not in dispute. The Petitioner is the owner of the lands described in paras. 2 and 3 of the writ application as also in the Schedule. It is not disputed that the Petitioner is the owner of the lands in question.

It is admitted that the National Thermal Power Corporation Ltd. which has a statutory power in terms of the provision of the Indian Telegraph Act as well as Indian Electricity Act to obtain the sanction from the Central Government in terms of Section 31 of the Indian Electricity Act. Overhead high tension lines are required to be drawn in terms of the provision of the Indian Electricity Rules, 1946. Admittedly the Tower was built on a portion of the land of the Petitioner which is delineated with Pink colour. The proposed Tower is sought to be built at a place which has been delineated with yellow colour. According to the Petitioner, the Petitioner''s dwelling house is by the side of the place where the proposed tower is sought to be installed.

Mr. Chatterjee, learned Counsel appearing on behalf of the Petitioner submits that the Respondents have no jurisdiction to instal any tower without acquiring the land in accordance with law. It appears that earlier a writ petition had been filed by the Petitioner which was marked as C.O. No. 10778 (W) of 1996 and by order dated August 5, 1996 N.K. Mitra, J. disposed of the said writ application. According to the Petitioner, despite the said order, the Respondents are again seeking to instal another tower for the purpose of drawing the overhead high tension line of 132 K.V.

Mr. Banerjee, learned Counsel appearing on behalf of the Respondent, however, submits that the Respondents are entitled to instal the tower and place overhead high tension line in terms of he provision of the Indian Electricity Act read with Section 10 of the Indian Telegraph Act. Section 10 of the Indian Telegraph Act reads thus:

The telegraph authority may, from time to t me place and maintain a telegraph line under, over; along or across, and posts in or upon, any immoveable 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 to for any damage sustained by them by reason of the exercise of those powers.

In view of the aforementioned provision, there cannot by any doubt whatsoever that the Respondents ire entitled to do so, However, the Respondents are required to pay compensation. Section 16(3) of the Indian Telegraph Act provides that if any dispute arises concerning the sufficiency of the compensation to be paid u/s 10, Clause (d), an application for that purpose may be filed by either of the disputing parties to be District Judge within whose jurisdiction the property is situate, and the same be determined by him.

In view of the aforementioned provision and keeping in view the statements made in the application for vacating stay that more than 99% work is over, I am of the opinion that the private right of the Petitioner must give way to the public interest. This aspect of the matter has been considered by a Bench of the Patna High Court in a case reported in Suku Mahto and Another Vs. State of Bihar and Others wherein it has been held:

This Court, it is now well settled, while exercising its jurisdiction under Article 226 of the Constitution of India may refuse to exercise its jurisdiction in a given case.

In Joy Bharat Transport Co. and Anr. v. Central Coalfields Ltd. 1988 B.L.T. 192 I held:

It is now well known that this Court does not interfere within a given case only because it would be lawful to do so. The High Court in exercise of its writ jurisdiction under Articles 226 and 227 of the Constitution of India may refuse to issue writ in the event it is found that substantial justice has been done to the parties or in larger interest it would not be prudent to issue a writ. It is also known that the right of an individual some time has not to give way to the right of the public at large. Under Article 226 of the Constitution of India, a High Court may refuse to exercise its jurisdiction in favour of a party who has not approached the Court with clean hands.

In that case reliance was placed upon the decision of the Supreme Court in the case of Municipal Board Pratapgarh v. Mahendra Singh Chawla and Ors. 1982 (2) S.C.C. 331 : 1982 U.J. (S.C.) wherein it has been held as follows:

What are the options before us, obviously as a logical corollary to our finding we have to interfere with the judgment of the High Court because the view taken by it is not in conformity with the law. It is at this stage that Mr. Sanghi, learned Counsel for the Respondent invited us to consider the humanitarian aspect of the matter. The submission is that the jurisdiction of this Court under Article 136 of the Constitution is discretionary and therefore this Court is not bound to tilt at every approach found not in consonance or confirmity with law but the interference may have a dileterious effect on the parties involved in the dispute. Laws cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Undoubtedly rule of law must prevail but as is often said rule of law must run akin to rules of life. And life of law is not logic but experience.

A Division Bench of the Allahabad High Court in Civil Misc. Writ Petition No. 12626 of 1987 in almost similar situation refused to grant relief to the Petitioner, thereof stating the law thus:

Furthermore, the present is not a fit case where under Article 226 of the Constitution any relief could be granted. It has been stated in the counter affidavit that Rs. 50,00,000/- would be suffered per day by the National Thermal Power Corporation Limited if the eucalyptus trees belonging to the Petitioner are not cut and line is not laid, as is planned by Respondent No. 2. As a result, the counter affidavit further says, the supply of electricity to Lucknow Moradabad and other districts would be hampered. As against the interest of the public at large the interest of the Petitioner cannot be given any consideration. The Petitioner had been asked by the letter dated 2.7.1987 by the Respondent 3 to be present at the time of cutting of the trees on July 15-16, 1987 so that woods may be removed by him. This can still be done. In our opinion, the present is not a case fit for granting of any of the reliefs prayed for.

This aspect of the matter has also recently been considered by the Supreme Court in Orissa Cement Limited v. State of Orissa and Ors. AIR 1991 S.C. 1976 wherein the Supreme Court opined:

It will be appreciated that it is not always possible in all situations to give a logical and complete effect to a finding. Many situations of this type arise in actual practice. For instance, there are cases where a Court comes to the conclusion that the termination of the services of an employee is invalid. Yet it refrains from giving him the benefit of ''reinstatement'' (i.e. continuity in service) or back wages. In such cases, the direction of the Court does result in a person being denied the benefits that should flow to him as a logical consequence of a declaration in his favour.

This aspect of the matter has also been considered in E. Venkatesar v. Chairman, T.N. Electricity Board AIR 1397 Mad 64.

In view of the aforementioned decisions, I am of the opinion that the Respondents may carry on their work but the same shall be subject to the following directions:

The Respondents shall pay the amount of compensation keeping in view the damages caused to the Petitioner as is required u/s 10 of the Indian Telegraph Act by May 11, 1997 together with the interest at the rate of 12% per annum from the date of taking over of the possession of the lands till the date of payment.

If the amount of compensation as aforementioned is not paid within the aforementioned period, the Respondents shall pay interest by way of penalty at the rate of 25% per annum.

It would be open to the Petitioner to raise contentions before the appropriate authority that by reason of the aforementioned act on the part of the Respondents the entire plots have been lost. Such contention may be determined by the appropriate-authority in terms of Section 51 of the Indian Electricity Act and Section 16(3) of the Indian Telegraph Act.

In the event there exists a dispute as regard sufficiency of the amount of compensation payable by the Respondent to the Petitioner, the same may be determined by the District Judge at an early date and preferably within a period of-two months from the date of filing of such application.

The writ application is disposed of with the aforementioned observations.

Let a plain copy of this order countersigned by the Assistant Registrar (Court) be given to the learned Counsel for the parties on usual undertaking.