M/S. FRANCISCAN MISSIONARY BROTHERS vs POWER GRID CORPORATION OF INDIA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 3[RD] DAY OF AUGUST 2022 / 12TH SRAVANA, 1944** ## **OP(C) NO. 2072 OF 2021** **ARISING FORM THE ORDER DATED 13.1.2015 IN OP (ELE)213/2009 ON THE FILE OF THE** **ADDITIONAL DISTRICT JUDGE II, KALPETTA** **PETITIONER/PETITIONER:** **M/S. FRANCISCAN MISSIONARY BROTHERS, REGISTERED UNDER TC ACT 12 OF 1955 REPRESENTED BY REV.BROTHER PETER VAZHAPARAMBIL, SUPERIOR AND DIRECTOR, ASSISI SNEHA SADHAN AHSRAMAM (CALVERY ASHRAMAM), PANNAVALLI.P.O, THIRUNELLI VILLAGE, MANANTHAVADY TALUK, WAYANAD DISTRICT-670645. BY ADVS. R.S.KALKURA P.V.VARGHESE (KANJIRAMATTOM) M.S.KALESH HARISH GOPINATH P.I.NAJUMAL HUSSAIN ANJALI B CHANDRAN** ## **RESPONDENT/RESPONDENT:** **POWER GRID CORPORATION OF INDIA, REPRESENTED BY DEPUTY GENERAL MANAGER, AREEKODE, UGRAPURAM.P.O, MALAPPURAM DISTRICT-673639.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03.08.2022, ALONG WITH** **OP(C).2075/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P.(C)Nos.2072 & 2075 of 2021** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 3[RD] DAY OF AUGUST 2022 / 12TH SRAVANA, 1944** **OP(C) NO. 2075 OF 2021** **ARISING FROM THE ORDER DATED 13.1.2015 IN O.P.(ELE)8/2011 ON THE FILE** **OF THE ADDITIONAL DISTRICT JUDGE II, KALPETTA** ## **PETITIONER/PETITIONER:** **M/S. FRANCISCAN MISSIONRY BROTHERS, REGISTERED UNDER TC ACT 12 OF 1955 REPRESENTED BY REV.BROTHER PETER VAZHAPARAMBIL, SUPERIOR AND DIRECTOR, ASSISI SNEHA SADHAN ASHRAMAM (CALVERY ASHRAMAM), PANNAVALLI.P.O, THIRUNELLI VILLAGE, MANANTHAVADY TALUK, WAYANAD DISTRICT-670 645. BY ADVS. R.S.KALKURA P.V.VARGHESE (KANJIRAMATTOM) M.S.KALESH HARISH GOPINATH P.I.NAJUMAL HUSSAIN ANJALI B CHANDRAN** ## **RESPONDENT/RESPONDENT:** **POWER GRID CORPORATION OF INDIA, REPRESENTED BY DEPUTY GENERAL MANAGER, AREEKODE, UGRAPURAM.P.O, MALAPPURAM DISTRICT-673639.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03.08.2022,** **ALONG WITH OP(C).2072/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P.(C)Nos.2072 & 2075 of 2021** **3** ## **COMMON JUDGMENT** ## **Dated this the 03[rd] day of August, 2022** As these original petitions are between the same parties, they are being disposed of by this common judgment. 2. The original petitions are filed to set aside the orders in O.P(Ele)Nos.213/2009 and 8/2011 passed by the Court of the Additional District Judge II, Kalpetta. 3. The petitioner's common case, in the original petitions, in brief, relevant for the determination of the original petition is : they are an institution, formed by an association of persons consisting of Christian monks, registered under the Travancore-Cochin Literary Scientific Societies Registration Act 12 of 1955. The petitioner is the absolute owner in possession of immovable properties comprised in **O.P.(C)Nos.2072 & 2075 of 2021** **4** Survey No.353 of Thirunelli Village, Mananthavady Taluk. The respondent is engaged in transmission of power. The respondent had, in the process of drawing a 400 KV double circuit line, cut down considerable number of valuable trees standing in the property of the petitioner. As the respondent had paid only a meager amount as compensation, the petitioner filed O.P(Ele)Nos.8/2011 and 213/2009 before the Court of the District Judge, Kalpetta, for enhancement of compensation. The respondent appeared in the original petitions and filed their written objections, inter alia, contending that the District Court has no jurisdiction to entertain the original petitions. The learned District Judge, by separate Ext.P8 orders both in O.P.(C) No.2072/21 and O.P.(C) No.2075/2021, dismissed the original petitions as not pressed, as per the memo filed by the learned counsel for the petitioner. The not pressed memo was filed only because the court below **O.P.(C)Nos.2072 & 2075 of 2021** **5** had earlier dismissed O.P (E)No.76/2010 as not maintainable by Ext.P7 order. The impugned orders are erroneous and wrong. Hence, the original petitions. 4. Heard; Sri.R.S.Kalkura, the learned counsel appearing for the petitioner in both the original petitions and Sri.Millu Dandapani, the learned standing counsel appearing for the respondent in both the original petitions. 5. The point is whether there is any error in the impugned Ext.P8 orders passed in both the original petitions. 6. On a reading of the averments, O.P(Ele)Nos.213/2009 and 8/2011, it is seen that the original petitions were dismissed as not pressed in the light of Ext.P7 order passed by the court below. This Court, by judgment dated 05.07.2022 in O.P.(C) No.1229 of 2020, has set aside Ext.P7 order holding it to be erroneous. Therefore, the petitioner is entitled to **O.P.(C)Nos.2072 & 2075 of 2021** **6** benefit of the said judgment, especially since the petitioner had not pressed the original petitions only in the light of Ext.P7 order. Even otherwise, the original petitions were filed under Section 51 of the Indian Electricity Act, 2003 read with Sections 10 and 16 of the Indian Telegraph Act, 1885 and Ss.42 and 60 of the Indian Electricity Supply Act. The respondent contended in the written objections that the District Court has no jurisdiction to entertain the original petitions in view of Act 36 of 2003. 7. Sec.16 of the Indian Telegraph Act, 1885 reads as follows: ## **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, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them. **O.P.(C)Nos.2072 & 2075 of 2021** **7** (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 their being exercised, he shall be deemed to have committed an offence under section 188 of the Indian Penal Code, 1860 (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 whose jurisdiction the property is situate, be determined by him. (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. **O.P.(C)Nos.2072 & 2075 of 2021** **8** 8. A reading of sub-section (3) of Sec.16 of the above Act, clearly establishes that in case of any dispute regarding the sufficiency of compensation, the disputing party has to approach the District Judge, within whose jurisdiction the property is situated, and the District Judge is to determine the dispute. Thus, going by the aforequoted provision, it is the Court of the District Judge, who is the competent to decide the sufficiency of compensation payable by the telegraph authority to the disputing party. 9. The above position is no longer res integra in view of the categoric declaration of law by the Hon’ble Supreme Court in **Power Grid Corporation of India Ltd vs. Century Textiles and Industries Ltd. [2017** **(1) KLT 2074 (SC)]** . The Hon’ble Supreme Court has in paragraph 26 and 27 held as follows: 26) These are sufficient reasons to allow Civil Appeal **O.P.(C)Nos.2072 & 2075 of 2021** **9** No. 10951 of 2016 preferred by the Power Grid by setting aside those directions. Ordered accordingly. We make it clear that if the writ petitioner feels that it is entitled to any compensation, the appropriate course of action is to file a suit before the concerned District Judge for this purpose. It would also be apt to point out at this stage that the Central Government has framed guidelines dated October 15, 2015 in this behalf which inter alia provide that the issue of compensation may be resolved having regard to the mode and manner of assessment of compensation as per the said guidelines. Therefore, it would always be open to the writ petitioner to avail the remedy as per the said guidelines. 27) CIVIL APPEAL NO. 8951 OF 2011 - This appeal is filed by Power Grid in the case of Ram Naresh Singh. In this case, transmission lines are in District Sasaram in the State of Bihar. The complete work for laying down the transmission lines where 524 overhead towers have been erected by the Power Grid. Out of these, only 1 tower is located at the land belonging to Ram Naresh Singh. The dispute raised is with regard to quantum of compensation and as per the provisions of Section 16 of the Indian Telegraph Act, 1885, it is to be settled by the District Judge. Thus, for all the reasons given above in the case of Century Textiles & Industries Limited, this appeal of the Power Grid stands allowed and the judgment of the High Court is set aside. **O.P.(C)Nos.2072 & 2075 of 2021** **10** 10. A similar view has been taken by this Court in **Joseph V.J vs. Power Grid Corporation of India Ltd and others [2017 KHC 2718]** and **Jayaram and others v. Kerala State Electricity Board, Thiruvananthapuram [2015 (3) KHC 453].** 11. In the light of the clear enunciation of law under Sec.16 (3) of the Indian Telegraph Act, 1885 and the law laid down by the Hon’ble Supreme Court and this Court in the aforecited decisions, and the judgment of this Court in O.P.(C)No.1229/2020, setting aside Ext.P7 order, I am of the firm view that the petitioner should also be given an opportunity to context O.P(Ele) Nos.213/2009 and 8/2021 on its merits. In the result, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I allow the original petitions and **O.P.(C)Nos.2072 & 2075 of 2021** **11** pass the following orders:- (i) Ext.P8 order in O.P.(C)No.2072/2021 is set aside. (ii) O.P.(Ele)No.213/2009 of the Court of the Additional District Judge II, Kalpetta is restored back to file. (iii) Ext.P8 order in O.P.(C)No.2075/2021 is set aside. (iv) O.P.(Ele)No.8/2011 of the Court of the Additional District Judge II, Kalpetta is restored back to file. (v) The Court of the Additional District Judge II, Kalpetta is directed to consider and dispose of O.P(Ele)Nos.213/2009 and 8/2011, in accordance with law. (vi) On a consideration of the fact that the original petitions are of the years 2009 and 2011, every endeavour shall be made by the court below to dispose ## **O.P.(C)Nos.2072 & 2075 of 2021** of the above cases as expeditiously as possible, at any rate, on or before 31.03.2023. (vii) It is made clear that, as O.P.(Ele) Nos.213/2009 and 8/2011 were dismissed as not pressed by the petitioner, in the eventuality of the original petitions being allowed and the compensation being enhanced, the petitioner would be disentitled for interest on the enhanced compensation for the period from 13.01.2015 till 03.08.2022. **Sd/-** **C.S.DIAS Judge** NR/03/08/2022 **O.P.(C)Nos.2072 & 2075 of 2021** **13** ## **APPENDIX OF OP(C) 2072/2021** ## **PETITIONER'S EXHIBITS** **Exhibit P1 TRUE COPY OF THE CERTIFICATE OF REGISTRATION ISSUED BY THE REGISTRAR OF SOCIETIES, THIRUVANANTHAPURAM DISTRICT DATED 21.1.1964 Exhibit P2 TRUE COPY OF THE LETTER OF AUTHORITY DATED 3.4.2019 ISSUED BY PETITIONER'S PROVINCIAL SUPERIOR, ST.THOMAS PROVINCE APPOINTING THE PETITIONER AS THE SUPERIOR AND MANAGER OF THE ASSISI SNEHA SADHAN ASHRAMAM(CALVERY ASHRAMAM) Exhibit P3 TRUE COPY OF THE ORIGINAL PETITION IN O.P. (E)NO.8/2011 FILED BY THE PETITIONER BEFORE THE DISTRICT JUDGE, KALPETTA Exhibit P4 TRUE COPY OF THE ORIGINAL PETITION IN O.P. (E)NO.213/2009 FILED BY THE PETITIONER BEFORE THE DISTRICT JUDGE, KALPETTA Exhibit P5 TRUE COPY OF THE OBJECTION SUBMITTED BY THE RESPONDENT IN O.P.(E)NO.8/2011 Exhibit P6 TRUE COPY OF THE OBJECTION SUBMITTED BY THE RESPONDENT NO.O.P.(E)NO.213/2009 Exhibit P7 TRUE COPY OF THE ORDER DATED 20.12.2014 IN O.P. (E)NO.76/2010 ON THE ADDITIONAL DISTRICT JUDGE-II, KALPETTA, WAYANAD. Exhibit P8 TRUE COPY OF THE ORDER DATED 13.1.2015 IN O.P. (E) NO.8/2011 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE II, KALPETTA ,WAYANAD Exhibit P9 TRUE COPY OF THE ORDER DATED 06.1.2015 IN O.P. (E)NO.213/2009 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE II, KALPETTA, WAYANAD Exhibit P10 TRUE COPY OF THE O.P.NO.9/2018 FILED BY THE PETITIONER BEFORE THE KERALA STATE ELECTRICITY REGULATORY COMMISSION. Exhibit P11 TRUE COPY OF THE ORDER IN OP.NO.9/2018 DATED 13.3.2020 ISSUED BY THE KERALA STATE ELECTRICITY REGULATORY COMMISSION.** **O.P.(C)Nos.2072 & 2075 of 2021** **14** ## **APPENDIX OF OP(C) 2075/2021** **PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE CERTIFICATE OF REGISTRATION ISSUED BY THE REGISTRAR OF SOCIETIES, THIRUVANANTHAPURAM DISTRICT DATED 21.1.1964 Exhibit P2 THE TRUE COPY OF THE LETTER OF AUTHORITY DATED 3.4.2019 ISSUED BY PETITIONER'S PROVINCIAL SUPERIOR, ST.THOMAS PROVINCE APPOINTING THE PETITIONER AS THE SUPERIOR AND MANAGER OF THE ASSISI SNEHA SADHAN ASHRAMAM(CALVERY ASHRAMAM) Exhibit P3 TRUE COPY OF THE ORIGINAL PERITION IN O.P. (E)NO.8/2011 FILED BY THE PETITIONER BEFORE THE DISTRICT JUDGE, KALPETTA Exhibit P4 TRUE COPY OF THE ORIGINAL PETITION IN O.P. (E)NO.213/2009 FILED BY THE PETITIONER BEFORE THE DISTRICT JUDGE, KALPETTA. Exhibit P5 TRUE COPY OF THE OBJECTION SUBMITTED BY THE RESPONDENT IN O.P.(E)NO.8/2011 Exhibit P6 TRUE COPY OF THE OBJECTION SUBMITTED BY THE RESPONDENT IN O.P.(E) NO.213/2009. Exhibit P7 TRUE COPY OF THE ORDER DATED 20.12.2014 IN O.P. (E)NO.76/2010 ON THE ADDITIONAL DISTRICT JUDGE-II, KALPETTA, WAYANAD. Exhibit P8 TRUE COPY OF THE ORDER DATED 13.1.2015 IN O.P. (E) NO.8/2011 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE II, KALPETTA ,WAYANAD Exhibit P9 TRUE COPY OF THE ORDER DATED 06.1.2015 IN O.P. (E)NO.213/2009 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE II, KALPETTA, WAYANAD Exhibit P10 TRUE COPY OF THE O.P.NO.9/2018 FILED BY THE PETITIONER BEFORE THE KERALA STATE ELECTRICITY REGULATORY COMMISSION. Exhibit P11 TRUE COPY OF THE ORDER IN OP.NO.9/2018 DATED 13.3.2020 ISSUED BY THE KERALA STATE ELECTRICITY REGULATORY COMMISSION.**