OP (C) No. 1229 of 2020

1 OP (C)No. 1229 of 2020 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 5[TH] DAY OF JULY 2022 / 14TH ASHADHA, 1944 ``` ## **`OP(C) NO. 1229 OF 2020`** ## **`AGAINST THE ORDER/JUDGMENT IN OP(ELE)76/2010 OF ADDITIONAL DISTRICT COURT - II, KALPETTA`** ## **`PETITIONER/S:`** - `1 RAJAGOPALAN,AGED 59 YEARS,S/O. LATE YENKITTA HAWWA @ YENKITTA AVVA, PULIMOOTTIL (H), THRISSILLERI AMSOM DESOM, VELANCHERY, PANAVALLY (POST), MANANTHAVADY670645.` - `2 RAMADAS,AGED 54 YEARS,S/O. LATE YENKITTY HAWWA @ YENKITTA AVVA, PULIMOOTTIL (H), THRISSILLERI AMSOM DESOM, VELANCHERY, PANAVALLY (POST), MANANTHAVADY670645.` - `3 RAJAMMA,AGED 47 YEARS,D/O. LATE YENKITTY HAWWA @ YENKITTA AVVA, PULIMOOTTIL (H), THRISSILLERI AMSOM DESOM, VELANCHERY, PANAVALLY (POST), MANANTHAVADY670645.` - `4 NIRMALA,AGED 49 YEARS,D/O. LATE YENKITTY HAWWA @ YENKITTY AVVA, PULIMOOTTIL (H), THRISSILLERI AMSOM DESOM, VELANCHERY, PANAVALLY (POST), MANANTHAVADY670645.` - `5 RADHAKRISHNAN,AGED 46 YEARS,S/O. LATE YENKITTY HAWWA @ YENKITTY AVVA, PULIMOOTTIL (H), THRISSILLERI AMSOM DESOM, VELANCHERY, PANAVALLY (POST), MANANTHAVADY670645.` - `6 SURESH BABU,AGED 44 YEARS,S/O. LATE YENKITTY HAWWA @ YENKITTY AVVA, PULIMOOTTIL (H), THRISSILLERI AMSOM DESOM, VELANCHERY, PANAVALLY (POST), MANANTHAVADY670645.` ``` BY ADVS. ``` ``` R.S.KALKURA SRI.P.V.VARGHESE (KANJIRAMATTOM) ``` ## **`RESPONDENT/S:`** ``` POWER GRID CORPORATION OF INDIA REPRESENTED BY DEPUTY GENERAL MANAGER, AREEKODE, UGRAPURAM P.O., MALAPPURAM DISTRICT-673639. ``` ``` BY SRI.MILLU DANDAPANI, STANDING COUNSEL ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.07.2022, ``` ``` THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 OP (C)No. 1229 of 2020 **C.S DIAS,J. --------------------------OP (C)No. 1229 of 2020 ----------------------------Dated this the 5[th] day of July, 2022.** ## **JUDGMENT** The original petition is filed to set aside the order dated 20.12.2014 in OP (Electricity) No.76/2010 passed by the Court of the Additional District Judge-II, Kalpetta. 2. The petitioners’ case, in brief, in the original petition is that they are the legal heirs of Yenkitty Hawwa @ Yenkitta Avva. The deceased had during her life time instituted OP (E) No.76/2010 before the District Court, Wayanad, under Sec.51 of the Indian Electricity Act read with Ss. 10 and 15 of the Indian Telegraph Act, 1885, seeking enhanced compensation for the damages suffered to her due to the drawing of electricity line through her property. During the pendency of the proceeding, the above-mentioned person died. The petitioners – the legal heirs of the deceased - got themselves impleaded as additional 3 OP (C)No. 1229 of 2020 petitioners. The respondent had filed Ext P2 written objection, inter alia, contending that the District Court has no jurisdiction to entertain the original petition. The District Judge framed a preliminary issue and by the impugned Ext P3 order has arrived at the conclusion that the District Court has no jurisdiction to entertain the original petition in the light of Sec.145 of the Electricity Act, 2003. Ext P3 order is ex-facie erroneous and wrong. Hence the original petition. 3. Heard; Sri.R.S Kalkura, the learned counsel appearing for the petitioners and Sri.Millu Dandapani, the learned counsel appearing for the respondent. 4. The sole point that arises for consideration in the original petition is whether there is any error in Ext P3 order. 5. On a reading of the averments in Ext P1 original petition, it is seen that the predecessor-ininterest of the petitioners had filed the original petition, to direct the respondent to pay an amount of Rs.3,80,707/- as compensation as provided under Ss. 4 OP (C)No. 1229 of 2020 10 and 16 of the Indian Telegraph Act, 1885, read with Sec.51 of the Indian Electricity Act and Ss.42 and 60 of the Indian Electricity Supply Act. 6. The respondent had filed Ext P2 objection contending that the District Court has no jurisdiction to entertain Ext P1 original petition 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. (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 of the sufficiency compensation to be paid under section 10, clause (d), it shall, on 5 OP (C)No. 1229 of 2020 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 subsection (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. 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 6 OP (C)No. 1229 of 2020 disputing party has to approach the District Judge, within whose jurisdiction the property is situated, and the District Judge is to determine the dispute. Therefore, going by the aforequoted provision, it is the Court of the District Judge, who is the competent authority to decide the sufficiency of compensation that the telegraph authority is liable 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 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 7 OP (C)No. 1229 of 2020 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. 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** 8 OP (C)No. 1229 of 2020 ## **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, I am of the definite view that the impugned order is erroneous and unsustainable in law. In the result, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I allow the original petition by passing the following orders: (i) Ext P3 order dated 20.12.2014 is set aside. (ii) OP (E) 76/2010 is restored to file. (iii) The Court of the Additional District Judge-II, Kalpetta is directed to consider and dispose of OP(E) 76/2010, in accordance with law. (iv) On a consideration of the fact that the original petition is of the year 2010, every endeavour shall be made by the court below to consider and 9 OP (C)No. 1229 of 2020 dispose of OP (E) 76/2010, as expeditiously as possible, at any rate, on or before 23.12.2022. sd/- sks/5.7.2022 **C.S.DIAS, JUDGE** 10 OP (C)No. 1229 of 2020 ## **`APPENDIX OF OP(C) 1229/2020`** ``` PETITIONER EXHIBITS EXHIBIT P1 ``` ``` TRUE COPY OF THE ORIGINAL PETITION IN O.P.(E)NO.76/2010 FILED BY THE PETITIONER BEFORE THE DISTRICT JUDGE, KALPETTA. ``` ``` EXHIBIT P2TRUE COPY OF THE OBJECTION SUBMITTED BY THE RESPONDENT IN O.P.(E) NO.76/2010. ``` ``` EXHIBIT P3TRUE COPY OF THE ORDER DATED 20.12.2014 IN O.P.(E)NO.76/2010 ON THE ADDITIONAL DISTRICT JUDGE-II, KALPETTA, WAYANAD. EXHIBIT P4TRUE COPY OF THE ORDER DATED 13.3.2020 IN OP 9 OF 2018 OF THE STATE ELECTRICITY REGULATORY COMMISSION, THIRUVANANTHAPURAM. ``` ``` EXHIBIT P5AFFIDAVIT GIVEN BY THE ADVOCATE OF THE PETITIONER IN OP(E) NO.76 OF 2010 ISSUED TO THE PETITIONER. ```