Amitav Banerji, J.
1. This is an appeal by the defendant Union of India. Plaintiff filed a suit praying that the defendant be ordered to remove the telegraph line going over the plaintiff's house and also claimed damages in a sum of Rs. 360 against the defendant. Plaintiff's case in brief was that he has a house situate in Nagla Dina Fatehgarh in the district of Farrukhabad. The Telegraph Department wanted to carry telegraph line over the plaintiff's house to which the plaintiff objected. The person in-charge of the operation gave in writing that the line was being carried temporarily and would be removed within fifteen days. The line was not removed in spite of repeated requests and letters. The defendant had no right to carry the telegraph line over the house of the plaintiff and the defendant had a land only 15 or 20 yards away from the house of the plaintiff over which the telegraph line could be carried. As a result of the placement of the telegraph line over the plaintiffs property the plaintiff was unable to make use of his roof or to make constructions over it. Consequently, he was suffering damages at the rate of Rs. 10 per month.
2. In its defence the Union of India pleaded that the plaintiff had no cause of action to maintain the suit. The telegraph line could be taken over the plaintiff's house in exercise of the powers under Section 10 of the Telegraph Act, 1885 (hereinafter referred to as the Act). There was no question of giving any undertaking on behalf of the defendant by any servant of the defendant to remove the telegraph line nor Jethu Ram, who is said to have given the alleged writing, was in any way entitled to give such an undertaking. It has also pleaded that Jethu Ram had not given any undertaking. He was an illiterate person. The defendant having acquired the right of user the plaintiff was not entitled to file a suit to get the telegraph line removed. Since the defendant had not taken action under Section 10 of the Act, the civil court had no jurisdiction to try the suit. Lastly, it was alleged that the plaintiff was not entitled to any damage nor was the suit for damages maintainable and in any case the damages were excessive and imaginary. The usual plea of the suit being bad for want of notice under Section 80 of the Code of Civil Procedure was also token.
3. The trial court framed six issues. Under issue No. 1 it held that the court has got jurisdiction to try the suit. On issue No. 2 it was held that the defendant had the right to carry the telegraph line over the plaintiff's house. Under issue No. 3 it was held that the plaintiff had failed to prove that Jethu Ram had given any writing to the plaintiff to remove the line within 15 days. It was further held that the plaintiff did not suffer any damages and was not entitled to receive any. On issue No. 6, it was held that the notice served on the Union of India was a valid notice under Section 80, C. P. C. The Court refused the relief prayed for by the plaintiff on the ground that the plaintiff could seek relief of compensation under Section 10 and could move the District Magistrate under Section 17 of the Telegraph Act, 1885 for the removal or the alteration of the telegraph line from one part of his premises to another. The suit of the plaintiff was dismissed.
4. The plaintiff thereupon filed an appeal. The lower appellate court framed three questions for determination. On the first point it held that the civil court has got jurisdiction to try the suit. On the second point it was held that the plaintiff had suffered damages and was also entitled to recover damages in this very suit. The appeal was allowed. Suit of the plaintiff was decreed and the respondent Union of India was directed to remove the telegraph line in question from its present place and to place the said telegraph line in the direction shown by the letters YDEFO in the Amin's map papager No. 40-C over another portion of the plaintiff appellant's land and building at a height of at least 30 feet from the level of the ground in the manner proposed in the body of the judgment at its own costs. It was further ordered that if the removal was not effected within six months from the date of the judgment then the plaintiff appellant would be entitled to get the telegraph line in question removed altogether through the Court.
5. In giving its finding on point No. 1 the Court came to the conclusion that what the plaintiff desired was the removal altogether of the telegraph lines from the premises of the plaintiff. He was not seeking the removal of the telegraph line or post from one part to the other part of his premises or for the alteration of its form. It was held that the relief prayed for did not come within the purview of Section 17 of the Telegraph Act, 1885, hereinafter referred to as the Act. It was also held that a dispute regarding compensation could be decided by the District Judge under the provisions of Section 16(3) of the Act. It was further held that the damages which have been claimed in this suit did not fall within the definition of compensation as mentioned in Section 10(d) of the Act. Consequently, the damages claimed in the suit could not be claimed anywhere except in a civil court. Similarly the relief that was asked for in the suit could not be granted by the District Magistrate under Section 17 of the Act.
6. In this appeal before me learned counsel for the Union of India vehemently contended that an order passed under Section 10 of the Act for taking a telegraph line or putting a post in the premises of a person cannot be called in question in a civil suit. The right to take a telegraph line or to erect a post for the said purpose is merely a right of user and if a party in consequence sustains damages it may be awarded the same but it is not open to that party to question the right of the Central Government or the Telegraph Authority from taking the telegraph line over the property of another person. Learned counsel also contended that the only relief which a party can claim over whose land a telegraph line is taken is by way of claiming damages, if he has sustained it, by making an application under Section 16(3) of the Act and could at most pray for the removal of the telegraph line and the post to another part of his property. This prayer had to be made to the telegraph authorities and if they did not pay heed then an application could be made to the District Magistrate under the provisions of Section 17(3) of the Act and it lay in the discretion of the District Magistrate to allow or not to allow the removal or alteration of the telegraph line from one portion of the premises to another thereon. Learned counsel contended that beyond seeking these reliefs it is not even open to a party to question the taking of telegraph line over the property of any person in any civil court by means of a suit. Learned counsel also contended that the view taken by the court below about the maintainability of the suit was wrongly decided.
7. A perusal of the plaint shows that the suit was based on the enforcement of the contract, namely, the undertaking to remove the telegraph line within a period of fifteen days from the erection given by an official of the Telegraph Department. This undertaking had not been fulfilled by the Department. The telegraph line had not been removed. Repeated letters and requests fell on deaf ears. The prayer in the suit was not for the removal of the telegraph line from one portion of the premises to another. A prayer was for their removal altogether. The Act itself does not provide for any alternative mode of relief in such a case. If a party is aggrieved and seeks the removal of the telegraph wires altogether from over his premises he can seek no relief under the Act because none is provided. It is well settled that unless a statute prohibits the approach to a civil court a remedy which cannot be had under the Act can always be sought from the civil court. As indicated above, the relief sought in this case was for the removal of the telegraph wires from over the premises of the plaintiff on the ground that there was an undertaking given by an official of the Telegraph Department. The lower appellate court has gone into the question of fact as to whether the official concerned had or had not given that undertaking. It concluded on the basis of the evidence on record that Jethu Ram was an official of the Telegraph Department and had given the undertaking in writing. It was held that the undertaking was binding on the Department. If the undertaking was for removal of the telegraph wires within a period of fifteen days, presumably because it was a temporary arrangement, then on the expiry of fifteen days the Telegraph Authorities were bound to remove the telegraph line. Since they had not done so, the suit for the enforcement of the undertaking could only be instituted in a civil court for no such relief could be obtained under the Act.
8. A reference to Section 16(1) of the Act would be relevant. It states as follows :
'Section 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.' It is evident from the above that if a telegraph line is taken over, along or across the property of a person, as indicated in Section 10(d), and it is resisted or obstructed then the District Magistrate may exercise his discretion and order that the telegraph authority shall be permitted to take the line over the property of the person concerned. Two questions arise. Firstly, whether the resistance or obstruction is to be physical or a mere objection is enough. In my opinion, a resistance or obstruction may be in any form or shape, even the making of an oral objection is sufficient to invoke the provisions of Section 16(1) of the Act. Since there is a resistance or obstruction to the taking of the telegraph line the matter has to go to the District Magistrate. The District Magistrate has thereafter to exercise his discretion one way or the other. It is only when he exercises his discretion in favour of the Telegraph Department that the line can be taken over the land of the person. It is also clear that once there is obstruction or resistance the Telegraph Department has to approach the District Magistrate, for a party which is obstructing or resisting is not interested in taking the matter to the District Magistrate. Tt is the Telegraph Department which wants to take the line over the land of another. If it receives the objection or obstruction then it must seek the discretion in its favour from the District Magistrate. Sub-section (2) of Section 16 envisages that when the District Magistrate exercises the discretion in favour of the Department then any further obstruction or resistance would be deemed to constitute an offence under Section 188 of the Indian Penal Code. It, therefore, becomes clear that whenever there is the resistance or Obstruction it is the Telegraph Department which must approach the District Magistrate for orders. A similar view has been taken in the Full Bench decision of Bharat Plywood and Timber Products (P.) Ltd. v. Kerala State Electricity Board, AIR 1972 Ker 47.
9. In the present case the evidence on record makes it clear that a resistance or an obstruction was made by the plaintiff's son on behalf of the plaintiff. Instead of approaching the District Magistrate and seeking his decision in the matter, the official of the Telegraph Department got over the resistance by persuading the plaintiff's son to take the line over the plaintiff's house on the assurance that the telegraph line would be removed within fifteen days. In this context the undertaking assumes importance. The finding of the court below that such an undertaking was given in writing thus lends support to the plaintiff's case that there was a resistance to the laying of the telegraph line and that it was got over for the time being on the assurance given by the official of the Telegraph Department. It would thus be seen that although there was a duty cast on the Telegraph Department to seek the decision of the District Magistrate under the provisions of Section 16(1) of the Act it was not so done. Consequently, the plaintiff had no other option but to seek the relief from the civil court.
10. The question of approaching the District Magistrate under Section 17(3) did not arise in the present case for the plaintiff was not seeking the removal of the telegraph line from one portion of his premises to another nor was he seeking an alteration in the lay-out of the telegraph lines. Since there is nothing in Section 17 to provide a relief in a case like the present the plaintiff had no other option but to seek relief from the civil court. In the case of Governor General in Council v. Achhru Ram, AIR 1951 Punj 357, a learned Single Judge had considered a similar case and the provisions of Section 17 of the Act, It was held there that Section 17 of the Act does not provide any machinery for the settlement of a dispute where the plaintiff claims that the telegraph line should be removed altogether. It was also held therein that the jurisdiction of the civil Court is not impliedly barred by Section 17 of the Act for there was no other provision of the Act expressly or impliedly barring the jurisdiction of the court. I am in respectful agreement with the view taken in the above case. In my opinion, the court below had taken a correct decision on the question of law as regards the maintainability of the suit in the present case.
11. Learned counsel for the appellant then contended that the court below was in error in granting the relief in regard to damages claimed. As indicated above, the court below has held that the plaintiff was entitled to damages at the rate of Rs, 10 per month and he had claimed damages for a period of three years and a decree was passed in the sum of Rs. 360 only. Learned counsel contended that a relief for damages could be claimed under Section 16(3) of the Act, provided one had sustained damages under Section 10(d) of the Act. Section 10(d) uses the expression 'compensasion' and not 'damages'. It further stipulates that full compensation is to be paid by the Department to the person interested, who has sustained any damage. Section 16(3) stipulates that in case there is a dispute as regards the sufficiency of the compensation it is to be decided by the District Judge. Admittedly, in the present case no compensation had been given by the Department nor any dispute had been taken before the District Judge, but that would not preclude the plaintiff to prefer any claim or get a decree for damages. In the present case damages were claimed on the ground that the plaintiff was unable to make use of his roof or to raise constructions on his existing building. The Court below has considered the rate of damages claimed and the evidence on this point and has concluded that he was entitled to it. The court below was not considering what compensation was liable to be paid to the plaintiff. Learned counsel for the appellant had contended that there would be not much of difference in the word of 'compensation' and 'damages' in the present case. Compensation could be decided by the Department and the District Judge but they had no right to decide any question of damages. The word 'compensation' would embrace in its purview any actual loss suffered by a party. For example, if trees had to be cut or certain structure had to be altered or demolished, in that case a question of paying compensation would arise but the question as to what loss a party would suffer in case he was prevented from making any constructions or using the roof would not come within the meaning of the word 'compensation'. It would come under the wider definition of the word 'damages'. A further consideration would be that if the subject-matter of the suit would not be barred under any provision of the Act then a claim for damages would also not be barred under any provision of the Act. This part of the claim would also be entertained by the civil court trying the suit I, therefore, see no error in the view taken by the court below in awarding damages in the sum of Rs. 360.
12. In my opinion, the decree passed by the court below is eminently just and correct. No exception can be taken to it. No other point was argued.
13. In the result, therefore, the appeal fails and is dismissed with costs.