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Kerala State Electricity Board Vs. Ulahannan Markose - Court Judgment

LegalCrystal Citation
SubjectElectricity
CourtSupreme Court of India
Decided On
Case NumberCivil Appeal No. 471 of 1966
Judge
Reported in1969(1)LC259(SC)
ActsIndian Electricity Act, 1960; Indian Telegraph Act, 1885 - Sections 10, 13, 16 and 16(3); Code of Civil Procedure (CPC) - Sections 115
AppellantKerala State Electricity Board
RespondentUlahannan Markose
DispositionAppeal dismissed
Cases ReferredBabu v. Kamal
Excerpt:
.....it is the correctional needs of the perpetrator that are offered to justify a sentence. sometimes, the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. inevitably these considerations cause a departure from just desserts as the basis of punishment and create cases of apparent injustice that are serious and widespread. proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. even now for a single grave infraction drastic sentences are imposed. anything less than a penalty of greatest severity for any serious crime is though then to be a measure of toleration that is unwarranted and unwise. but in fact, quite apart from..........kottayam under section 51 of the indian electricity act (act no. 9 of 1960) and sec. 16 of the indian telegraph act (act no. 13 of 3885). the respondent alleged therein that the appellant entered into his plot of land and felled coconut trees, rubber trees, pepper vines etc. the appellant paid rs. 1765/- as compensation for destroying the trees. the compensation was not adequate and the respondent therefore demanded a further sum of rs. 6500/- as compensation for the damage. the appellate controverted the allegation of the respondent. it was said that adequate compensation was paid to the respondent, who accepted the same without protest or objection at the time of payment. the contention of the appellant was that the respondent did not dispute the adequacy of compensation at the.....
Judgment:

Ramaswami, J.

1. This appeal is brought by special leave from the judgment of the Kerala High Court dated 20th January, 1964 in CR.P. No. 112 of 1962 arising out of the judgment of the District Court, Kottayam in O. P. No. 261 of 1961 dated 7th August, 1962.

2. On 13th December, 1961, the respondent filed a petition being O.P. No. 261 of 1961 in the District Court, Kottayam under Section 51 of the Indian Electricity Act (Act No. 9 of 1960) and sec. 16 of the Indian Telegraph Act (Act No. 13 of 3885). The respondent alleged therein that the appellant entered into his plot of land and felled coconut trees, rubber trees, pepper vines etc. The appellant paid Rs. 1765/- as compensation for destroying the trees. The compensation was not adequate and the respondent therefore demanded a further sum of Rs. 6500/- as compensation for the damage. The appellate controverted the allegation of the respondent. It was said that adequate compensation was paid to the respondent, who accepted the same without protest or objection at the time of payment. The contention of the appellant was that the respondent did not dispute the adequacy of compensation at the relevant time and so the present claim was belated and time barred. By his judgment dated 7th June, 1962 the District Judge dismissed the objection of the respondent holding that if at the time of payment there was no dispute it was not open to either party to commence a dispute at a later date and apply to the Court for determination of such a dispute. Against this judgment the respondent filed a Civil Revision petition being. C R. P. No. 1122 of 1962 in the Kerala High Court under Section 115 of the CPC. By his judgment dated 20th January, 1964 Vaidialiogam. J allowed the revision petition and held that the respondent was entitled to additionly, compensation of Rs. 6500/-.

3. Section 42 of the Electricity Supply Act, 1948 (No. 54of 1943) states

'Notwithstanding anything contained in Section 12 to 16 and 18 and 19 of the Indian Electricity Act, 1910, but without prejudice to the requirements of Section 17 of that Act where-provision in such behalf is made in a sanctioned scheme, the Board shall have, for the placing of any wires, poles, wall brackets, stays, apparatus and appliances for the transmission and distribution of electricity, or for the transmission of telegraphic or telephonic communications necessary for the proper co-ordination of the works of the Board, all the powers which the telegraph authority possesses under Part III of the Indian Telegraph Act, 1885 with regard to a telegraph established or maintained by the Government or to be so established or maintained ;

Provided that where a sanctioned scheme does not make such provision as aforesaid, all the provisions of sections 12 to 19 of the first mentioned Act shall apply to the works of the Board'.

Section 10 of the Indian Telegraph Act, 1885 (Act No. 13 of 1885) provides:

'10. The telegraph authority may, from time to time, place and maintain a telegraph line under, over, along or across, and posts in or upon, any immoveable property:

Provided that-

x x xx (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 for any damage sustained by them by reason of the exercise of those powers'.

Section 18(3) states:

'If any dispute arises concerning the sufficiency of the compensation to be paid under section, clause (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within those jurisdiction the property is situate, be determined by him'.

4. It was argued on behalf of the appellant that the dispute contemplated by section 16(3) of the Indian Telegraph Act was a dispute which should have arisen before the telegraph authority at the time of payment and if no dispute was raised at the time of payment it was not open to the respondent to file an application under Section 16(3). In our opinion, there is no justification for this argument. There is nothing in the language of Section 6(3) to suggest that the dispute about the sufficiency of compensation must be raised at the time of payment. On the other hand, there is no restriction of limitation in the section as to when the dispute should have arisen. The only condition therefore for the competence of an application under Section 16(3) is that the dispute should have arisen at any time before the date of filing of the application. On behalf of the appellant stress was laid on expression 'to be paid' in Section 16(3) and it was said that the compensation contemplated in the sub-section was not the compensation actually paid but it was the compensation that was to be paid in the future. It was argued that the dispute regarding such amount to be paid in future must have arisen earlier and it could therefore arise only at the time of payment by the telegraph authority. We do not think that this argument is right. The expression 'to be paid' does not necessarily mean that the amount should be paid in future. The expression only means compensation 'payable' under Section 10(b) We are hence unable to accept the argument of the appellant that by accepting the compensation amount without protest the respondent has lost his right of filing the application under Section 16(3). It was also contended that unless there was a protest in writing by the respondent he was not entitled to apply to the court under Section 16 of the Act for enhanced compensation. In our opinion, there is no substance in this argument. There is nothing in the language or in the context of Section 10 or Section 16 of the Telegraph Act to suggest that written protest should be made by the recipient and we see no reason for putting any such restriction on the language of the statute.

5. It was also said that the High Court was not entitled to interfere with the judgment of the District Judge in this case under Section 115 of the CPC. In our opinion, there is no warrant for this argument. As we have already pointed out the District Judge dismissed the application of the respondent on an erroneous construction of Section 10(d) of the Telegraph Act. In other words, the District Judge refused to exercise the jurisdiction vested in him because of the erroneous construction placed upon the language of Section 10(d) of the Telegraph Act. The case therefore will fall within Sub-section (a) or Sub-section (b) of Section 115 of the CPC and the High Court was competent to interfere with the order of the District Judge and set it aside. It was pointed out by the Judicial Committee in Joy Chand La I Babu v. Kamal aha Chaua-hury and Ors. (1) that although error in a decision of a subordinate court does not by itself involve that the subordinate court has acted illegally or with material irregularity so as to justify the interference by the High Court in revision under Sub-section (c) of Section 115 of the CPC, nevertheless, if the erroneous decision results in the subordinate court exercising its jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested, a cape for revision arises under Sub-section (a) or Sub-section (b) of Section 115 of the CPC and Sub-section (c) can be ignored.

For these reasons we hold that there is no merit in this appeal which is accordingly dismissed with costs.


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