1. This is a civil revision petition against an order of the learned Additional district Judge, Coimbatore, dismissing O. P. 61 of 1969 filed under S. 16(3) of the Indian Telegraph Act, 13 of 1885, for payment of a sum of Rs. 95171-50 as compensation for the wattle trees and plants cut and removed by the Madras State Electricity Board. The facts of the case are as follows :-An extent of 18.34 acres in S. No. 9/1 of Mulligoor village was acquired for the site of the Emerald Dam and the Kundah project. Though the notification for the acquisition of the site under Sec. 4(1) of the Land Acquisition Act, was published only on 1-5-1957, the Madras State Electricity Board (to be referred hereinafter as the Board) entered the lands even in 1956 and cut and removed the trees thereon and sold them away in auction. 19002 wattle trees and plants of various girths and sizes appear to have been this cut and sold away by the respondent-Board. Exs. A-1 to A-7 are the receipts and Ex. A-8 is the certified copy of a receipt issued by the Board for the trees thus cut and carried away. Subsequent to the notification, 10672 trees and plants were, according to the Commissioner who was appointed in a suit to which reference will be made hereafter, standing on the land.
2. On 6-6-1956 the department wrote Ex. A-12 to the revision petitioner in reply to his letter that the Collector had been addressed and orders were awaited fixing the compensation for the wattle trees and plants which had been cut and carried away.
3. On 10-6-1957, the Land Acquisition Officer passed an award fixing the compensation payable for the lands and some other trees which were standing on the land when the notification under S. 4(1) of the Land Acquisition Act was published. But for the wattle trees and plants standing on the lands prior to the date of the notification which had been cut and removed, no compensation was awarded by the Land Acquisition Officer and the claimant was asked to look to the Electricity Board for compensation for the trees cut down by the respondent-board. Therefore, the claimant approached the Board for payment of compensation. By Ex. A.16 dated 2-9-1957, the Board informed the revision petitioner that Government Orders were awaited for payment of compensation for wattle trees and plants. But no compensation was made.
4. Against the award of the Land Acquisition Officer a reference was made under S. 18 of the Land Acquisition Act to the Sub Court of Ootacamund, and was taken on file as O. P. 50 of 1957. In disposing of O. P. 50 of 1957, the learned Subordinate Judge, Ootacamund, made some observations in paragraph 26 of his order which may give rise to an impression that compensation payable for the wattle trees and plants standing on the land before the notification under S. 4(1) of the Land Acquisition Act was also considered. In fact, this was not done. This is made clear by this court in its judgment in A. S. 20 and 61 of 1960 dated 2-5-1962. In O. P. 50 of 1957, the Commissioner appointed by the Sub court to inspect the land acquired had reported that there were 10672 wattle trees or plants on the land at the time of the notification. However, he has not filed any report regarding the trees that had been cut and removed prior to the date of the notification. Therefore, it is abundantly clear that compensation for the trees cut by the Board prior to the date of the notification under S. 4(1) of the Land Acquisition Act was not awarded either by the Land Acquisition Officer or by the Sub Court. There was no reference to the Sub Court regarding the compensation payable for the trees cut and carried away by the respondent Board prior to the notification under S. 4(1) of the Land Acquisition Act and, therefore, the Sub court was not even competent to go into that question.
5. On 10-10-1960 the Board informed the claimant by Ex. A.26 that the payment of compensation referred to was under consideration of the Board. As no compensation was paid for the trees cut by the respondent-Board, the revision petitioner filed O. S. 177 of 1963 on the file of the Sub Court, Ootacamund. However, that suit was ill-advised because the prayer in the suit was for rendition of an account of the wattle trees cut or an injunction directing the defendant Board to appoint an arbitrator. Such a suit is obviously not maintainable and was, therefore, rightly dismissed by the learned Subordinate Judge. An appeal, A. S. 274 of 1965, preferred to the District Court was also dismissed on 14-2-1967. While dismissing the appeal the learned District Judge and recommended the payment of compensation. S. A. 1014 of 1968 preferred against the judgment and decree in the aforesaid A. S. 274 of 1965 was dismissed by this court on 7-4-1962 (sic). However, this court did not say anything against the observation of the learned District Judge recommending the payment of compensation.
6. On 25-2-1969 the revision petitioner filed O. P. 61 of 1969 in the District Court, Coimbatore, under S. 16(3) of the Indian Telegraph Act, 1885, for compensation. The learned District Judge found that the revision petitioner is entitled to compensation and fixed the compensation payable to him at Rupees 33,715. However, the learned District Judge dismissed the O. P. Because he was of the opinion that the finding in O. S. 177 of 1963 on the file of the Sub Court, Ootacamund, terminating in S. A. 1014 of 1968, would operate as res judicata against the petitioner. He also came to the conclusion that the petition was barred by limitation.
7. I am of the opinion that this revision petition has to be dismissed, but not for the reasons given by the learned Additional District Judge. S. 16(3) of the Indian Telegraph Act can be invoked only if any dispute arise concerning the sufficiency of the compensation to be paid under S. 10(d) of the Telegraph Act. No compensation has been fixed yet by the Board. The mater seems to be still under consideration. Therefore, no dispute has yet arisen regarding the sufficiency of the compensation to be paid. I hope and trust that this matter, which has been pending for a long time, will be taken up by the Board at least hereafter for the purpose of fixing the compensation payable to the revision petitioner in accordance with the provisions of S. 10(d) of the Telegraph Act, which lays down that in the exercise of the powers conferred by Sec. 10 of the Act, 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 Cl. (c), shall pay full compensation to all persons interested for any damage sustained by then by reason of the exercise of those powers. By reason of the provisions of S. 51 of the Indian Electricity Act 9 of 1910, the provisions of the Indian Telegraph Act, 1885 are applicable to the instant case. Therefore, the respondent-Board is directed to fix the compensation payable to the revision petitioner and pay the same without any further delay. In the event of the Board failing to do so, the revision petitioner is entitled to invoke the writ jurisdiction of this court. Only after such fixation of the fair amount payable as compensation, the petitioner is, if he feels, aggrieved about the sufficiency of the compensation, entitled to invoke the jurisdiction of the District Court under S. 16(3) of the Telegraph Act and not till then. If, after such compensation is fixed by the Board, the petitioner feels aggrieved about the sufficiency of the same and chooses to invoke the jurisdiction of the District Court under Section 16(3) of the Telegraph Act, the cause of action on which the suit was instituted. The question of res judicata my not then, arise. But the question of respondent judicata is left open as it is unnecessary to go into that question in these proceedings.
8. Whether a petition under S. 16(3) of the Indian telegraph Act, filed after the compensation is fixed will be barred by limitation, is not a matter for consideration in these proceedings. As observed already, the petition before the District Court under S. 16(3) of the Telegraph Act at this stage is not maintainable as it is premature. The civil revision petition is dismissed. No costs.
9. Revision dismissed.