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Sm. Binapani Basu Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.O. No. 3003 of 1982
Judge
Reported inAIR1984Cal258,87CWN520
ActsTelegraph Act, 1885 - Sections 10 and 16(3)
AppellantSm. Binapani Basu
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateP.K. Dutt and ;Arun Kr. Roy, Advs.
Respondent AdvocateMalay Kr. Basu and ;Qudrat-E-Kabir, Advs.
DispositionRevision allowed
Excerpt:
- .....particular, the pleadings of the parties it appears to us that suchan observation was made by the learneddistrict judge -in a casual manner and noton consideration of the pleadings and theevidence adduced. he appears to have overlooked the admitted position. in para 7 ofthe application there is a clear averment bythe applicant that the offending telephonewire was being drawn over the applicant'shouse and the wire was being set up acrossthe verandah of that house. this positivestatement in para 7 has neither been deniednor controverted by respondent 1 in theirobjection. therefore, it appears clear to usthat in the present case there is no disputeover the fact that in giving connection tothe subscriber, the telephone authoritieswere setting up and drawing the wire acrossthe verandah of.....
Judgment:

Anil K. Sen, J.

1. An application under Section 16(3), Telegraph Act, 1885 (hereinafter referred to as the Act) which had been registered as Misc. Case No. 103 of 1980 was dismissed by the learned District Judge, Howrah by his order dated August 28, 1982. It was so dismissed not on merits but on the technical ground that such an application was not maintainable in law. Feeling aggrieved, the applicant has moved the present revisional application challenging the said order. The application is being heard on contest by the respondent the Union of India.

2. In laying her claim for compensation under Section 16(3) of the Act, the applicantmade out a case that the telegraph authorities were engaged in pulling and connecting telephone wire from a telephone post situate on the south of the dwelling house of the applicant at Andul Daspara Road to a brick built piller set up for the said purpose at the subscriber's premises on an adjoining plot on August 26, 1977. The said wire was being drawn and connected 'over, in, upon and across the private path/passage and over the eastern verandah' of the applicant's house. The applicant's further case was that there was gross neglect on the part of the telephone authorities in doing the said act when they failed to take proper caution to see whether the pillar that had been set up by the subscriber, was strong enough to sustain the pull of the wire. It was alleged that as a matter of fact a high pillar was wrongfully and illegally built upon the boundary wall of the subscriber without any loadbearing foundation in spite of objections on the part of the applicant. While it was being so done, according to the applicant, the piller gave way, fell upon the applicant's house and damaged her verandah. She having suffered damage in that process, she claimed appropriate damages from the telegraph authorities of respondent 1. When the telegraph authorities refused to compensate her, she filed the application under Section 16(3) of the Act out of which the present revisional application arises.

3. The application was contested by respondent 1 the Union of India. The damage sustained by the applicant could not be denied. But Union of India took the stand that the damage which the applicant had suffered was due to neglect on the part of the subscriber when the subscriber set up a pillar not founded on any sufficiently strong foundation. According to the Union of India, therefore, the damage, if any, was to be compensated by the subscriber and not the telegraph authorities. We may point out at this stage that the claim of the applicant that the telephone wire for the subscriber was being placed over the applicant's house, was not disputed as a fact though respondent 1 took the stand that on that particular date and time there was no drawing of any line or making of any construction by the telegraph authorities; according to respondent I, none of their men was involved in the act resulting in the accident on the date of occurrence.

4. Parties adduced evidence both oral and documentary. The learned District Judge on consideration of evidence so adduced overruled the defence that men of the telephone authorities were, not involved in the act resulting in the accident. He found that the telephone authorities knew how the pillar was' raised and in spite of the fact that the pillar was not secure enough to hold the wire, their men were drawing the line therefrom for giving connection which resulted in that accident. Having overruled that defence, the learned District Judge proceeded to consider whether the claim of compensation as made can be entertained under the provisions of Section 16(3) of the Act. On this point the learned District Judge, however, took the view that the said provision does not authorise him to entertain any claim of compensation for damages suffered due to negligence. He took the view that under this provision he can award compensation for any toss and damage resulting from an act authorised and contemplated by Section 10 and not from any tortious act since such art act is not authorised. Incidentally, the learned District Judge further observed, contrary to the admitted position, that the house of the applicant was not being used in doing any act enumerated in Section 10 of the Act. In that view, the application has been dismissed on the ground that it was net maintainable.

5. Mr. Dutt appearing in support of the revisional application has strongly contended that the learned District Judge materially misread the scope of Section 16(3) of the Act in refusing to entertain the application when he held that a claim of compensation based on an allegation of tort would not come within the purview of the said provision. Next it has been contended by Mr. Dutt that there is an error apparent on the face of the record when the learned District Judge thought that the house of the applicant was not being used in any manner contemplated under Section 10 for giving connection to the subscriber in the present case. According to Mr. Dutt on the finding of the learned District Judge, the applicant having suffered damages at the hands of mesa from telephone authorities in the process of their executing an act contemplated by Section 10, he should have gone into the merits and assessed the compensation. The points thus raised by Mr. Dutt have been seriously contested by Mr. Basu appearing on behalf of the Union of India.

6. Before we proceed to consider the question of law involving the scope of Section 16(3) of the Act, we should first of allresolve the dispute on a question of factwhich arises from an incidental observationof the learned District Judge that the houseof the applicant was not being used fordoing any act enumerated in Section 10 ofthe Act. On a careful review of the materials on record and in particular, the pleadings of the parties it appears to us that suchan observation was made by the learnedDistrict Judge -in a casual manner and noton consideration of the pleadings and theevidence adduced. He appears to have overlooked the admitted position. In para 7 ofthe application there is a clear averment bythe applicant that the offending telephonewire was being drawn over the applicant'shouse and the wire was being set up acrossthe verandah of that house. This positivestatement in para 7 has neither been deniednor controverted by respondent 1 in theirobjection. Therefore, it appears clear to usthat in the present case there is no disputeover the fact that in giving connection tothe subscriber, the telephone authoritieswere setting up and drawing the wire acrossthe verandah of the applicant's house forconnecting it with the post at the AndulDespara Road. This the telephone authorities would not have been entitled to doexcept in exercise of their powers under Section 10 of the Act. Hence it can safely beconcluded that the accident resulting indamages to the applicant occurred in courseof execution of an act contemplated by andIn exercise of powers under Section 10 of the Actinvolving the house of the applicant.

7. Next we proceed to consider the other important question of Jaw as to whether a claim for damages due to tortious act can be entertained in a proceeding under Section 16(3) of the Act. To appreciate the actual scope of this provision we have to read it along with Section 10 of the Act; the material part of Section 10 reads as follows :

'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 immovable property:

Provided that-

(a) to (c) * * *

(d) in 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 personinterested for any damage sustained by them by reason of the exercise of those powers.' Section 16(3) provides that 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.

8. On the terms of Section 16(3), the dispute must necessarily relate to compensation payable under Section 10(d). It is new well settled that a total denial of liability comes within the scope of a dispute as to sufficiency. The point for consideration is whether: the compensation contemplated by Section 10(d) is limited only for the acts done in exercise of powers under Section 10 or for damages of any kind suffered in course of execution of such an act. On a careful review of aforesaid two provisions we are unable to support the limited interpretation adopted by the learned District Judge. Sec-tion 10, no, doubt, gives legal sanction for committing trespass which the telegraph authorities would not have been entitled to commit but for such sanction. Such trespass again may result in some damages. But Clause (6) of Section 10 does not limit the compensation to such damage only. It speaks of any damage sustained by reason of exercise of such powers. The legislature intentienally rendered the scope wider to include compensation for any damages sustained either by the act authorised or in course of its execution. This clause clearly indicates that in doing any act within the sanction of Section 10 the telegraph authority must take the caution of causing as little damage as possible. The provision goes further on to say that when such an act is done, the authorities shall pay full compensation for any damage sustained by reason of exercise of such powers. Such damage, in our view, covers not only the damage for the trespass itself but any damage that may be sustained due to any tortious action on the part of the telegraph authorities while exercising their powers under Section 10. The tortious act is not an independent act; it arises from negligent exercise of powers under Section 10 involving the immovable property in respect of which such power is being exercised. In our considered opinion, there is no reason to limit the meaning of the term 'any damage' to damages because of the trespass only and not because of the neglect or the :tortious act of the authorities while exercising powers under Section 10.

9. Such being the position in law, thepresent claim, in cur view, was clearly entertainable by the learned District Judge under Section 16(3) of the Act He in refusing to entertain the same, refused to exercise a jurisdiction vested in him by the said provision on a clear misreading of the material provisions. Since the merit of the claim has not been gone into, we must set aside the order impugned and remand the proceeding back to the learned District Judge for adjudication of the claim on its merits and we direct accordingly. Let the application now be disposed of by the learned District Judge as early as possible.

10. The revisional application is, therefore, allowed on contest with costs, hearing fee being assessed at 10 (ten) gold mohurs.

11. Let this order be communicated to the Court below.

S.N. Sanyal, J.

12. I agree.


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