B.K. Mukherjea, J.
1. This is an appeal on behalf of the Commissioner of Barrackpore Municipality who, as plaintiff, commenced the suit out of which this appeal arises for recovery of a sum of Rs. 82, annas odd, as rent or in the alternative as damages for use and occupation against the Barrackpore Electric Supply Corporation under the following circumstances: The defendant company is a licensee under the Electricity Act, who have been granted a license to supply energy and lay down and place electric supply lines for conveyance and transmission of energy within a specified area. The plaintiff's case is that the defendant fixed a number of poles on the roadside lands of the plaintiff Municipality, for the purpose of supplying electrical energy to provide persons owning houses and mills close to the roads. The company is therefore in law and equity bound to pay rent or in the alternative damages for use and occupation of the plaintiff's lands. The rent or damages are claimed at the rate of Re. 1 per pole per annum which the plaintiff says, is the usual rate in other municipalities. The defence of the Electric Supply Corporation is that these poles were fixed on public roads which were dedicated to public use and for which no consent of the plaintiff is necessary under Section 12, Electricity Act, and as the work was erected under statutory authority, no rent or compensation is payable in law. Both the Courts below have accepted the defendant's contention and dismissed the plaintiff's suit.
2. Mr. Gupta, who appears for the appellant Municipality in this appeal, has assailed the propriety of the decision on two grounds. It has been contended in the first place, that there is no evidence here that the roadside lands upon which the poles have been fixed were dedicated to public use. In the second place, it is said that even if the lands were so dedicated, the licensee is bound to pay rent or compensation for the use of the plaintiff's lands under the general law, even though under Section 12, Electricity Act, the consent of the local authority is not necessary to enable the licensee to fix the poles. Now, Section 12, Electricity Act, is the authorizing section, and Sub-section (1) gives power to the licensee inter alia to open and break up soil and pavements of any street, Railway or Tramway to lay down and place electric supply lines and do all other acts necessary for the supply of energy. This general power is limited by the clauses immediately following: Sub-s. 2 lays down that the licensee would have no right to place lines or works in, through or against any building, or on, or under any land not dedicated to public use without the consent of the local authority, owner or occupier, as the case may be, and upon this provision again an exception has been engrafted by the first proviso which says that a support, stay or strut may be fixed on any building or land notwithstanding the objection of the owner or occupier, if the District Magistrate or the Commissioner of Police so directs. The support, stay or strut so fixed may be removed by virtue of a similar order and Sub-section 2 imposes a duty on the Magistrate or the Commissioner of Police to fix the amount of compensation or annual rent as he considers proper where an order is passed under Sub-section 2. Another limitation on the powers conferred by Sub-section 1 of S.12 is imposed by subs. 5, but we are not concerned with this provision in the present case.
3. The result therefore is that in order to enable the licensee to place lines or works in lands dedicated to public use, no consent is necessary. Consent is necessary in all other cases, the only exception being what is mentioned in the first Proviso to Sub-section 2. As regards the first point of Mr. Gupta, it may be said at once that it was nowhere stated within the four corners of the plaint that the roadside lands upon which the poles were fixed were not dedicated to public use. The point was not raised at any stage in either of the Courts below and on the other hand Mr. Gupta's client throughout proceeded on the footing that these were public streets, the soil of which vested in the Municipality under Section 95, Bengal Municipal Act. The public have a right of way in all public streets and they have their origin in dedication, either express or implied. This point, therefore, cannot be seriously pressed. Mr. Gupta's main argument, however, is that even if no consent of the local authority is necessary in such cases, that does not mean that no compensation is payable for the use of such lands. A right to compensation can be claimed by the trustees who hold the lands on behalf of the public under the general law irrespective of the provisions of the Electricity Act and as this right has not been expressly taken away by the Act there is no reason why the Court should not enforce it. In support of this contention Mr. Gupta relies upon the case in Attorney General v. De Keyaser's Royal Hotel Ltd. (1920) A C 608. In that case, the Crown purporting to act under the Defence of Realm Regulations passed during the German War took possession of a hotel for the purpose of housing certain members of the Royal Plying Corps. As no compensation was paid to the owners, they lodged a petition of right claiming rent for the use and occupation of the premises or in the alternative compensation under the Defence Act of 1842. It was held by the House of Lords that the suppliants were not entitled to a rent apart from the Statute as there was no consensus on which to found implied contract, but they were entitled to compensation under the Defence Act of 1842. Lord Atkinson in course of his judgment said that 'neither public safety nor the defence of the Realm requires that the Crown should be relieved of a legal liability to pay for the property it takes from one of its subjects,' and quoted the observation of Bowen, L.J. in London and North Western Railway Co. v. Evans (1893) 1 Ch 16, that:
The Legislature cannot fairly be supposed to intend in the absence of clear words showing such intention that one man's property shall be confiscated for the benefit of others or of the public without any compensation being provided for him in respect of what is taken compulsorily from him. Parliament in its omnipotence can, of course, override or disregard this ordinary principle if it seems fit to do so, but it is not likely that it would be found disregarding it without plain expressions of such a purpose.
4. This principle, in my opinion, has no application to the facts of the present case. In this case there is no question of confiscation, much less of any injury to any private property and the lands upon which the poles are fixed are admittedly public lands. The Electricity Act, as I have already stated, does not authorize a licensee to place any work on any private lands without the consent of the owner or occupier. This consent may be given on such terms regarding payment of rent or compensation as the parties might agree upon. In exceptional cases where the licensee can proceed without the consent of the owner, provision has been made for rent or compensation which is to be fixed by the Magistrate or the Commissioner of Police. In the case of lands dedicated to public use the Legislature clearly intended that the licensee who has been given license apparently for the benefit of the public, would be able to place its works without the consent of the authorities who are in charge of such lands and without paying any compensation for the same. In the interest of the public, if it considers necessary, the Local Government while granting license might insert a term or condition in it regarding the payment of rent or compensation for the use of such lands and in such cases undoubtedly a duty to pay rent or compensation will arise. In my opinion, it depends entirely upon the Local Government to decide as to whether the licensee would have to pay for the use of lands dedicated to public use. The second contention of Mr. Gupta, therefore, fails. I may point out here, though it is not necessary in view of my decision on the points mentioned above, that the claim for rent is obviously untenable having regard to the fact that there is no contract between the parties on which alone such claim may be founded. As for compensation the claim being admittedly for a sum less than Rs. 500 a second appeal is barred under Section 102, Civil P.C. The result is that the appeal is dismissed with costs: hearing fee being assessed at two gold mohurs.