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2010 Supreme(Bom) 1251
2011(2) ALL MR 864
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
D. G. KARTIK, J.
Mrs. Melba Lima Brito & Anr.
Vs.
Government of Goa, through its Chief Secretary &Anr.
First Appeal No.135 of 2001
Decided on : 3rd September, 2010.
Mr. J. P. MULGAONKAR, Advocate for the Appellants.
Mr. AMEY KAKODKAR, Addl. GOVT. Advocate for the Respondents.
Headnote:Electricity Act, 1910 - Section 19-Suit for damages-Limitation-Damage caused due to wrongful erection of tower on land-Officer of Electricity Department not stated date on which tower erected on claimant’s land-Claimants noticed-Statement not contradicted by Electricity Department Suit filed within 3 years of erection of tower not barred by limitation The date or even the year in which the work through the suit property was commenced has not been mentioned by DW 1 Shri. Dessai. In fact, the deposition itself makes it clear that the work of laying the line continued for about 8 years. During the period of 8 years, the line was laid through several properties. The date on which the tower was erected on the appellants’ land is also not stated by the defendants’ witness Shri. Dessai, nor is it stated in the written statement filed by the defendants. In the plaint the appellants have stated that the appellants noticed that the work of construction of tower and laying the electric line was noticed by them for the first time in April, 1997. The date or at least the month in which the respondents entered into the suit property of the appellants, the date on which they dug the pits and erected the tower is within the special knowledge of the respondents. Under Section 106 of the Indian Evidence Act, when any fact is specifically within the knowledge of any person, the burden of proving that fact is upon him. The date or month of erection of the tower by the respondents in the appellants’ property being within the special knowledge of the respondents, the burden of providing the entry and erection of the tower in the appellants’ land was on them. In any event, the case of the appellants that they noticed erection of a tower in their property for the first time in April, 1997 is not contradicted by the respondents in any manner. Consequently, the trial Court ought to have held that the work of erection of electric tower in the appellants’ property was carried out in or about April, 1997. So viewed, the suit filed in the year 1997 was filed within 3 years of the erection of the tower and laying of the electric line through the appellants’ property.
Electricity Act, 1910 - Section 19-Telegraph Act, 1885-Section 10-Suit for damages-Damage caused due to wrongful erection of tower on plaintiff’s land-Restrictions on use of land over which electric lines pass-For such damage, detriment or inconvenience, owner of land entitled to a compensation under Section 19 of Act, 1910-Similar are provisions of Telegraph Act, 1885.-In the present case, DW 1 Mr. Dessai, in his deposition has admitted that one tower ad measuring 4.5 x 4.5 has been placed on the land of the appellants. He has not specified what are the dimensions of the tower and the land occupied by it. He has also admitted that wires have been laid over an area of 100 metres through the land of the appellants. It is the case of the appellants that this has caused damage to their property. Consequently, the appellants are entitled to compensation for the damages caused. If a portion of a property of a person is occupied by an electric tower, the owner would not be able to use the land occupied by the tower. Similarly, there will be restrictions on the use of the land over which the electric lines pass. He would be required to maintain certain minimum distance between the electric line and the roof of a building or structure to be constructed underneath. There would be height restrictions on the structures to be raised underneath. In some cases the owner may not be entitled to construct a building at all. For this damage, detriment or inconvenience he would be entitled to a compensation under Section 19 of the Indian Penal Act, 1910. Similar are the provisions of the Indian Telegraph Act, 1885.
Electricity Act, 1910 - Section 52-Civil Procedure Code, 1908-Section 9-Suit for compensation-Damage to property-Caused by Electricity Department-Jurisdiction of Civil Court to entertain and try such suit-Not ousted by previsions of Section 52 of Act, 1910.-The law appears to be well settled that Section 52 of the Act, which provides for arbitration does not take away the jurisdiction of a Civil Court to entertain and try a suit relating to damages or compensation on account of damage caused to the property of a person by the licensee while laying down the electric line through the property of the person. Consequently, the contention that the Civil Court had no jurisdiction to entertain and try the suit has to be rejected.
Electricity Act, 1910 - Sections 12, 51 and 52 - Indian Telegraph Act, 1885, Section 10 - Appeal against judgment and order dated, 5.5.2001 of trial Court dismissing appellants’ suit for compensation/damages for wrongful use/encroachment on their property - Contention, respondents having no authority to enter upon suit property owned by appellants, encroached upon it and laid electric lines, without their consent and without acquiring it - A suit for damages against respondents/ licensee for laying high power transmission lines through appellant’s property not barred by any of provisions of Act or Telegraph Act, 1885 - Held - Section 52 of Act, 1910 not takes away jurisdiction of a Civil Court to entertain and try such suits - Claim for damages for a period of 3 years immediately preceding date of suit not barred by limitation - Continuous damage suffered by appellants - Trial Court not determined quantum of loss, damages detriment or inconvenience caused or suffered by appellants and not recorded any finding on aforesaid aspects - Impugned judgment and order set aside - Appellants entitled for compensation for loss or damage suffered by them - Matter remanded to trial Court only for purpose of determination of compensation - Appeal partly allowed.
This appeal is directed against the judgment and order dated 5th May, 2001 passed by the Civil Judge. Sr. Division. Panaji dismissing the appellants' suit (Special Civil Suit No. 180/97/B) for compensation/ damages for wrongful use/encroachment on their property.
2. The appellants are owners of a landed property known as "BONOBO" situated within the limits of Village Panchayat of Old Goa-Baiguinim, Sub-District of Tiswadi Taluka, State of Goa. The said property appears to have been surveyed under survey No.20/1 of Village Baiguinim (hereinafter, referred to as "the suit property"). According to the appellants, they used to visit the suit property occasionally. In or about April, 1997, the appellants noticed that the respondent No.2 (Superintending Engineer, Electricity Department, Government of Goa), had started erecting 110 KV High Tension Line in the suit property without the consent and authority of the appellants. According to the appellants, the erection of a tower for the purpose of laying of an electric line and the work of laying of the electric line was being done in the suit property without their permission and without acquiring it. According to the appellants, the respondents had no authority to enter upon the suit property. encroach upon it and lay the electric lines, without their consent and/or without acquiring their property. However, since the work was completed and the electric line was laid Without their consent and without acquiring it, the appellants filed the suit only for damages. The appellants claimed compensation/damages in the sum of Rs.8,20,000/- and an interest of Rs.65,000/- thereon.
3. The respondents contested the suit and contended that the Government had prepared a scheme for establishments of 110 KV DIC Marcela-Kadamba power line to feed the proposed 110/33 KV electric substation at Kadamba Plateau. The scheme was duly published in the Government Gazette, as also in the local newspapers. The respondents contended that as per the provisions of Section 12, read with Section 51 of the Indian Electricity Act, 1910 ( for short "the Act"), the respondents were entitled to open and break up the soil and lay down and place electric supply-lines and carry out other works through the property of the appellants, without acquiring the suit property. By virtue of Section 51 of the Act read with Section 10 of the Indian Telegraph Act, 1885 they had the power to lay electric lines, to place and maintain telegraph lines and posts, on any private property without acquiring it. They further contended that the scheme was framed in the year 1990 and was published in the Official Gazette on 6th September, 1990 and therefore, the suit filed in the year 1997 was barred by limitation.
4. In view of the defence, the suit was set out for trial. The appellants examined three witnesses, including the appellant No.2 himself. The respondents examined one Mr. B.M. Dessai, Asst. Engineer, Electricity Department. A copy of the gazette, as well as the plans, were produced on record. After considering the evidence adduced by the parties, the trial Court dismissed the suit on the ground that it was barred by limitation, and also on merits. Aggrieved by the decision of the trial Court, the appellants are in appeal.
5. In view of the submissions made by the learned Counsel for the parties before me, the following points arise for my consideration:
(I) Whether the Civil Court had no jurisdiction to entertain and try the suit?
(II) Whether the suit was barred by limitation?
(III) Whether the appellants are entitled to compensation for erection of a power and for laying the electric lines on/over the suit property of the appellants?
(IV) If the answer to the point No.(III) is in the affirmative, then what is the appropriate amount of compensation?
6. Learned Counsel for the respondents submitted that the jurisdiction of a Civil Court to entertain and try a suit for damages/compensation is ousted by a reason of Section 52 of the In
