JUDGMENT :

Hiranmay Bhattacharyya, J.

1. After hearing the learned advocates for the parties on 06.07.2023 and upon considering the statements made in the affidavit in support of the application under Section 5 of the LIMITATION ACT this court was satisfied that the petitioner was prevented by sufficient cause for not preferring the instant appeal within the prescribed period of limitation and thereafter heard the learned advocates for the parties on the merits of the appeals and the judgment was reserved by the order dated 06.07.2023. In view thereof the marginal delay of 13 days in preferring the instant appeal is condoned. CAN 1 of 2023 accordingly stands allowed.

2. This Intra Court Mandamus Appeal is at the instance of the writ petitioner and is directed against a judgment and order dated March 16, 2023 passed by a learned Single Judge in WPA No. 28872 of 2022.

3. The appellant claims to have purchased a land in Mouza Muragacha under Police Station Sonarpur in the District of 24 Parganas (South) by a registered deed of sale dated 15.03.2011. In the year 2017, when the appellant started taking steps for construction of a house on the said land, it came to his notice that a high tension overhead electricity line has been drawn by the West Bengal State Electricity Distribution Company Limited (for short “WBSEDCL”). The appellant claims that no notice was served upon him prior to drawing the said high tension line. The appellant filed an application under Section 17 (2) of the Indian TELEGRAPH ACT , 1885 (hereinafter referred to as, “the 1885 Act”) which was wrongly captioned to be under Section 10(2) thereof. Alleging inaction on the part of the Distribution Licensee, the appellant moved a writ petition being WPA No. 6871 of 2022 which was disposed of on May 10, 2022 by directing the District Magistrate 24 Parganas (South) to decide the said application by treating the same to be under Section 17 of the 1885 Act. The District Magistrate issued notice to the respective parties and after directing a field enquiry to be undertaken, passed an order on October 20, 2022 observing that shifting of the high tension overhead line was technically feasible, subject to the payment of quotation amount by the appellant. Being aggrieved by the said order whereby the appellant was directed to bear the shifting charges, the appellant filed the writ petition being WPA No. 28872 of 2022.

4. The learned Single Judge, by the judgment and order dated March 16, 2023, dismissed the writ petition. Challenging such order the writ petitioner has approached this court.

5. Mr. Dasgupta learned advocate appearing in support of the appeal contended that the learned Single Judge failed to appreciate that Section 17 (1) of the 1885 Act do not provide for payment of shifting charges by the land owner when no compensation amount has been paid to such land owner.

6. Mr. Nayek learned advocate representing the Distribution Licensee submitted that the appellant did not raise any objection at the time of laying of the high tension overhead line over his property. He further contended that the work of laying of the overhead line was executed spanning a period of 3-4 years and the appellant did not make any claim for compensation at the relevant point of time. He further submitted that after the copy of the application for shifting of the high tension overhead line was received by the Distribution Licensee, an estimate and drawing was made for such shifting and a quotation was generated as per the norms. He submitted that the high tension overhead line can be shifted only if the appellant pays the shifting charges therefor.

7. Heard the learned advocates for the parties and perused the materials placed.

8. In view of the provisions of section 164 of the ELECTRICITY ACT , 2003 the Distribution Licensee can exercise the powers of telegraph authority for the purpose of construction of power transmission towers, laying and drawing of high tension overhead lines under, over, a