The Executive Engineer , Vs Doddamani Kariayappa S/O Doddamani Fakkirappa

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT OR ORDER OR DIRECTION, QUASHING THE IMPUGNED ORDER AND THE AWRD DATED 13/04/2023 PASSED BY THE III ADDL. DIST AND SESSIONS JUDGE, BALLARI (SITTING AT HOSPETE) IN MISC.NO.5099/2021 PRODUCED AT ANNEXURE-E AND ETC.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 16.04.2025, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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CAV ORDER

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The KPTCL has filed the captioned petition assailing the order dated 13.04.2023 passed by the learned III Additional District and Sessions Judge, Ballari (sitting at Hosapete) in Misc.No.5099/2021, thereby allowing the petition filed under Section 16(3) of the Indian Telegraph Act, 1885 (hereinafter referred to as ‘the Act’ for short)

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and directed the Corporation to pay compensation of Rs.1,20,319/- with interest at the rate of 8% p.a. from the date of drawing of transmission lines till its realization.

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The brief facts leading to the case are as under:

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The petitioner/Corporation has drawn 66 KV High Tension Power Line with tower over the respondent’s land. This factual matrix is admitted by the Corporation. Respondent/claimant filed petition under Section 16(3) of the Act claiming compensation against the petitioner/Corporation for having utilized the land of the respondent bearing R.S.No.236/1 of Beerabbi village. This petition is filed by the respondent/claimant alleging loss of land and crop and diminution of the land value.

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The present petitioner/Corporation on receipt of

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notice filed objections and seriously disputed the claim made by the respondent. The petitioner/Corporation also contended that the claim made by the

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respondent/claimant is barred by limitation since the petition is filed after lapse of fourteen years, and there is no cause of action.

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The respondent/claimant and the

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petitioner/Corporation to substantiate their respective claim let in oral and documentary evidence. The learned District Judge while answering point No.3 which relates to the claim petition being barred by limitation, has come to the conclusion that, if Article 137 of the Limitation Act is made applicable to the claim petition filed under Section 16(3) of the Act, then proviso to Clause (5) of Section 16, will become otiose. The learned District Judge was also of the view that the damage caused to the petitioner in the form of damage to crop and damage due to diminution of the land value is recurring cause of action. Therefore, the petitioner/claimant is entitled to be compensated and the

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period prescribed under Article 137 is not applicable to the case on hand.

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This Court has carefully heard the submissions of the learned counsel for the petitioner/Corporation as well as the learned counsel for the respondent/claimant. It has also given anxious consideration to the legal principles laid down by the Hon’ble Apex Court in KERALA STATE

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ELECTRICITY BOARD, TRIVANDRUM V. T.P. KUNHALIUMMA ,

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reported in (1976) 4 SCC 634 . The said decision has been followed by a Coordinate Bench of this Court in W.P.No.22208/2019 and further affirmed by the Division Bench in W.A.No.100366/2022 and connected matters. This Court has also given due consideration to the judgments relied upon by the learned counsel for the respondent/claimant. The following point would arise for consideration.

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“Whether the finding of the learned District Judge that petition filed under Section 16(3) of the Telegraph Act, 1885 is maintainable and Article 137 of the Limitation Act is not applicable to the proceedings

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initiated under Section 16(3) of the Act, is perverse and contravenes the law declared by the Hon’ble Apex Court in the case of the Kerala Electricity Board, Trivandrum vs T.P.Kunhaliumma?”

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Finding on the point:

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Before this Court proceeds to examine the core issue involved in the present case, it is imperative to set out certain key facts and the relevant factual background. In the instant case, the respondent/claimant has unequivocally admitted that at the time when the High Tension Power Line was drawn across his land, there was no standing crop, as the activity took place during the summer season. This factual admission by the respondent/claimant is crucial and fundamentally undermines the basis of his claim that he suffered agricultural loss due to damage to crops. The claim for compensation on this ground, therefore, appears to be unfounded and misconceived.

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Further, KPTCL has produced a document

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marked as Ex.R2, which clearly establishes that the

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transmission tower was erected and the High Tension Power Line was commissioned on 16.08.2008. The petitioner/Corporation has effectively established this fact not only through documentary evidence but also during the cross-examination of the respondent/claimant, wherein he candidly admitted that the power line was drawn and made operational on the aforementioned date. This admission, both oral and documentary, leaves no room for doubt regarding the date of commissioning of the High Tension Power Line.

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In view of these established facts, the primary question that falls for consideration before this Court is whether the learned District Judge was justified in entertaining a petition filed under Section 16(3) of the Indian Telegraph Act, 1885, after a substantial lapse of time. More specifically, this Court must examine whether the learned District Judge was correct in holding that Article 137 of the Limitation Act, 1963, does not apply to such petitions.

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In this regard, it is pertinent to refer to the authoritative judgment of the Hon’ble Supreme Court in the case of KERALA STATE ELECTRICITY BOARD, TRIVANDRUM (SUPRA) , wherein the Apex Court has unequivocally held that a petition filed under Section 16(3) of the Act for determination of compensation is to be treated as an application filed before a civil court. Consequently, such a petition is governed by Article 137 of the Limitation Act, which prescribes a period of three years for filing an application when no other period of limitation is expressly provided.

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The above-mentioned decision of the Hon’ble Apex Court clearly establishes that whenever the District Judge is called upon to determine compensation under the provisions of the Act, he functions in the capacity of a civil court and performs a judicial function. Therefore, any application filed under Section 16(3) of the Act is required to be filed within the period of limitation prescribed under Article 137 of the Limitation Act.

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In the instant case, despite the clear guidance laid down by the Apex Court, the learned District Judge, while adjudicating the matter and deciding point No. 3, erroneously recorded a finding that the limitation period prescribed under Article 137 does not apply to such petitions. This finding not only lacks legal justification but also stands in direct contradiction to the binding precedent of the Hon’ble Supreme Court. Such a deviation from established legal principles renders the impugned order perverse in the eyes of law.

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Moreover, the undisputed fact, as brought out during the cross-examination and further corroborated by Ex.R2, is that the High Tension Power Line was commissioned in the year 2008. The present claim petition was filed in the year 2021, which is fourteen years after the completion of the work, and well beyond the three year limitation period prescribed under Article 137. Hence, on the face of it, the petition is clearly time barred.

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It is also noteworthy that in an identical factual scenario, a Coordinate Bench of this Court, while relying

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upon the very same judgment of the Hon’ble Apex Court, has categorically held that Article 137 of the Limitation Act is squarely applicable to petitions filed under Section 16(3) of the Telegraph Act. In view of such a settled position of law, there is no scope for this Court to take a divergent or contrary view in the present case.

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Accordingly, the law as laid down by the Hon’ble Apex Court is fully applicable to the facts of the case at hand. The impugned order passed by the learned District Judge, by disregarding the applicability of Article 137, suffers from gross illegality and perversity. If the provisions of Article 137 are held to be applicable and rightly so, then the learned District Judge had no jurisdiction to entertain or adjudicate upon a petition that was ex facie barred by limitation. Therefore, the point under consideration is answered in the affirmative, and it is held that the claim petition filed under Section 16(3) of the Act in the year 2021 is liable to be dismissed as barred by limitation.

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For the forging reasons, this court proceed to

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pass the following:

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ORDER

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i) The writ petition is allowed.

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ii) The order dated 13.04.2023 passed by the learned III Additional District and Sessions Judge, Ballari (sitting at Hosapete) in Misc.No.5099/2021 is hereby set aside.

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Sd/(SACHIN SHANKAR MAGADUM) JUDGE

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MBS Ct:vh

The Executive Engineer , v. Doddamani Kariayappa S/O Doddamani Fakkirappa

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The Executive Engineer , v. Doddamani Kariayappa S/O Doddamani Fakkirappa

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