1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 135 OF 2001 1. Mrs. Melba Lima Brito, major, widow of late Francisco Xavier Brito and residing at Camotim Vaddo, Candolim, Bardez, Goa. 2. Mr. Jose Philipe P. Braganza, major, married and residing at Angod, Mapusa. ........ Appellants. V/s. 1. Government of Goa, through its Chief Secretary having its office at Secretariat, Panaji – Goa. 2. Superintendent Engineer, Electricity Department, Circle II (N), Panaji – Goa. ........ Respondents. Mr. J. P. Mulgaonkar, Advocate for the appellants. Mr. Amey Kakodkar, Addl. Govt. Advocate for the respondents. CORAM :- D.G. KARNIK, J. Date :- 3rd September, 2010. 2 O R A L J U D G M E N T : 1. 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 3 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 D/C 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 4 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 : 5 (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 tower 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 Indian Electricity Act, 1910. Section 52 of the Act which says that where any matter is, by or under this Act, directed to be determined by arbitration, the matter shall, unless it is otherwise expressly provided in the licence of a licensee, be determined by such person or persons as the State Government may nominate in that behalf on the application of either party, but in all other respects, the arbitration shall be subject to the provisions of the Arbitration Act 1940 (the words “the Arbitration Act 1940” were subsequently replaced by the words “the Arbitration and Conciliation Act, 1996”). The Counsel submitted that whether at all any compensation was payable and if so 6 what would be the amount of compensation was required to be decided by arbitration and, therefore, the Civil Court had no jurisdiction to entertain and try the suit. 7. Per contra, learned Counsel for the appellants submitted that whether any damage or loss to the property of the appellants was caused or not is a question which was required to be decided under the Indian Electricity Act, 1910, but is to be decided on facts as may be established under the law of the land. Moreover, what is the amount of compensation is also not required to be determined under the Act, but is required to be determined under the general law and, therefore, there is no question of referring the dispute to the arbitration under Section 52. He further submitted that under Section 9 of the Code of Civil Procedure, the Civil Court has inherent jurisdiction to try every suit of a civil nature, unless the jurisdiction of the Civil Court is ousted expressly or by necessary implication. A suit for damages against the respondents/ licensee for laying high power transmission lines through the appellants' property is not barred by any of the provisions of the Act or the Indian Telegraph Act, 1885. In support of his submission, learned Counsel referred to and relied upon a decision of the Supreme Court in the case of M.P. Electricity Board, Jabalpur 7 vs. M/s. Vijaya Timber Co., AIR 1997 SC 2364 and a decision of this Court in the case of Binani Zinc Fibre (M/s) and another vs. Pandurang Harischandra Toraskar and ors., 1999 (3) Mh.L.J. 973. 8. In the case of M.P. Electricity Board, Jabalpur vs. M/s. Vijaya Timber Co., (supra), the plaintiff therein had filed a suit against the defendant for a direction of removal of electric line with poles situated in his property and also for damages for so laying the electric line. After considering the provisions of the Act, as also the provisions of the Electricity (Supply) Act, 1948, the Trial Court decreed the suit and the Appellate Court confirmed the decree in appeal. On an appeal, the High Court set aside the decree for removal of the electric line, but sustained the decree for damages. The High Court held that the defendants having laid the transmission line without seeking consent of the plaintiffs, cannot be treated as having acted in accordance with the Electricity Act, 1910 as well as the Electricity (supply) Act 1948 and could not take shelter thereunder. It held that the suit for compensation and damages under the common law was maintainable. On appeal against the decision of the High Court, the Apex Court, relying upon the observations in its Constitution Bench decision in Dhulabhai etc. v. State of Madhya Pradesh, AIR 8 1969 SC 78, held that the jurisdiction of the Civil Court was not to be readily inferred and the Civil Court would have jurisdiction. Accordingly, the Apex Court confirmed the decisions of the High Court, holding that the Civil Court had jurisdiction to entertain and try the suit for damages. 9. In Binani Zinc Fibre (M/s) and another vs. Pandurang Harischandra Toraskar and ors.,(supra), the plaintiffs therein had filed a suit for restraining the defendants from taking the proposed supply of electricity and/or carrying out any work in that regard, through his property. The defendants challenged the jurisdiction of the Civil Court to entertain and try the suit and contended that only the District Magistrate i.e. the Collector, North Goa had jurisdiction to entertain the grievance of the public and the plaintiffs and that the defendants were ready to pay compensation as may be decided by the District Magistrate or the Court. After considering the provisions of the Indian Electricity Act, 1910, including Sections, 12, 19 an 51 thereof and following the decision of the Supreme Court in the case of M.P. Electricity Board, Jabalpur vs. M/s. Vijaya Timber Co., (supra), this Court held that the Civil Court had the jurisdiction to 9 entertain and try the suit. 10. 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. 11. As regards the question of limitation the Trial Court, relying upon the evidence of Mr. B.M. Dessai, (DW.1), an Assistant Engineer of the Electricity Department who had stated that the work of laying lines started in the year 1990 and completed in March, 1998, held that the trespass was committed in the year 1990 and, therefore, the suit filed in the year 1997 after a lapse of 3 years, was barred by limitation. In my view, the trial Judge has misread the deposition of Mr. Dessai. Mr. Dessai produced on record the Government Gazette dated 6th September 1990 in which the scheme of the Government regarding laying of electric power line was published. Mr. Dessai in 10 his deposition, stated that in pursuance of the said scheme, necessary alignment was drafted and the suit property came within the said alignment. He further stated that despite publication of the scheme in the Gazette, no objections for the scheme were received from any person. He then stated that the work of laying line commenced in the year 1990 and was completed in the year 1998. He, however, has not stated in his deposition when the electric line through the suit property was laid. It may be noted that the scheme was published in the Official Gazette in 1990 and, the work of alignment was prepared thereafter. The line was to be laid covering a distance of about 11 kms. All the work was not completed in the year 1990. 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 11 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 specially 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 proving 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. 12. Even if it is assumed that the tower was erected and/or the electric lines were laid in the year 1990 as held by the trial Court, still in my view, the suit would not be barred by limitation. When a tower 12 is erected, obviously the appellants would not be able to use the land occupied by and under the tower for their own use. Similarly, there will be restrictions put upon the use of the land over which the electric line of 110KV D/C is placed. The restriction over the use of the land is a continuous act and the appellants would suffer damage or loss day to day. Thus it is a continuing wrong. The claim for damages for a period of 3 years immediately preceding the date of suit cannot be said to be barred by limitation. In view of the fact that there is a continuous damage suffered by the appellants on account of the restrictions on the use of the land over which the transmission line is based, as also the land occupied by the tower, the appellants were entitled to compensation, at least for a period of 3 years immediately preceding the suit. 13. Section 51 of the Act, on which reliance is placed by the respondents, the Central Government in the case of inter-State transmission system and the State Government in the case of intra- State transmission system, has the same powers which the telegraph- authority possesses with respect to the placing of telegraph-lines and posts for the purposes of a telegraph established or maintained by the Government under the Indian Telegraphs Act, 1885. The respondent- 13 State, therefore, had the power to lay down electric line through the land of the appellants. While Section 10 of the Indian Telegraph Act, 1885 empowers the Telegraph Authority to place and maintain a telegraph line under, over, along, or across, and posts in or upon, any immovable property, proviso (d) thereto provides that in the exercise of the powers conferred by the section, the telegraph authority shall do as little damage as possible and, shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers. Section 10 which authorizes the telegraph authority to lay lines through the land of a person itself requires the telegraph authority to pay compensation for the damage caused to the property of the person in whose property the poles/towers are fixed and/or from whose land the lines are laid. Section 19 of the Indian Electricity Act, 1910 also contains a similar provision regarding compensation and says that a licensee (Electricity company or the Government Department), in exercise of any of the powers conferred by or under the Act, shall cause as little damage, detriment and inconvenience as may be, and shall make full compensation for any damage, detriment or inconvenience caused by him/it or by any one employed by him. Thus, both the Acts namely the Indian Electricity 14 Act, 1910, as well as the Indian Telegraph Act, 1885 while conferring a power on the telegraph authority and the licensee under the Electricity Act to place poles, towers, lines (electric as well as telegraph), provide that while doing so cause as little damage to the property of the owner and the owner shall be compensated for the damage, detriment or inconvenience caused to him. 14. In the present case, DW.1 Mr. Dessai, in his deposition has admitted that one tower admeasuring 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 15 underneath. There would be height restrictions on the structures to be raised underneath. In some cases the owner may not be entitle 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 Electricity Act, 1910. Similar are the provisions of the Indian Telegraph Act, 1885. 15. Unfortunately, the trial Judge has not determined the quantum of loss, damages detriment or inconvenience caused or suffered by the appellants and has not recorded any finding on the aforesaid aspects. As such, remand is inevitable. 16. For these reasons, the appeal is partly allowed. The impugned Judgment and Order is set aside. The decision that the Civil Court had jurisdiction to entertain and try the suit, is confirmed. However, the decision that the suit was barred by limitation is set aside. Similarly, the decision that the appellants are not entitled for any compensation for the loss suffered by them is set aside. It is held that the appellants are entitled to a compensation for the loss or damage suffered by them by erection of the tower and by laying electric line over or through the property of the appellants. The matter 16 is remanded to the trial Court only for the purpose of determination of compensation. The trial Court shall give an opportunity to both the parties to adduce additional evidence, if any, on the quantum of damages. D.G. KARNIK, J. ssm.