IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 178 of 2010. Judgment reserved on 23.2.2011 Date of decision: 01.03.2011. Allian Duhangan Hydro Electric Project Prini …Petitioner. Versus Om Dutt & Anr. …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioner: Ms. Jyotsna Rewal Dua, Advocate. For the respondent No.1: Mr. Sunil Mohan Goel, Advocate. For the respondent No.2: None. Deepak Gupta, J. By means of this petition filed under Article 227 of the Constitution of India, the petitioner has challenged the order dated 16.1.2010 passed by the learned Trial Court in Civil Suit No. 11 of 2010 titled as Om Datt Vs. Allain Dhuhangan Hydro Electric Project, Prini & Anr. pending in the Court of learned Civil Judge, (Sr. Division) Kullu on the ground that this order was beyond the scope of jurisdiction of the learned Trial Court. 2. Briefly stated the facts of the case are that the respondent ( hereinafter referred to as the plaintiff) filed a suit 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. : 2 : before the learned Trial Court praying for decree of permanent prohibitory injunction restraining the defendants from laying high tension transmission line over and above the suit land bearing khasra No. 1367, khata khatauni No. 316/578, khasra Nos. 1374 and 1375, khata khatauni No. 316/577 and khasra No. 1372, khata khatauni No. 299/550 situate in Phati Shilihar, Kothi Kotkandi, Tehsil and District Kullu. The allegation made by the plaintiff was that the defendant-company had constructed a hydro electric power house at village Prini in Manali. According to the plaintiff, he is the owner in possession of the suit land and the defendant- company had no right, title over the suit land and were complete strangers to the same. The plaintiff further alleged that the defendants were threatening to cut the 'deodar' and 'kail' trees situate on his land to lay the transmission lines and therefore prayed that a restraint order be passed. 3. Along with the suit, an application under Order 39 Rules 1 and 2 CPC for interim directions was also filed. The suit was taken up by the Court on 13.1.2010 and notice was issued to the defendants on 16.1.2010. On 16.1.2010 in the presence of the learned counsel for both the parties the learned Trial Court passed an order directing the respondents-defendants to maintain status quo and directed them not to lay the high tension electric transmission line and also restrained them from cutting/removing the deodar and kail trees. The matter was adjourned to 23.2.2010 for filing reply etc. On 23.2.2010, learned : 3 : counsel for the respondents-defendants prayed for time to file reply to the stay application and the written statement to the suit. The matter was then adjourned to 10.3.2010 when again learned counsel for the defendants prayed for time to file reply and written statement. The reply was finally filed on the next date, i.e. 9.4.2010 and the matter adjourned to 12.5.2010. On 12.5.2010 parties prayed time for consideration of the application which was allowed and the case adjourned to 12.7.2010. It would also be pertinent to mention that on 12.5.2010 in the main suit the learned Trial Court passed a detailed order which reads as follows:- “Ld. counsel for the defendants has filed copy of the letter to Deputy Commissioner, Kullu. During the course of submission I find that the controversy in this suit revolves around whether the trees are standing on the suit land which have been marked to cut by the defendants in order to lay high tension electric transmission line for the commission of A.D. Hydro Project. It is the contention of the plaintiff that the trees have been marked by the forest department for felling. These trees are not the property of the forest department. On the other hand the defendants' counsel has submitted that the trees in question are not the property of the plaintiff. Ld. counsel has also submitted that the Deputy Commissioner, Kullu is already seized with the matter in dispute. Therefore, in the facts and circumstances of the case I am of the opinion that it will be expedient in the interest of justice in case the District Collector/Deputy Commissioner is directed to hold local investigation for the purpose of elucidating the matter in dispute as to whether the trees are standing over the suit land and if the trees are found standing thereon their number and nature. District Collector/Deputy Commissioner Kullu be also directed not to proceed further in the matter unless local investigation is referred above is not conducted. District Collector Kullu in order to find out whether the trees are standing over the suit land or not may give necessary directions to Tehsildar Kullu to demarcate the suit land and find out the number of trees standing thereon. Report be submitted to this Court on or before 12.7.2010” : 4 : 4. Thereafter the defendants-company filed the present petition in this Court challenging the order dated 16.1.2010:- 5. It would be pertinent to mention that in another writ petition filed by the defendants-company in this Court being CWP No. 513 of 2010 titled A.D. Hydro Power Ltd. Vs. State of H.P. & ors., this Court on 17.3.2010 had passed the following order:- “The petitioner may also apprise the Civil Courts regarding the ouster of jurisdiction of Civil Court in exercise of the powers by the Telegraph Authority under the Indian Telegraph Act, 1885 so that the developmental project may not be unnecessarily and unduly delayed. We direct the State Government and all the authorities concerned to render a helping hand to the petitioner so that the developmental project, which was originally scheduled to commence commercial operation on 1.6.2008, is able to commence the commercial production at least by 1.6.2010”. 6. This Court directed that the petitioner should apprise the Civil Courts regarding the ouster of jurisdiction of Civil Court in exercise of the powers by the Telegraph Authority under the Indian Telegraph Act, 1885 so that the developmental project may not be unnecessarily and unduly delayed. No doubt, the petitioner alongwith the written statement had filed a copy of this order, which has been quoted hereinabove. This however does not mean that the Trial Court is not required to examine the matter. The defendant-Company, cannot just throw the order of this Court at the face of the Trial Court and tell it to act promptly. The Court has a right to examine whether the order passed by this Court is applicable to the facts and circumstances of the case. This is something which the Trial Court must do. : 5 : Merely because the Trial court does not on the very same date dismiss the stay application, does not entitle the defendants to directly approach this Court. 7. I have in the earlier portion of the judgment clearly mentioned the orders which were passed by the learned Trial Court which clearly shows that the stay order was passed in the presence of learned counsel for the company and thereafter learned counsel for the company sought adjournment for two occasions and reply was filed only on 9.4.2010 on which date the Trial Court ordered that the matter would come on 12.5.2010 for consideration. In the stay application on 12.5.2010 both the parties prayed for time for consideration which was allowed and the matter adjourned to 12.7.2010. In the main suit a detailed order was passed which has been quoted hereinabove which clearly shows that the learned Judge was not oblivious to the orders of this Court and had directed the District Collector to find out whether the trees are standing over the suit land or not. The defendants claimed that the trees were not standing on the land of the plaintiff, but were part of forest land. The plaintiff on the other hand claimed that the trees stood on his land and therefore could not have been marked for felling. 8. The petitioner while approaching this Court under Article 227 of the Constitution of India did not make a mention of the order dated 12.5.2010 passed in the main suit. Ms. Jyotsna Rewal Dua states that she was unaware of this order as she was : 6 : not apprised of this order. This order in the main suit was passed in the presence of Mr. Anuj Sharma, learned counsel for the defendants who in fact had filed a copy of the letter addressed to the District Collector, Kullu. Therefore, it was the duty of the defendants-petitioners to have placed this order before this Court. Without apprising this Court of the order passed in the main suit, the defendants deceitfully obtained an order from learned Single Judge of this Court on 28.5.2010 staying the order of the learned Civil Judge. This stay was granted in view of the judgment of the Division Bench of this Court referred to above. It would be pertinent mention that the order of the learned Division Bench does not in any manner imply that an authority authorized under the Telegraph Act can enter the land of any party without following the procedure laid down in the Indian Telegraph Act. A Division Bench of this Court in CWP No. 5635 of 2010 along with CWP No. 6123 of 2010 decided on 24.12.2010 has dealt with this question in detail. For the purpose of this case, this Court is only concerned with Sections 16 and 18 of the Indian Telegraph Act which read as follows:- “16. Exercise of powers conferred by section 10, and disputes as to compensation, in case of property other than that of a local authority. (1) If the exercise of the powers mentioned in section 10 in respect of property referred to in clause (d) of that section is resisted or obstructed, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them. : 7 : (2) If, after the making of an order under sub-section (1), any person resists the exercise of those powers, or, having control over the property, does not give all facilities for their being exercised, he shall be deemed to have committed an offence under section 188 of the Indian Penal Code, 1860 (45 of 1860). (3) If any dispute arises concerning the sufficiency of the compensation to be paid under section 10, clause (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him. (4) If any dispute arises as to the persons entitled to receive compensation, or as to the proportions in which the persons interested are entitled to share in it, the telegraph authority may pay into the court of the District Judge such amount as he deems sufficient or, where all the disputing parties have in writing admitted the amount tendered to be sufficient or the amount has been determined under sub-section (3), that amount; and the District Judge, after giving notice to the parties and hearing such of them as desire to be heard, shall determine the persons entitled to receive the compensation or, as the case may be, the proportions in which the persons interested are entitled to share in it. (5) Every determination of a dispute by a District Judge under sub-section (3), or sub-section (4) shall be final: Provided that nothing in this sub-section shall affect the right of any person to recover by suit the whole or any part of any compensation paid by the telegraph authority, from the person who has received the same. 18. Removal of trees interrupting telegraphic communication. (1) If any tree standing or lying near a telegraph line interrupts, or is likely to interrupt, telegraphic communication, a Magistrate of the first or second class may, on the application of the telegraph authority, cause the tree to be removed or dealt with in such other way as he deems fit. (2) When disposing of an application under subsection (1), the Magistrate shall, in the case of any tree in existence before the telegraph line was placed, award to the persons interested in the tree such compensation as he thinks reasonable, and the award shall be final.” 9. This Court while dealing with the Sections 16 and 18 held as follows: “Section 16 (1) clearly lays down that if any person resists or obstructs the telegraph authority then the District Magistrate may in his discretion order that the telegraph authority shall be permitted to exercise the powers vested in it. Section 16(2) : 8 : provides that if any person despite the order of the District Magistrate resists the exercise of those powers, he shall be deemed to have committed an offence punishable under Section 188 of the Indian Penal Code. Therefore, we are of the considered opinion that when a person obstructs the telegraph authority then the telegraph authority must approach the District Magistrate and obtain an order from him under Section 16(1) of the Indian Telegraph Act, 1885. Though filing of a suit may not be barred in strict terms, when we read Section 16 as a whole it is more than apparent that the telegraph authority must first approach the District Magistrate. If there is dispute with regard to compensation payable that has to be decided by the District Judge in terms of Section 16(3) of the Indian Telegraph Act. The practice which the private transmission Companies are following, of filing suits must be deprecated and they would be better advised to first file applications under Sections 16(1) and only thereafter if the person still resists they can take action under Section 16(2) and in such eventuality may also file a suit against such persons who obstruct their activities. We also find that the private transmission companies are totally ignoring the provisions of Section 18 of the Telegraph Act. A bare reading of this provision shows that when a tree standing or lying near a telegraph line interrupts or is likely to interrupt such communication, they must apply to a Magistrate of the first or second class who alone can order the tree to be removed or dealt with in any other manner. The Magistrate in such circumstances is also required to award reasonable compensation to the person(s) interested in such tree. This provision of law is not being followed at all by the private transmission companies. We have not come across a single case where they have approached the Magistrate for permission. The transmission Companies only take the permission of the Forest Department, fell the trees and pay compensation as assessed by the Forest Department. This is totally illegal and not at all in accordance with Section 18 of the Act.” 10. In the present case if the plaintiff was obstructing the defendants from raising any construction, it was the duty of the defendants to have approached the District Magistrate in terms of Section 16. When the Trial Court was informed that some application was filed with the District Magistrate he passed a detailed order referred to above and directed that it be ascertained whether the trees are in the land of the plaintiffs or not. The question whether the trees were on the suit land or not has to be decided. There is no express bar to filing a suit in the : 9 : Telegraph Act, though it would be always better that the District Magistrate be approached when a person raises an objection to the cutting of the trees when any party objects to or obstructs the felling of trees. 11. The procedure which has to be followed is laid down under Section 18 of the Act and it is only the Magistrate of the 1st class or 2nd class who can order the trees to be removed or dealt with in any manner. The permission of the Ministry of Environment and Forest or of the Forest Department to cut the trees does not in any manner entitle the private transmission company to cut the trees without following the procedure laid down in Section 18 of the Act. 12. It is well settled law that when an authority who is authorized to do certain acts after following the procedure laid down does not follow such procedure or does not follow the principles of natural justice, then the jurisdiction of Civil Court can never be barred. The question whether the jurisdiction of the Civil Court is barred or not is also a question to be decided by the Trial Court. 13. In the present case the defendants without approaching the Trial Court or filing an appeal to the District Judge straightway approached this Court under Article 227 of the Constitution of India which in the facts of the present case could not have been done especially after withholding material facts from this Court. As pointed out above, the adjournments were : 10 : being asked for by learned counsel for the defendants. The defendants did not file any application before the Trial Court to take up the matter urgently and it cannot be said that any gross illegality was committed by the Trial Court. The Apex Court in A Venkatasubbiah Naidu Vs. Chellappan and others, AIR 2000 Supreme Court 3032 held as follows:- “19. It is acknowledged position of law that no party can be forced to suffer for the inaction of the Court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39 of the Code in terms of Order 43, Rule 1 of the code. He cannot approach the appellate or revisional Court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party who does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39, Rule 3-A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate Court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate Court in complying with the provisions of Rule 3- A. In appropriate cases the appellate Court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including making adverse entry in his ACRs. Failure to decide the application or vacate the ex parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rules. 20. Now what remains is the question whether the High court should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies. Though no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned single judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High court had chosen to entertain the revision petition.” : 11 : 14. Thus the law is clear that if a party is aggrieved by any such order, it has two remedies available. It can either approach the learned Trial Court for vacation of the said order or approach the Appellate Court and even if the application is not finally decided, the aggrieved party may directly approach the Appellate Court for vacation of the order. The Apex Court in no uncertain terms has held that High Court should normally direct a party to first avail the alternative remedy available to it under ordinary law before resorting to a constitutional remedy. Neither of those two courses were followed by the petitioner, who directly approached this Court. In my view the petition, is therefore not maintainable. 15. As observed above, when this petition was filed in this Court without giving full facts, the learned Single Judge granted an ex parte order staying the operation of the order passed by the learned Trial Court. Thereafter the defendants felled the trees in question and now the transmission line has been laid. At this stage, since the transmission line has been laid, the same cannot be ordered to be removed. 16. In view of the conduct of the petitioner in directly approaching this court that too without complete and true facts, I am of the considered view that heavy costs should be imposed upon the petitioner company. Accordingly costs of Rs. 50,000/- are imposed upon the petitioner which shall be paid by the petitioner-Company to the plaintiff respondent. The learned : 12 : Trial Court after taking cognizance of the orders of this Court now decide whether it has jurisdiction to proceed with the suit or not. In any event, since the transmission line has already been laid, no prejudice is going to be caused to any party even in case the case proceeds. It is made clear that the costs ordered to be paid shall not be taken into consideration while assessing the compensation, if any, payable to the plaintiff in accordance with law. The petition is disposed of in the aforesaid terms. The parties through their counsel are directed to appear before the learned Trial Court on 4th April, 2011. The Registry is directed to send back the record of the learned Trial Court so as to reach the same before the learned Trial Court before the said date. The defendant-company shall pay the costs aforesaid to the plaintiff on or before the aforesaid date, failing which the defence of the defendants in the main suit shall be struck off. (Deepak Gupta) Judge March 1, 2011. (Krn guleria)