:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 32 OF 2006 1. Bharat Sanchar Nigam Limited, Panaji. Through its General Manager Telecom, Panjim Goa. 2. Union of India, through Secretary of Department of Telecommunication Sanchar Bhavan New Delhi. … Appellants V e r s u s Elenjical John Elias House No.272, Hotel Elenjical Saaj, Near Fatima Convent, Margao Goa, 403 601. … Respondent Mr. C.A. Ferreira, ASG for the appellants. Mr. C. A. Coutinho, Advocate for the respondent. CORAM : F. M. REIS, J DATE : 2 nd JULY, 2011 . ORAL JUDGMENT Heard Shri C. A. Ferreira, learned Assistant Solicitor General for the appellants and Shri C. A. Coutinho, learned Counsel for the respondent. The above appeal challenges the judgment and decree dated 19.10.2005 passed :2: by the learned Ad-hoc Additional District Judge, Fast Track Court-I, South Goa, Margao, in Civil Suit No.230/2004. 2. Briefly the facts of the case are that the respondent filed a suit for damages and mandatory injunction on the ground that the respondent is the owner in possession of the property surveyed under Chalta Nos.76 and 77 of P.T. Sheet No.233 of Margao city, in which property a multi-storey building including a hotel has been constructed. It is further his case that towards the eastern side of the said property the then Divisional Engineer of Telecom has installed a telephone box bearing No. MAR/P/102 i.e. pillar no.2 and at the time of such installation, the hotel was not constructed. It is further his case that said pillar was erected without his permission and in his absence and as such an objection was raised with regard to the erection of the said telephone box. It was further contended that the erection of the telephone box at the existing place was a nuisance to the respondent. After voluminous correspondence with the appellants for the purpose of shifting the telephone box from the site, ultimately the appellants called upon the respondent to pay a sum of Rs.91,355/- towards the estimated cost of shifting the pillar and the telephone box. As according to the respondent such :3: amount was exorbitant, there was further correspondence between the parties and ultimately a provisional bill was issued by the appellants for a sum of Rs.32,933.70 towards the estimated cost of the shifting of the telephone box. The said amount was duly deposited by the respondent with the appellants. Despite of such deposit, the appellants failed and neglected to carry out the assurance of shifting the telephone box from the said site and ultimately having no other alternative, the respondent served a notice on the appellants under Section 80 of the Civil Procedure Code calling upon them to shift the telephone box at their risk. Reply was received by the learned Advocate for the respondent stating inter-alia that such shifting of the telephone box was not possible in view of lack of technical feasibility. Ultimately the suit came to be filed by the respondent praying inter-alia for a direction to the appellants to shift the telephone box from the existing location besides a prayer for damages. 3. The appellants filed their written statement disputing the claim put forward by the respondent inter-alia contended that in view of the lack of technical feasibility in carrying out such shifting of the telephone box, the question of shifting the telephone box was not possible. It was further :4: their case that the amount deposited by the respondent was returned to the respondent by cheque which according to the respondent was not encashed. For other reasons as stated in the written statement, the appellants claimed that the respondent is not entitled for any of the reliefs as prayed for in the suit. 4. The learned Judge after framing the issues and recording of evidence, by the impugned judgment and decree dated 19.10.2005 partly decreed the suit and further directed that on the deposit of an amount of Rs.32,933.70 in favour of the Account Officer of the appellants, the appellants were directed to shift the pillar no.2 to the place as earmarked in Exhibit C-43 colly. The remaining prayers of the respondent came to be rejected. 5. Being aggrieved by the said judgment and decree, the appellants have preferred the present appeal. 6. Shri C. A. Ferreira, learned Assistant Solicitor General appearing for the appellants has assailed the impugned judgment and pointed out that merely because a sum of Rs.32,933.70 was deposited with the appellants, by :5: itself would not create any right in favour of the respondent to seek a direction that the telephone box be shifted from the existing place to the site chosen by the respondent. Learned Counsel further submitted that in view of the fact that there was no technical feasibility for carrying out such shifting, the appellants were not in a position to carry out such exercise. Learned Counsel further submitted that the question of granting any mandatory injunction as directed by the learned Judge by the impugned judgment would not arise as the respondent had alternate remedy to proceed under Section 17 of the Indian Telegraph Act, 1885 which clearly prescribes the procedure in such a situation. Learned Counsel has further taken me through the evidence on record and pointed out that merely because PW3 has opined that technical feasibility would not be affected in such shifting, there are no elaborate considerations of the overall factors which have to be considered in case such shifting is permitted. Learned Counsel further submitted that such evidence adduced by the respondent cannot be relied upon for the purpose of accepting that such shifting would not affect the feasibility of the situation at loco. Learned Counsel further submitted that the learned Judge has totally misdirected itself in granting the relief in favour of the respondent when in fact the sum of :6: Rs.32.933.70 deposited was only a provisional bill and the question of shifting the telephone box on deposit of such amount would not arise. Learned Counsel further took me through the evidence on record as well as the pleadings of the parties and pointed out that the learned Judge has totally misdirected itself in appreciating the evidence on record and not considering the provisions of law applicable in such cases whilst passing the impugned judgment. Learned Counsel further submitted that the question of granting mandatory injunction under the Specific Relief Act would not arise as no obligation has been culled out or established in favour of the respondent. Learned Counsel as such pointed out that the impugned judgment deserves to be quashed and set aside. 7. On the other hand, Shri C. A. Coutinho, learned Counsel appearing for the respondent has supported the impugned judgment. Learned Counsel has pointed out that the respondent has complied with all the conditions as called upon by the appellants by depositing a sum of Rs.32,933.70 which was accepted by the appellants and as such, it would not be open for the appellants to resile from their commitment to shift the telephone box from the existing location. Learned Counsel further submitted that the conduct :7: of the appellants in receiving the said amount and inducing the respondent to construct a platform for such shifting, estopped them from taking any contrary stand and/or resiling from their commitment to shift the telephone box from the existing location. Learned Counsel further pointed that the contention about the maintainability of the suit was not raised by the appellants in the written statement and as such the question of this Court relegating the respondent to file proceedings under the provisions of the Indian Telegraph Act, 1885 would not arise. Learned Counsel further submitted that as far as the amount of compensation payable for such shifting, the respondent would be agreeable to pay any further amount in case such amount is demanded by the appellants. Learned Counsel further took me through the evidence on record and pointed out that entire case set out by the respondent in the plaint has been accepted by the appellants. Learned Counsel further submitted that considering the defence raised by the appellants in their written statement, there is no question of any interference in the impugned judgment as the learned Judge has rightly assessed the evidence on record and decreed the suit in favour of the respondent. Learned Counsel as such submitted that the appeal deserves to be rejected. :8: 8. Having heard the learned Counsel for the parties and on perusal of the records, the following point for determination arises in the present appeal : POINT FOR DETERMINATION "Whether the learned Judge was justified to grant the direction in the nature of a mandatory injunction to shift the existing telephone box from the location at the site to the place as earmarked by the respondent at Exhibit C-43 colly.?" 9. On perusal of the pleadings of the parties, I find that there is no substantial denial as far as the case sought to put forward by the appellants with regard to the deposit of the amount of Rs.32,933.70 and the claim of the inability of the appellants to shift the telephone box from the existing place to the different location as identified by the respondent. But however the point for determination would be whether on the basis of the material on record, the learned Judge was justified to grant such a direction in exercise of its discretion in granting such relief in favour of the respondent. In the present case, there is no dispute that a sum of Rs.32,933.70 was deposited by the respondent pursuant to a demand made by the appellants as provisional charge for such shifting. :9: Though at the earlier stage there was no objection raised to such shifting on the ground of technical feasibility nevertheless whilst replying to the notice issued by the respondent under Section 80 of the Civil Procedure Code, a specific allegation to that effect was raised by the appellants on that count. Apart from that, in the written statement the reason mentioned by the appellants to resile from their earlier commitment to shift the telephone box was that there was no technical feasibility in such shifting. 10. The learned Judge whilst passing the impugned judgment has come to the conclusion that the existing telephone box is obstructing the visitors to the hotel constructed by the respondent which according to the learned Judge was creating a nuisance to the respondent. I find that such obstruction by itself cannot be accepted to be nuisance as claimed by the respondent. There is no evidence adduced by the respondent to establish such nuisance nor has the learned Judge given any categorical findings with regard to such nuisance, and as such the question of granting any such relief in favour of the respondent would not arise. It was incumbent upon the respondent to adduce cogent evidence to establish the claim of nuisance which he has failed to do by :10: adducing any acceptable evidence on record. 11. Apart from that, Section 17 of the Indian Telegraph Act, 1885 reads as under : “17. Removal or alteration of telegraph line or post, on property other than that of a local authority.-- (1) When, under the foregoing provisions of this Act, a telegraph line or post has been placed by the telegraph authority under, over, along, across, in or upon any property, not being property vested in or under the control or management of a local authority, and any person entitled to do so desires to deal with that property in such a manner as to render it necessary or convenient that the telegraph line or post should be removed to another part thereof or to a higher or lower level or altered in from, he may require the telegraph authority to remove or alter the line of post accordingly: Provided that, if compensation has been paid under section 10, clause (d), he shall, when making the requisition, tender to the telegraph authority the amount requisite to defray the expenses of the removal or alteration, or half of the amount paid as compensation, whichever may be the smaller sum. (2) If the telegraph authority omits to comply with the requisition, the person making it may apply to the District Magistrate within whose jurisdiction the property is situate to order the removal or alteration. (3) A District Magistrate receiving an application under sub-section (2) may, in his discretion, reject the same or make an order, absolutely or subject to conditions, for the removal of the telegraph line or post to any other part of the property or to a higher or lower level or for the alteration of its form; :11: and the order so made shall be final.” 12. Learned Assistant Solicitor General has admitted that the respondent is entitled to file an application under the said provisions of law. On perusal of the said provisions, I find that the remedy of the respondent to seek the shifting of the telephone box would be to exercise his right in filing an application under Section 17 of the Indian Telegraph Act, 1885 to the District Magistrate. Once an efficacious remedy was available to the respondent, the question of granting any relief in the nature of an injunction as directed by the learned Judge in the impugned judgment would be barred under Section 41(h) of the Specific Relief Act. The learned Judge has failed to consider the said provisions of law whilst passing the impugned judgment and as such has misdirected itself in granting a decree in favour of the respondent. 13. With regard to the contention of Shri C. A. Coutinho, learned Counsel appearing for the respondent to the effect that the appellants are estopped from resiling from their commitment in shifting the telephone box from the existing location after receiving the deposit from the respondent, I find that there is no foundation to that effect in :12: the plaint filed by the respondent. As such, the question of examining the said contention of the learned Counsel does not arise. 14. The contention of Shri C. A. Coutinho, learned Counsel appearing for the respondent to the effect that it would not be appropriate for this Court to now direct the respondent to file an application under section 17 of the Indian Telegraph Act, 1885, I find that considering the submission of the learned Assistant Solicitor General to the effect that the Respondent is entitled to file such application and that the appellants would not raise any objection with regard to the maintainability of such application as well as any objection on the ground of delay, any apprehension on the part of the learned Counsel appearing for the respondent that such remedy would not be efficacious cannot be accepted. 15. Considering the facts and the circumstances of the case, I find in the interest of justice, it would be appropriate that the respondent be permitted to file an application under Section 17 of the Indian Telegraph Act, 1885 before the District Magistrate for the purpose of shifting the existing telephone box from the existing place to a different location :13: as claimed by the Respondent. The statements of the Assistant Solicitor General as stated herein above are accepted. Shri C. A. Coutinho, learned Counsel appearing for the respondent submitted that such an application would be filed within a period of three months from today. In case such an application is filed, the District Magistrate shall endeavor to dispose the application within six months from the date of receipt of any such application in accordance with law. The District Magistrate shall not be influenced by any findings herein on merits. The said amount deposited would be subject to any orders which would be passed in the proceedings before the District Magistrate. The learned Assistant Solicitor General fairly made a statement that in case the telephone box is not allowed to be shifted, the amount deposited would be returned by this respondent with interest at the rate of 6% per annum from the date of the filing of the above suit up to actual payment. As such there is no need to consider the other findings of the learned Judge in the impugned judgment. In view of the above, the point for determination is answered accordingly. 16. In view of the above, I pass the following order : :14: O R D E R (i) Appeal is partly allowed. (ii)The impugned judgment and decree is quashed and set aside. (iii) The respondent is at liberty to file an application before the District Magistrate under Section 17 of the Indian Telegraph Act, 1885 as stated herein above in accordance with law. (iv) Appeal is disposed of accordingly with no order as to costs. F. M. REIS, J at*