KULIKARAI VISWANATHASWAMI TEMPLE, BY ITS TRUSTEE BAVA C GOPALASWAMI MUDALIAR Vs. ASSISTANT ENGINEER FOR SURVEYS, ELECTRICITY DEPARTMENT

JUDGEMENT

(1.) In laying a line for the conveyance of electric power in connection with the Pykara scheme it was necessary to take it through a tope of the petitioner situated in Anavadapathi village. It appears that the engineer in charge of the scheme proceeded to cut down certain trees in the petitioner's tope and when he Objected, the engineer applied to the Sub-Magistrate under Section 18(1) of the Indian Telegraph Act, which Act applies also to electric power lines and the magistrate ordered the petitioner not to interfere with the engineer in the cutting down of the trees. Apparently acting under Section 18(2), he passed an order which has been filed as Ex. IV, which evaluates all the trees which were cut by the engineer. The petitioner then applied to the District Judge under Section 16(3) of the same Act with regard to the quantum of compensation awarded. The learned District Judge thought that Section 16(3) did not apply; and held that the case of the petitioner was covered by Section 18, which says that the Magistrate's order is final and the District Judge had no jurisdiction to entertain any complaint about the inadequacy of the compensation awarded.

(2.) Section 18 contemplates action by a Magistrate on the application of the telegraph authority; but not direct action of cutting, down trees by the telegraph authority itself. Moreover, Section 18 only applies to the cutting down of the trees after a line has1 been erected; because Section 18(1) begins "if any tree standing or lying near a telegraph line". If a telegraph line does not exist, there can be no tree standing near a telegraph line. On the other hand, Section 10(d) gives the telegraph authority power to lay a telegraph line upon any immovable property and to do necessary damage for the proper laying of the lines. It is authorised to pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers. Where a line is laid across a tope it would first of all be necessary to cut down certain trees in order that the line might be laid. It might then be desirable that certain other trees, which do prevent the laying of the line, should be cut down because they are so close as to be a potential danger to the line. In such cases, the engineer has no power to cut the trees himself. He must apply to the Magistrate, who presumably would have to exercise his discretion as to what trees the owner is bound to clear away. Admittedly, the engineer did cut down some trees without any application to the magistrate and he could only have cut those trees by exercising authority under Section 10(d). For that purpose he was bound to award compensation; and if we assume that the values of the trees which he considered to be proper is that set out in Ex. IV, then that award is open to reconsideration by the District Judge upon the present application under Section 16(3). Any other trees that had to be cut down for the laying of the line would also be governed by Section 10(d), even though the magistrate passed orders concerning them. Those trees which were cut down after the line was erected on the order of the magistrate would be covered by Section 18, and the magistrate's valuation would be final.

(3.) These petitions are therefore allowed and the petitions before the lower Court remanded for disposal according to law. Costs of these applications will be costs in the cause and provision will be made by the learned District Judge for them in his final order.