Governor General in Council and Another vs Achhru Ram and Another

Harnam Singh, J.—To appreciate the point arising in these proceedings the facts must be set out in some detail.

On the 21-11-1949 Acchru Ram and Dharam Parkash instituted C.S. No. 161 of 1949 for a permanent injunction directing the Defendents to remove telephone lines from the land belonging to the Pltfs.

Relying on the provisions of Section 17, Telegraph Act, 1885, hereinafter referred to as the Act, Defts urged a preliminary objection that Civil Cts have no jurisdiction to try C.S. No. 161 of 1949.

On the pleadings of the parties the trial Ct fixed the following issue: "Whether this Ct has got jurisdiction to try this suit?" In deciding the case the trial Ct said:

All suits of a civil nature ordinarily are triable by the Civil Cts. It is in the discretion of the Pltf to apply to the Dist Magistrate for removal of the telegraph lines and it is not obligatory on him to do so. There is also no statute or authority ousting the jurisdiction of the Civil Cts in such matters. I thus have no hesitation to hold on this issue in favour of the Pltf.

The Union of India and the Punjab State, Defts 1 and 2, apply u/s 115, CPC for revision of the order passed by the trial Ct on the 12-11-1949.

Mr. Basant Krishan Khanna, Advocate General of the Punjab State, urges that where a statute creates a duty or imposes a liability and prescribes a specific remedy in case of neglect to perform the duty or discharge the liability, no remedy can be taken but the particular remedy prescribed by the statute. On this point reliance is placed on ''Raleigh Investment Co. Ltd. v. Governor General in Council AIR 1947 PC 78 : (74 IA 50), and Thin yen Vs. Secy. of State and Another, . The argument raised is that considering that Section 17 of the Act prescribes a specific remedy for the review of the action taken by the telegraph authority that remedy is the only one which can be pursued by the Pltfs.

Section 17 reads:

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 form, he may require the telegraph authority to remove or alter the line or post accordingly:

Provided that, if compensation has been paid u/s 10, Clause (d), he shall, when making the requisition, tender to the telegraph authority the amount requisite to defray the expense of the removal or alteration, or half of the amount paid as compensation, whichever may be the smaller sum.

If the telegraph authority omits to comply with the requisition, the person making it may apply to the Dist Magistrate within whose jurisdiction the property is situate to order the removal or alteration.

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; and the order so made shall be final.

In C.S. No. 161 Of 1948 Pltfs claim an injunction directing the Defts to remove the telephone lines from over the land belonging to the Pltfs and permanently restraining the Defts from taking any telephone line ''on any portion'' of the land belonging to the Pltfs. Now Section 17 applies to a case when the objection taken is that the telephone line or post should be removed from one part of the property to another part of the same property or to a higher or lower level or altered in form. Clearly Section 17 of the Act does not provide any machinery for the settlement of a dispute as is the subject-matter Of C.S. No. 161 of 1948, between the telegraph authority and the Pltfs. As stated above, the claim in C.S. No. 161 of 1948 is not that the telephone lines should be removed from one part to another part of the property or a higher or lower level or altered in form but that the telephone lines should be removed from the property of the Plaintiffs.

Mr. Basant Krishan Khanna concedes that if the jurisdiction of the Civil Court is not impliedly barred by Section 17 of the Act there is no other provision of the Act expressly or impliedly barring the jurisdiction of the Court.

Finding that Section 17 of the Act does not govern civil suit No. 161 of 1948 I affirm the judgment of the trial Ct and dismiss the petition for revision.

Considering, however, that I affirm the judgment of the trial Ct for reasons different from those on which the judgment of the trial Ct proceeds I leave the parties to bear their own costs in these proceedings.

Parties are directed to appear in the trial Ct on the 27-11-1950.