# Akhilesh Singh & Anr v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 1172
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-13
- **Case number:** Writ-C No. 7127 of 2023
- **Bench:** Surya Prakash Kesarwani, Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhilesh-singh-anr-v-state-of-u-p-ors-50157
- **Pages:** 10

## Headnote

A. Civil Law - Electricity Act, 2003 - Section
164 - Indian Telegraph Act, 1885 - Sections
10 & 16 - Installation of 33 KV electric line -
Threat to life and personal liberty - Demand
of Rs. 29,77,848/- by the respondent for
removal of the electric line - Legality
challenged
-
No
compensation
for
installation of the electric line was paid to the
owners of the land - Effect - Held, since no
compensation was paid to the owners of the
land for installation of the electric line in
question, therefore, no amount was required
to be deposited by the petitioners or other
affected persons in terms of Section 17 of the
Act, 1885 for removal of the electricity line in
question - Demand of Rs. 29,77,848/- or
revised demand of Rs. 3578595/- issued by
the respondent no. 2 for removal of the
electricity line in question, was without
authority of law. (Para 17 and 18)

B. Constitution of India,1950 - Article 226 -
Writ - Nature and Scope - Alternative
remedy - Exceptions - When writ power can
be exercised even when alternative remedy
is available - Held, Article 226 of the
Constitution of India confers very vide
powers on High Court to issue writs but this
power is discretionary and the High Court
may refuse to exercise the discretion, if it is
satisfied that the aggrieved person has
adequate or suitable remedy elsewhere. It is
a rule of discretion and not rule of
compulsion or the rule of law - High Court
laid down eight exception to the rule of
alternative remedy: (i) Where there is
complete lack of jurisdiction in the officer or
authority to take the action or to pass the
order impugned; (ii) Where vires of an Act,
Rules, Notification or any of its provisions has
been challenged; (iii) Where an order
prejudicial to the writ petitioner has been
passed in violation of principles of natural
justice; (iv) Where enforcement of any
fundamental right is sought by the petitioner;
(v) Where procedure required for decision
has not been adopted; (vi) Where Tax is
levied without authority of law; (vii) Where
decision is an abuse of process of law'; (viii)
Where palpable injustice shall be caused to
the petitioner, if he is forced to adopt
remedies under the statute for enforcement
of any fundamental rights guaranteed under
the Constitution of India. (Para 20)
5 All. Akhilesh Singh & Anr. Vs. State of U.P. & Ors.
1173
Writ petition allowed. (E-1)

List of Cases cited:

## Text

1172 INDIAN LAW REPORTS ALLAHABAD SERIES
finalized, leaves no doubt in my mind that
compounding is not permissible in the
present case and, therefore, the impugned
order
remanding
the
matter
to
the
Development Authority for deciding the
compounding issue is unsustainable and
contrary to factual and legal position well
established on record.

53. The writ petition, therefore,
succeeds and is allowed.

54. The order impugned dated
07.01.2016
passed
by
the
State
Government in Revision No.33 of 2012
(Smt. Lakshmi Singh v. Allahabad
Development Authority & Ors.) is
hereby quashed.

55. Necessary consequences pursuant
to the quashing of the said order would
follow.
----------
(2023) 5 ILRA 1172
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.04.2023

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Writ-C No. 7127 of 2023

Akhilesh Singh & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ajay Pandey

Counsel for the Respondents:
C.S.C., Sri Narendra Kumar Tiwari

A. Civil Law - Electricity Act, 2003 - Section
164 - Indian Telegraph Act, 1885 - Sections
10 & 16 - Installation of 33 KV electric line -
Threat to life and personal liberty - Demand
of Rs. 29,77,848/- by the respondent for
removal of the electric line - Legality
challenged
-
No
compensation
for
installation of the electric line was paid to the
owners of the land - Effect - Held, since no
compensation was paid to the owners of the
land for installation of the electric line in
question, therefore, no amount was required
to be deposited by the petitioners or other
affected persons in terms of Section 17 of the
Act, 1885 for removal of the electricity line in
question - Demand of Rs. 29,77,848/- or
revised demand of Rs. 3578595/- issued by
the respondent no. 2 for removal of the
electricity line in question, was without
authority of law. (Para 17 and 18)

B. Constitution of India,1950 - Article 226 -
Writ - Nature and Scope - Alternative
remedy - Exceptions - When writ power can
be exercised even when alternative remedy
is available - Held, Article 226 of the
Constitution of India confers very vide
powers on High Court to issue writs but this
power is discretionary and the High Court
may refuse to exercise the discretion, if it is
satisfied that the aggrieved person has
adequate or suitable remedy elsewhere. It is
a rule of discretion and not rule of
compulsion or the rule of law - High Court
laid down eight exception to the rule of
alternative remedy: (i) Where there is
complete lack of jurisdiction in the officer or
authority to take the action or to pass the
order impugned; (ii) Where vires of an Act,
Rules, Notification or any of its provisions has
been challenged; (iii) Where an order
prejudicial to the writ petitioner has been
passed in violation of principles of natural
justice; (iv) Where enforcement of any
fundamental right is sought by the petitioner;
(v) Where procedure required for decision
has not been adopted; (vi) Where Tax is
levied without authority of law; (vii) Where
decision is an abuse of process of law'; (viii)
Where palpable injustice shall be caused to
the petitioner, if he is forced to adopt
remedies under the statute for enforcement
of any fundamental rights guaranteed under
the Constitution of India. (Para 20)
5 All. Akhilesh Singh & Anr. Vs. State of U.P. & Ors.
1173
Writ petition allowed. (E-1)

List of Cases cited:

1. Civil Misc. Writ Petition ( Tax) No. 255 of
2012; M/s Shree Bhawani Paper Mills Ltd. Vs St.
of U.P. & anr.decided on 10.09.2015

2. Himmatlal Harilal Mehta Vs St. of M. P., AIR
1954 SC 403

3. Collector of Customs Vs Ramchand Sobhraj
Wadhwani; AIR 1961 SC 1506

4. Collector Of Customs & Excise ,Cochin & ors.
Vss A. S. Bava; AIR 1968 SC 13

5. Dr. Smt. Kuntesh Gupta Vs Management Of
Hindu Kanya Mahavidyalaya

6. L.K. Verma Vs HMT Ltd. & anr.; (2006) 2 SCC
269

7. M.P. St. Agro Industries Development Corpn.
Ltd. & anr. Vs Jahan Khan; (2007) 10 SCC 88

8. Dhampur Sugar Mills Ltd. Vs St. of U.P. &
ors.; (2007) 8 SCC 338

9. BCPP Mazdoor Sangh Vs NTPC; (2007) 14
SCC 234 (para 19)

10. Rajasthan St. Electricity Board Vs U.O.I.;
(2008) 5 SCC 632 (para 3)

11. Mumtaz Post Graduate Degree College Vs
University of Lucknow; (2009) 2 SCC 630 (para
22 and 23)

12. Godrej Sara Lee Limited Vs Assistant
Commissioner (AA); (2009) 14 SCC 338.
14

13. U.O.I.Vs Mangal Textile Mills (I) (P) Ltd.;
(2010) 14 SCC 553 (paras 6,7,10 and 12)

14. U.O.I.Vs Tantia Construction (P) Ltd.;
(2011) 5 SCC 697

15. Southern Electricity Supply Co. of Orissa Ltd.
Vs Sri Seetaram Rice Mill, (2012) 2 SCC 108
(paras 79,80,81,82,86,87 and 88)

16. St. of M.P. Vs Sanjay Nagaich; (2013) 7 SCC
25 (para 34,35,38,39)

17. St. of H.P. Vs Gujarat Ambuja Cement Ltd.;
(2005) 6 SCC 499 (para 11 to 19)

18. Star Paper Mills Ltd. Vs St. of U.P. & ors.; JT
(2006) 12 SC 92

19. St. of Tripura Vs Manoranjan Chakraborty;
(2001) 10 SCC 740 (para 4)

20. Paradip Port Trust Vs Sales Tax Officer &
ors.; (1998) 4SCC 90

21. Feldohf Auto & Gas Industries Ltd. Vs
U.O.I.(1998) 9 SCC 710

22. Isha Beebi Vs Tax Recovery Officer; (1976)
1 SCC 70 (para 5)

23. Whirlpool Corporation Vs Registrar of
Trademarks; (1998) 8 SCC 1

24. Guruvayur Devasworn Managing Committee
Vs C.K. Rajan; (2003) 7 SCC 546 (para 67,68)

25. U.O.I. & ors. Vs Major General Shri Kant
Sharma; (2015) 6 SCC 773

(Delivered by Hon'ble Surya Prakash
Kesarwani, J. & Hon'ble Anish Kumar
Gupta, J.)

1. Heard Sri Ajay Pandey, learned
counsel for the petitioners, Sri Rajiv Gupta,
learned Additional Chief Standing Counsel
for the respondent Nos. 1 & 3 and Sri
Narendra Kumar Tiwari, learned counsel
for the respondent no.2.

2. This writ petition has been filed
praying for the following relief :

"(I) Issue, a writ order or direction in
the nature of mandamus and commanding
the
respondent
no.2
to
remove
the
electricity cable of 33 K.V. feeder from the
houses of the petitioners situate at
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
Manjhanpur
District
Kaushambi
in
compliance of order dated 18.07.2018
passed by respondent no.2."

3. On 06.04.2023, this court passed a
detailed order and directed the respondent
no.2 to file a counter affidavit by means of
his personal affidavit. The respondent no.2
was further directed to answer specifically
the following questions:

(i) Whether any compensation was
paid to land owners while errecting the
electric line in question?

(ii) If answer to the question no.(i) is
in
affirmative,
then
the
amount
of
compensation paid, be disclosed.

(iii) Under what authority of law, the
respondent no.2 has demanded a sum of
Rs.35,78,595/- as a shifting charge to shift
33 KV Electric line in question?

4.

Despite
time
granted
the
respondent nos. 1 & 3 have neither filed
counter affidavit nor prayed for further
time.

5. In compliance to the aforesaid
order dated 06.04.2023, the respondent
no.2 has filed today the counter affidavit by
means of his personal affidavit dated
12.04.2023, which is taken on record.

Facts :

6. Briefly stated undisputed facts of
the present case are that the petitioners are
the owner of the land over which a 33 KV
electric line was installed by the respondent
no.2. As per own case of the respondents,
total 81 persons including the petitioners
are affected by the aforesaid 33 KV electric
line which according to the respondent no.2
was installed in the year 1995, without
payment of any compensation in terms of
the provisions of Section 164 of the
Electricity Act, 2003 read with Sections 10
and 16 of the Indian Telegraph Act, 1885
(hereinafter referred to as "the Act, 1885").
Grievance of the petitioners is that the
aforesaid electricity line running between
Osha Crossing and District Hospital, is
passing over the land/houses of 81 persons
including the petitioners causing serious
threat to life and property. The petitioners
and other affected persons have moved an
application before the respondents for
shifting of the line. An order dated
18.07.2018 was passed by the respondent
no.3
on
the
basis
of
estimate
of
Rs.29,77,847/- as shifting charges for
shifting of the aforesaid electricity line.
However, by order dated 26.05.2022 the
respondent no.2 i.e. Executive Engineer
revised the estimate and required deposit of
Rs.35,78,595/- for shifting of the aforesaid
electric line. The petitioners and two other
affected
persons
under
compulsion,
deposited the proportionate amount while
remaining persons did not deposit the
amount. Under the circumstances, the
aforesaid electric line has not been shifted
due to non deposit of shifting charges.

7. Aggrieved, the petitioners have
filed the present writ petition praying for
the relief aforequoted.

Submissions :

8. Learned counsel for the petitioners
submits that the petitioners are not liable to
deposit any amount, as no compensation
was paid to the land owners while erecting
the electric line in question. He submits
that once the respondents have themselves
passed the order for shifting of the line,
they can not delay shifting of electric line
until the demand of charges for shifting of
electric line is paid by all the affected
5 All. Akhilesh Singh & Anr. Vs. State of U.P. & Ors.
1175
persons. He submits that action of the
respondents is in breach of the provisions
of the Electricity Act, 2003 read with the
Indian Telegraph Act, 1885.

9. Sri Narendra Kumar Tiwari,
learned counsel for the respondent no.2
submits that the respondents are ready to
shift the electric line provided all affected
persons deposit the demanded amount of
Rs.35,78,595/-. He submits that in the
event petitioners are aggrieved, they have
an alternative remedy to challenge the
order of the District Magistrate, dated
18.07.2018 read with communication of the
Executive Engineer, dated 26.05.2022,
under Rule 3(3) of the Works of Lincensees
Rules, 2006.

10. We have carefully considered the
submissions of learned counsels for the
parties and perused the record of the writ
petition and counter affidavit by means of
personal affidavit filed today by the
respondent no.2. In paragraphs 4 to 9 of the
counter affidavit, the respondent no.2 has
stated as under :

"4. That, before giving parawise reply
it is pertinent to point out certain facts that
the 33 KV Electricity line has been
installed in year 1995. No compensation
has been paid to the land owners in
respect
to
installation
of
Electricity
overhead lines.

5. That, the Electricity line has been
installed and poles were erected upon the
land of bhumidhars. The survey of
installation was done but no objection was
raised by any of the land owners. The
licensee has exercised the power conferred
under section 164 of the Electricity Act,
2003 read with the provisions of Indian
Telegraph Act, 1885
to
install
the
overhead Electricity line. The Copy of The
Indian Telegraph Act, 1885 is being filed
herewith and marked as ANNEXURE
NO.CA-1 to this affidavit.

6. That, no objection has been filed by
any of the land owners against installation
of electricity line and erecting of poles
since 1995. The section 3 (1) of the Works
and licensing Rules 2006 provides that in
case of objection of any of the land
owner/occupier during survey or carrying
out of work of installation of Electricity
line, the licensee will take permission in
writing from District Magistrate subject of
payment of compensation or rent as the
case may be. In present case prayer of
shifting of 33 KV Electricity line has been
requested. It is under jurisdiction of the
district magistrate to consider such request.
The Copy of the Works and licensing Rules
2006 is being filed herewith and marked as
ANNEXURE NO.CA-2 to this affidavit.

7. That, answering respondent has not
demanded any amount from any of
residents but communicated to them in
pursuance to the order dated 18-07-2018
passed by the district Magistrate while
considering their representation. None of
the residents has challenged the legality of
the
aforesaid
order
of
the
District
Magistrate.
The
houses
have
been
constructed in recent years while electricity
line was installed in year 1995.

8. That, the District Magistrate
Kaushambi passed speaking order on 1807-2018 directing answering respondent to
prepare list of residents and direct them to
deposit estimated cost in proportion to
remove the 33 KV Electricity line. The list
of residents was jointly prepared by the
Tehsildar and Junior Engineer of the
Corporation jointly on 10-05-2022.

9.
That,
the
order
of
District
Magistrate could not be complied as the
proportional amount directed to deposit
has not been deposited in the joint account
1176 INDIAN LAW REPORTS ALLAHABAD SERIES
of Tehsildar and answering respondent.
The District Magistrate has directed by
speaking order on 18-07-2018 that list of
affected person be prepared and further
directed such residents to proportionally
deposit the estimated cost of shifting."

11. From perusal of the own stand taken
by the respondent no.2, it is undisputed that
33 KV electricity line was installed in the
year,
1995
without
payment
of
any
compensation to the land owners. It has also
been admitted by the respondent no.2 that the
licensee has exercised the powers conferred
under Section 164 of the Electricity Act, 2003
read with the provisions of the Indian
Telegraphic Act, 1885 to install the overhead
electric line in question. Averment made in
paragraph 7 of the counter affidavit filed by
the respondent no.2 that he has not demanded
any amount but communicated them in
pursuance of the order dated 18.07.2018,
passed
by
the
District
Magistrate,
Kaushambi, is incorrect and contrary to own
stand taken by the respondent no.3 that the
residents have deposited process fees of
Rs.1,000/- on 21.03.2017 and thereafter the
Executive Engineer vide letter no.3686, dated
11.08.2017 apprised them that for shifting of
the electric line in question, as per rules and
conditions, a sum of Rs.29,77,848/- be
deposited with the department so that shifting
work may be completed.

12.

The
aforesaid
facts
are
incorporated in the order of the District
Magistrate dated 18.07.2018. That apart, it
has also been mentioned in the aforesaid
order of the District Magistrate that the
electric line in question is liable to be
shifted in public interest, otherwise, it may
cause loss of life at any time. The order
dated 18.07.2018, passed by the District
Magistrate, Kaushambi, is reproduced
below :

न्यायालय तजलातधकार्री कौशाम्बी।

संख्या - सन् 2018

अन्तगशत धािा - जवजवध

शत्रुघन जमश्र पुत्र नागेश दि जमश्र

जनवासी- मंझनपुि जनपद कौशाम्बी

बनाम

1- उप खण्ड अजधकािी (जवद्युत)

मंझनपुि जनपद कौशाम्बी

2- अजधभार्ी अजभयन्ता (जवद्युत)

कौशाम्बी।

"आदेश"

परिवादी ने जवजवध प्राथशना पत्र प्रस्तुत किते हुए कहा है जक
ओसा जस्थत मण्डी परिर्द के सामने आवासीय भवनों के ऊपि से
जखिी 11000 बोल्ट के जवद्युत तािों का जनजहत में हटाना
आवश्यक है। अन्यथा जकसी भी समय कोई घटना घजटत हो सकती
है, क्योंजक जवद्युत तािो के नीिे लगभग 50 से अजधक आवास
जनजमशत है।

आवेदक के प्राथशना पत्र के क्रम में जवपक्षी को नोजटस भेजी
गयी। बाद तामीला जवपक्षी हाजजि अदालत आकि कहा जक आवेदक
जशजफ्टंग िाजश बावत प्रासेस फीस के रूप में 1000/- कायाशलय में
जमा कि, जजससे हटाने में आने वाली सम्भाजवत खिश का आकलन
जवभाग कि सके। आवेदक ने तदनांक 21.03.2017 को
1000/- रू० प्रासेस फीस जमा कि जदया, तजसके पश्चाि तदनांक
11.08.17 को अजधशार्ी अजभयन्ता ने अपने पत्राक - 3686
के माध्यम से अवगत किाया गया जक प्रश्नगत 33 के०वी० लाइन
हटाने में जनयम व शिो के आधार्र पर्र 2977848.00 रू०
तवभाग में आवेदक जमा कर्रे, िातक को काया को पूणा तकया
जा सके।

आवेदक ने जदनांक 01.06.2018 को प्राथशना पत्र प्रस्तुत
किते हुए कहा जक लम्बे अिसे से मामला जविािाधीन है। मामले को
गुणदोर् पि जनस्तािण शीघ्र जकया जाय। प्राथशना पत्र का संज्ञान लेते
हुए सुनवाई की गयी। सुनवाई के दौर्रान तवपक्षी के तवभागीय
पैर्रोकार्र भी उपतस्थि र्रहे।

प्रकर्रण में पूवा में भी तदनांक 28.4.2017 को प्रबन्ध
तनदेशक पूवाांचल तवद्युि तविर्रण तनगम तलतमटे वार्राणसी को
न्यायालय द्वार्रा पत्र प्रेतिि कर्रिे हुए यह र्राय व्यक्त की गयी थी
तक प्रश्नगि मामले में आवासीय भवनों के सामने र्राजकीय
अतितथगृह तस्थि है जहां पर्र शासन के प्रतितनधी व
उच्चातधकार्री प्रायैः तनवास कर्रिे है। नव सृतजि जनपद में ऐसे
बहुिायि आवासीय भवन प्रभातवि है। जनतहि व लोकतहि में
5 All. Akhilesh Singh & Anr. Vs. State of U.P. & Ors.
1177
स्वयमेव कायावाही कर्रना आपेतक्षि है। अन्यथा तकसी भी
समय जनहातन हो सकिी है। जकन्तु जवपक्षी द्वािा कोई कायशवाही
आज तक अग्रेति संिाजलत नही की गयी। आवेदक के अनुसाि
जवपक्षी द्वािा तैयाि की गयी प्राकलन रिपोटश में जो स्टीमेट के अनुसाि
धन जमा किना है, जो अत्यजधक है औि जकसी एक व्यजक्त द्वािा
इतनी लम्बी धनिाजश नही जमा जकया जा सकता। आवेदक के तको
में बल प्रतीत होता है। ऐसी जस्थजत में जवपक्षी को िाजहए था जक
प्राकलन रिपोटश के अनुसाि जो भी धनिाजश जमा होना है उसे प्रश्नगत
जवद्युत पािेर्ण लाइन के नीिे स्थाजपत भवन स्वाजमयों से जहस्सानुसाि
धनिाजश जमा किाकि जनमाशण जकया जा सकता था।

अतः मैं इस जनष्कर्श पि पहुिता ह ं जक प्राकलन रिपोटश में
प्रस्ताजवत धनिाजश मु० 2977848.00 रू० जमा किाने हेतु
जजला जिजकत्सालय कौशाम्बी से ओसा िौिाहा तक के प्रभाजवत
भवन स्वाजमयों का जिन्हीकिण किते हुए सूिीबद्ध पि समानुपाजतक
दृजष्ट से धनिाजश जमा किाना उजित होगा।

अतः आदेश हुआ जक अजधशार्ी अजभयन्ता (जवद्युत)
कौशाम्बी को आदेजशत जकया जाता है जक जजला जिजकत्सालय
कौशाम्बी से ओसा िौिाहा तक 33 के०वी० फीडि को पािेजर्त
जवद्युत लाइन के नीिे जस्थत भवन स्वाजमयों का जिन्हीकिण किाया
जाय। सूिीबद्ध किने के पश्चात इन भवन स्वाजमयों से आनुपाजतक
जसद्धान्त से प्राक्लन रिपोटश में प्रस्ताजवत धनिाजश को30 जदन के
अन्दि जमा किाकि जवद्युत लाइन को समुजित स्थल पि स्थाजपत
जकया जाय, जजससे जकसी भी प्रकाि की जन - धन हाजन से बिा जा
सके। प्रगजत आख्या जदनांक 07.08.2018 तक अधोहस्ताक्षिी के
पास प्रेजर्त की जाय।

जदनांक 18.7.2018

Sd.

(मनीर् कुमाि वमाश)

जजलाजधकािी

कौशाम्बी"

13. After the District Magistrate,
Kaushambi, passed the aforequoted order,
dated 18.07.2018, the respondent No.2
passed the revised estimate and intimated it
to the respondent no.3 by his letter
No.2916, dated 26.05.2022 as under :

"उपिोक्त के सम्बन्ध में आपको अवगत किाना है जक
तहसील जदवस मंझनपुि मेंां जदनांक 16.4.2022 को प्रस्तुत
प्राथशना पत्र में अधोहस्ताक्षिी को जनदेजशत जकया गया था जक जदनांक
18.07.2018 को मा० न्यायालय जजलाजधकािी कौशाम्बी के
आदेश के अनुपालन में प्राक्कलन आख्या में प्रस्िातवि धनर्रातश
रू० 2977847.00 पुनैः संशोतधि धनर्रातश रू०
3578595.00 वसूली हेिु 33 के०वी० लाइन के नीचे
ओसा चौर्राहे से तजला अस्पिाल के बीच प्रभातवि भुखण्
स्वामी व भवन स्वातमयों को तचतन्हि तकया गया मा०
तहसीलदाि महोदय मंझनपुि की आख्या के अनुसाि कुल 81
भूखण्ड एवं भवन स्वामी है। (सूिी संलग्ऩ है)

आपको सूिनाथश एवं आवश्यक कायशवाही हेतु प्रेजर्त है।"

14. Compelled with the situation,
each of the petitioners have deposited the
proportionate sum of Rs.44200/- with the
respondent
no.2
on
15.06.2022
and
24.08.2022 respectively. However, electric
line could not be shifted for the reason that
some of the residents have not deposited
the amount.

15. On the admitted facts of the case
and in the light of the relevant provisions of
law, grievance of the petitioners need to be
examined. Therefore, for ready reference
the provisions of Section 164 of the
Electricity Act, 2003 and Section 17 of the
Indian Telegraph Act, 1885 are reproduced
below :

Electric Act, 2003

"164. Exercise of powers of Telegraph
Authority in certain cases.-The Appropriate
Government may, by order in writing, for
the placing of electric lines or electrical
plant for the transmission of electricity or
for the purpose of telephonic or telegraphic
communications necessary for the proper
co-ordination of works, confer upon any
public officer, licensee or any other person
engaged in the business of supplying
electricity under this Act, subject to such
conditions and restrictions, if any, as the
Appropriate Government may think fit to
impose and to the provisions of the Indian
Telegraph Act, 1885, any of the powers
which the telegraph authority possesses
under the Act with respect to the placing of
1178 INDIAN LAW REPORTS ALLAHABAD SERIES
telegraph lines and posts for the purposes
of a telegraph established or maintained,
by the Government or to be so established
or maintained."

Indian Telegraph Act, 1885

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 form, he may
require the telegraph authority to remove
or alter the line or 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 expense 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; and the order so made shall be
final."

16. In paragraph 4 of the counter
affidavit,
the
respondent
No.2
has
specifically admitted that no compensation
was paid to the land owners in respect of
the installation of 33 KV overhead electric
line. Thus, it is admitted to the respondents
that while installing the electric line in
question, no compensation was paid to the
owners. It is also admitted to the
respondents that the aforesaid electric line
was installed in exercise of powers
conferred under Section 164 of the
Electricity Act, 2003 read with the Act,
1885. Section 17 of the Act, 1885 provides
for removal or alteration of telegraph line
or post on property other than that of a
local authority. Sub section (1) of Section
17 of the Act, 1885 specifically provides
that under the provisions of the Act, 1885 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.

17. Thus, while making requisition for
the removal of the electricity line in
question, the petitioners were required to
deposit the requisite amount to defray the
expenses of the removal or alteration or
half of the amount paid as compensation,
whichever may be the smaller sum. Since,
as per admitted case of the respondent
5 All. Akhilesh Singh & Anr. Vs. State of U.P. & Ors.
1179
no.2, no compensation was paid to the
owners of the land for installation of the
electric line in question, therefore, no
amount was required to be deposited by
the petitioners or other affected persons
in terms of Section 17 of the Act, 1885 for
removal of the electricity line in question.
Under the circumstances, the demand of
Rs.29,77,848/- or revised demand of
Rs.3578595/- issued by the respondent no.2
for removal of the electricity line in
question, was without authority of law.

18. Under the circumstances, the
order of the District Magistrate, dated
18.07.2018 to the extent enforcing the
demand
of
Rs.29,77,848/-
by
the
respondent no.2 for removal of the electric
line in question, was wholly without
authority of law.

19. The submissions of learned
counsel for the respondent no.2 that the
petitioners have an alternative remedy
under Rule 3 of the Works of Lincensees
Rules, 2006, has no substance inasmuch as
the demand made by the respondents of
Rs.29,77,848/- or the revised demand of
Rs.35,78,595/-
for
removal
of
the
electricity line in question is without
authority of law. The jurisdiction of this
Court under Article 226 of the Constitution
of India is not barred merely on account of
availability of an alternative remedy. The
law in this regard is well settled. Suffice is
to refer a judgment of this Court dated
10.09.2015 in Civil Misc. Writ Petition (
Tax) No. 255 of 2012 (M/s Shree
Bhawani Paper Mills Ltd. Vs. State Of
U.P. and Another).

20. Article 226 of the Constitution of
India confers very vide powers on High
Court to issue writs but this power is
discretionary and the High Court may
refuse to exercise the discretion, if it is
satisfied that the aggrieved person has
adequate or suitable remedy elsewhere.
It is a rule of discretion and not rule of
compulsion or the rule of law. Even
though, there may be an alternative
remedy,
yet
the
High
Court
may
entertain a writ petition depending upon
the facts of each case. It is neither
possible nor desirable to lay down
inflexible rule to be applied rigidly for
entertaining
a
writ
petition.
Some
exceptions to the rule of alternative
remedy, as settled by the Hon'ble
Supreme Court; are as under:-

(i) Where there is complete lack of
jurisdiction in the officer or authority to
take the action or to pass the order
impugned.

(ii) Where vires of an Act, Rules,
Notification or any of its provisions has
been challenged.

(iii) Where an order prejudicial to the
writ petitioner has been passed in violation
of principles of natural justice.

(iv)
Where
enforcement
of
any
fundamental right is sought by the
petitioner.

(v) Where procedure required for
decision has not been adopted.

(vi) Where Tax is levied without
authority of law.

(vii) Where decision is an abuse of
process of law.

(viii) Where palpable injustice shall be
caused to the petitioner, if he is forced to
adopt remedies under the statute for
enforcement of any fundamental rights
guaranteed under the Constitution of India.

(ix) Where a decision or policy
decision has already been taken by the
Government rendering the remedy of
appeal to be an empty formality or futile
attempt.
1180 INDIAN LAW REPORTS ALLAHABAD SERIES

(x) Where there is no factual dispute
but merely a pure question of law or
interpretation is involved.

21.

The
above
principles
are
supported by law laid down by the Hon'ble
Supreme Court in Himmatlal Harilal
Mehta v. State of Madhya Pradesh, AIR
1954 SC 403, Collector of Customs v.
Ramchand Sobhraj Wadhwani, AIR
1961 SC 1506, Collector Of Customs &
Excise ,Cochin & Ors. vs A. S. Bava, AIR
1968 SC 13, Dr. Smt. Kuntesh Gupta vs
Management
Of
Hindu
Kanya
Mahavidyalaya, L.K. Verma v. HMT
Ltd. and anr., (2006) 2 SCC 269, Paras
13 and 20, M.P. State Agro Industries
Development Corpn. Ltd. & Anr. vs.
Jahan Khan (2007) 10 SCC 88 para 12,
Dhampur Sugar Mills Ltd. v. State of
U.P. and others (2007) 8 SCC 338, BCPP
Mazdoor Sangh Vs. NTPC (2007) 14
SCC 234 (para 19), Rajasthan State
Electricity Board v. Union of India,
(2008) 5 SCC 632 (para 3), Mumtaz Post
Graduate Degree College Vs. University
of Lucknow,(2009) 2 SCC 630 (para 22
and 23), Godrej Sara Lee Limited v.
Assistant Commissioner (AA), (2009) 14
SCC 338. 14, Union of India v. Mangal
Textile Mills (I) (P) Ltd., (2010) 14 SCC
553 (paras 6,7,10 and 12), Union of India
v. Tantia Construction (P) Ltd., (2011) 5
SCC 697, Southern Electricity Supply
Co. of Orissa Ltd. v. Sri Seetaram Rice
Mill,
(2012)
2
SCC
108
(paras
79,80,81,82,86,87 and 88), State of M.P.
Vs. Sanjay Nagaich (2013) 7 SCC 25
(para 34,35,38,39), State of H.P. vs.
Gujarat Ambuja Cement Ltd., (2005) 6
SCC 499 (para 11 to 19), Star Paper
Mills Ltd. Vs. State of U.P. and others,
JT (2006) 12 SC 92, State of Tripura vs.
Manoranjan Chakraborty, (2001) 10
SCC 740 para 4; Paradip Port Trust vs
Sales Tax Officer and Ors. (1998) 4 SCC
90, Feldohf Auto & Gas Industries Ltd.
Vs. Union of India (1998) 9 SCC 710;
Isha Beebi Vs. Tax Recovery Officer
(1976) 1 SCC 70 (para 5); Whirlpool
Corporation
Vs.
Registrar
of
Trademarks (1998) 8 SCC 1; Guruvayur
Devasworn Managing Committee Vs
C.K. Rajan (2003) 7 SCC 546 (para
67,68) .

22. In the case of Union of India &
others Vs. Major General Shri Kant
Sharma, (2015) 6 SCC 773 Hon'ble
Supreme Court has held that it is a settled
canon of law that the High Court should
not normally interfere in exercise of its
jurisdiction under Article 226 of the
Constitution of India where statutory
alternative remedy is available but it is
equally settled that this canon of law is not
free of exceptions. The Courts, including
the Supreme Court, have taken the view
that statutory remedy, if provided under a
specific law, would impliedly oust the
jurisdiction of the civil courts. The High
Court in exercise of its extraordinary
jurisdiction under Article 226 of the
Constitution of India can entertain writ or
appropriate proceedings despite availability
of an alternative remedy. This jurisdiction,
the High Court would exercise with some
circumspection
in
exceptional
cases,
particularly, where the cases involve a pure
question of law or vires of an Act are
challenged.

23. In view of the settled law, as
discussed above, we do not find any
substance in the preliminary objection
raised
by
learned
counsel
for
the
respondent no.2 regarding the availability
of alternative remedy and, consequently,
the objection raised by learned counsel for
the respondent no.2 is rejected.
5 All. M/s Jagran Prakashan Ltd. Vs. Shri Amar Kumar Singh & Ors.
1181

24. Respondent no.2 is directed to
remove the electricity line in question
pursuant
to
their
own
decision,
expeditiously,
preferably
within
three
months from the date of production of a
certified copy of this order, without
demanding any amount from the petitioners
or
other
affected
persons
towards
removal/shifting charges of the electricity
line in question. Liberty is granted to the
petitioners to apply before the respondent
No.3 for refund of the amount in terms of
this judgment.

25. With the aforesaid directions, the
writ petition is allowed to the extent
indicated above.
----------
(2023) 5 ILRA 1181
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.04.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ-C No. 10419 of 2023
and
Writ-C No. 23212 of 2021

M/s Jagran Prakashan Ltd. ...Petitioner
Versus
Shri Amar Kumar Singh & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Chandra Bhan Gupta, Sri Sanjay Kaushal (Sr.
Advocate)

Counsel for the Respondents:
C.S.C., Sri Man Mohan Singh, Sri Nikhil Agarwal

A. Labour law - Working Journalists and
Other Newspaper Employees (Condition of
Service) and Miscellaneous Provisions Act,
1955 - Sections 2(d), 9, 13, 13-A, 13-C &
16 - Wages, emoluments & ors. benefits -
Entitlement of Non-journalist newspaper
employees - Not extending the other
benefits, which is provided to working
Journalists,
to
the
Non-journalist
newspaper
employees
-
Legality
challenged - Enforceability of agreement,
extent of - Held, on a conjoint reading of
Section 13 and 16 of the Act, it is clear
that any agreement or contract of service,
inconsistent with the provisions of law will
not govern the rights in between the
parties - The benefits that flow from the
Act, namely 'wages' as defined under the
Act, can be modified by an agreement only
if the same are better than the one
prescribed under the Act and in no case,
any
agreement
which
prescribes the
benefits of wages or emoluments less
than the one notified and prescribed by
the Board is barred by virtue of Section 13
of the Act. (Para 27, 28 and 29)

B. Interpretation of Statute - Rules of
Harmonious Construction - Applicability -
Socio beneficial legislation - It's manner
of interpretation - The Act, a piece of
socio beneficial legislation enacted with a
view
to
give
reasonable
working
conditions
to
the
employees
of
the
newspaper establishment, needs to be
interpreted in a manner, which leads to
achieve the purpose for which the Act was
enacted. (Para 31 and 32)

Writ petition dismissed. (E-1)

List of Cases cited:

1.
Kasturi
and
Sons
(Pvt.)
Ltd.
Vs
Salivateswaran, AIR 1958 SC 507

2. Abp Pvt. Ltd. Vs U.O.I. & ors.; (2014) 3 SCC
327

3. Avishek Raja Vs Sanjay Gupta (2017) 8 SCC 435

4. Commissioner Of Income Tax Vs M/S.
Hindustan Bulk Carriers; (2003) 3 SCC 57

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. After hearing the matter, this Court
had called for the records of Writ-C