Oral Judgment: (Avinash G. Gharote, J.)1. Heard. Rule. Rule made returnable forthwith. Heard the learned Counsel for the parties finally.2. By the present petition challenge is raised to the communication dated 31/5/2019, issued by the respondent no.3, refusing to grant compensation to the petitioner in respect of the towers erected on the land of Survey No.68.3. The facts leading to the present petition are as under:-(a) A 132 KV transmission line was proposed to be laid down for transmission of electricity from Khaperkheda to Butibori. The line was sanctioned and the work was commenced some time in the year 2007 - 2008. Two towers namely tower Nos.16 and 17 were proposed to be laid in the land of Survey No.68, which land, as per the revenue records, was shown to be owned by Mrs. Vijayalaxmi Kinkhede and others, as a result of which, a notice was issued to them informing that the towers for the transmission line, would be erected in the land of Survey No.68.(b) Being aggrieved by the above communication, Smt. Vijyalaxmi Kinkhede and others filed Writ Petition No.260/2008 which came to be withdrawn on 17/3/2008 on the ground that the petitioners therein were willing to pay extra amount towards expenditure required for diversion of transmission line and the diverted route would be from the boundary of Survey No.68.(c) Accordingly as per the request of Smt. Vijayalaxmi Kinkhede and others the respondent No.3 quantified the expenditure required for diversion of the transmission line, at Rs.42,43,872/- and a demand-note dated 2/7/2008 in this respect was issued to Mrs. Vijayalaxmi Kinkhede and others, however, there was no response. Further reminders dated 30/7/2008 and 18/8/2008, also did not elicit any response, or payment.(d) As the work was getting delayed, excavation work for the foundation of the two towers in Survey No.68 was commenced on 22/11/2008, when obstruction was caused, as a result of which, the respondent no.3, approached the District Magistrate under section 16 (1) of the Indian Telegraph Act, 1885 (Telegraph Act, 1885 hereinafter), which was registered as Case No. MRC – 81/3/08 in which, Mrs Vijayalaxmi Kinkhede and others were made non-applicants.(e) Consequent to notice being received, Mrs. Vijayalaxmi Kinkhede intimated that the part of the property admeasuring 24.75 acres including the area in which the two towers were proposed to be erected, had been purchased by M/s Milestone Buildspace Private Ltd. Notices were issued to the purchaser, whereupon M/s Milestone Buildspace Private Ltd. appeared and stated that its name had been now changed to M/s Harihar Buildspace Private Limited, i.e., petitioner. The area admeasuring 24.74 acres out of the land of Survey No.68 as purchased by the present petitioner was renumbered as Survey Nos.68/2 to 68/5, whereas the area as retained by the original landowners Mrs. Vijayalaxmi Kinkhede and others was renumbered as Survey No.68/1. The location Nos.16 and 17 of the two towers to be erected for the transmission line, fell within the land of Survey Nos.68/2 to 68/5, now owned by the present petitioner. This land is claimed to have been converted to non-agricultural use by way of an order passed by the collector Nagpur on 28/3/ 2007.(f) It appears that in these proceedings the District Magistrate advised the respondent no.3 that the present petitioner was not causing any obstruction, therefore, the cause to proceed, did not survive, as a result of which, the proceedings were disposed of on 2/2/2010.(g) As 90% of the work of the entire transmission line was complete except a few locations where obstructions/ resistance was caused by the land owners/occupiers, the respondent no.3 by a notice dated 5/2/2010 indicated its intention to proceed with the work as per the original plan.(h) The present petitioner, therefore, filed an application under section 17(3) of the Telegraph Act, 1885, which was numbered as Case No.4/MRC – 81–2010, seeking change of the route of the transmission line, in so far as locations of tower Nos.16 and 17 to be erected in the land of Survey Nos.68/2 to 68/5 were concerned.(i) On 26/2/2010 as the action of recommencing the work of erection of two towers at location Nos.16 and 17 was obstructed, the respondent no.3 - transmission company, filed an application under section 16 (1) of the Telegraph Act, 1885 which came to be numbered as Case No.5/MRC-81/2010.(j) It is material to note that the location of tower Nos.16 and 17 in the land of Survey Nos.68/2 to 68/5, had the effect of diagonally bisecting the entire land into two parts.(k) While proceedings before the District Magistrate were pending under the provisions of the Telegraph Act, 1885, the petitioner herein, approached the Civil Court by filing R.C.S. No.351/2010 (M/s Harihar Buildspace Private Limited .Vs. MSETCL) for a declaration and permanent injunction, in which a specific contention was raised that the existing route of the transmission line which was passing diagonally across the land of Survey Nos.68/2 to 68/5, was causing maximum damage and loss to the petitioner and therefore, a diversion of the route was claimed from the boundary of the land of Survey Nos.68/2 to 68/5, as indicated in the plan filed at Annexure-I to the suit. A relief for a direction to the defendant/respondent no.3 herein to ensure compliance with the mandate of Section 10(d) of the Telegraph Act, 1885, was also claimed. The suit was filed on 12/4/2010.(l) An application for temporary injunction was also filed in this suit, which came to be rejected on 19/6/2010, which rejection does not appear to have been challenged further.(m) In the meantime, the two applications, one filed by the petitioner under Section 17 (3) and the other by the respondent no.3 under Section 16 (1) of the Telegraph Act, 1885, came to be decided by a judgment by the District Magistrate on 20/5/2010, whereby the application for change of route as filed by the present petitioner under Section 17 (3) of the Telegraph Act 1885 (No.04/MRC-81/2010) came to be rejected, whereas the one filed by the respondent no.3 under Section 16 (1) of the Telegraph Act, 1885 [No.05/MRC-81/2010] came to be allowed, permitting the respondent no.3 to exercise the powers as a Telegraph Authority and carry out the work of erection of the towers at location Nos.16 and 17 in land of Survey Nos.68 and the present petitioner was directed not to obstruct the work of the respondent no.3. It was also directed that the respondent no.3 shall pay compensation to the present petitioner in accordance with law within a period of one month from the date of completion of the work.(n) The petitioner consequent to the rejection of the application under Section 17 (3) of the Telegraph Act, 1885 by the District Magistrate on 20/5/2010, approached the Civil Court (5th Jt. Civil Judge, Junior Division, Nagpur) in pending R.C.S. No.351/2010 and submitted an application on 22/6/2010, under Section 151 of the Code of Civil Procedure, claiming that the petitioner was ready to deposit the amount as estimated by the respondent no.3 for diversion of the route and time therefore be granted to deposit the amount with a direction to the respondent no.3 to divert the route from its original position to the route along the boundary of the land. No orders appear to have been passed on this application.(o) The petitioner, thereafter, on 15/7/2010, directly filed an application with the respondent no.3 for diversion of route from location Nos.16 and 17 in Khasra No.68, to the one as proposed by the petitioner, along the boundary of the Khasra, expressing its willingness to pay the charges for the same, which was received by the respondent no.3 on 17/7/2010, in pursuance to which the respondent no.3 on 28/7/2010 issued a demand note in the amount of Rs.42,43,872/- which amount was deposited by the petitioner, by a demand draft No.001270 dated 2/8/2010 drawn on the H.D.F.C., Nagpur in favour of the respondent no.3.(p) The location of tower Nos.16 and 17 was accordingly shifted to location Nos.15-A, 16-A, 16-B and 17-A along the boundary of Khasra No.68, as per the diversion plan given by the petitioner and the work of erection was commenced and completed between 13/9/2010 to 27/9/2010.(q) The transmission line was commissioned on 30/10/2010.(r) R.C.S. No.351/2010 filed by the petitioner, came to be withdrawn by a pursis dated 6/8/2010, though orders below Ex.1, came to be passed on 21/8/2010.(s) On 1/11/2010, the State of Maharashtra issued a Circular/Resolution according its approval for grant of compensation in respect of the damage caused on account of erection of the transmission towers to the extent the land was consumed/used by the towers, at the percentage (%) enumerated in the Government Resolution, on the yearly market value as per the ready reckoner for the concerned area.(t) From 27/9/2010, the date of completion of work of erection of towers, till 2/4/2019 nothing happened. No proceedings were initiated by the petitioner nor any communication took place between the petitioner and the respondent no.3 of any nature whatsoever.(u) On 2/4/2019 the petitioner wrote a letter to the respondent no.3, claiming that in pursuance to the direction as contained in the judgment of the District Magistrate (dated 20/5/2010), the respondent no.3 was required to pay compensation to the petitioner, within a period of one month from the date of completion of the work and as the total length of the high tension line passing through the land of Khasra No.68 was 541.76 meters and as 13.5 meters of land on both sides was to be left vacant, a total area of 14,627.52 sq. meters was affected and therefore, compensation in terms of the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (RFCTRR Act 2013 hereinafter for short) along with interest @ 18% from the date of actual completion of work till its actual payment be made. No reply appears to have been given to this letter by the respondent no.3.(v) On 4/5/2019, an right to information (R.T.I.), query (Annexure-D/page 57) appears to have been made by the petitioner, by which the details of the compensation as per the judgment of the District Magistrate dated 20/5/2010 passed in Case No.05/MRC-81/2010 were solicited.(w) The query was replied on 31/5/2019 by the Public Information Officer for the respondent no.3, wherein it was stated that the foundation work of the towers in field Survey No.68 was completed during the period 13/9/2010 to 27/9/2010 and the line had been commissioned before the Government Resolution dated 1/11/2010, therefore, land compensation towards the towers in Survey No.68 cannot be given.(x) It is this communication dated 31/5/2009 to the extent it states that compensation cannot be given is challenged in the present petition along with a prayer for directing the payment of compensation.4. It is in the above background that Shri Kothari, learned Counsel for the petitioner submits that :(a) it was obligatory upon the respondent no.3 to have awarded compensation to the petitioner for the transmission line passing through the petitioner's property and the land used for erection of the towers.(b) the judgment of the District Magistrate dated 20/5/2010 clearly directed the determination and grant of compensation, in pursuance to which the entitlement of the petitioner for compensation cannot be disputed.(c) no citizen of the country can be deprived of his immovable property without being adequately compensated for the same.(d) the respondent no.3 in its reply has admitted the entitlement of the petitioner for compensation.(e) the right to claim would begin after the work was completed and since work according to the respondent no.3 was completed before 30/10/2010 when the line was commissioned, the respondent no.3 ought to have made a determination under Section 10 (3) of the Telegraph Act, 1885 and awarded compensation.(f) the change of route under Section 17 (3) of the Telegraph Act, 1885, would not deprive the petitioner of the right to claim compensation, which survived and was in fact so directed to be determined by the District Magistrate in its judgment dated 20/5/2010.(g) the withdrawal of R.C.S. No.351/2010, by the petitioner would not amount to waiver of the right under Section 10 (d) of the Telegraph Act, 1885, as the same was never the subject matter of the suit.(h) the right under Section 10 (d) of the Telegraph Act, 1885 was an independent right available to the petitioner, contravention of which by the respondent no.3, entitled the petitioner to approach this Court in its writ jurisdiction.(i) the petitioner is clearly entitled for compensation for the loss of its land due to erection of the towers, that too under the RFCTRR Act 2013.5. Shri C.S. Kaptan, learned Senior Counsel submits :(a) that the petition is misconceived and not tenable in law.(b) even presuming otherwise, the same is hit by delay and latches which are not explained.(c) the judgment of the District Magistrate dated 20/5/2010 is no longer enforceable for the reason of change of circumstances, which have taken place consequent to the judgment, at the instance of the petitioner itself, which has rendered the judgment inoperable. The judgment permitted the respondent no.3 to erect tower Nos.16 and 17 at their original location and prevented the petitioner from causing any obstruction. The petitioner, claiming that the location Nos.16 and 17, which bisected the land into two parts, had requested for change of route at its cost and expenses, which having being accepted by the respondent no.3, the directions as contained in the judgment of District Magistrate, dated 20/5/2010, became inoperable due to change of factual position and therefore, the same was not enforceable.(d) He further contends that the change of location as per the convenience of the petitioner amounted to waiver of any right of compensation as the change was for the benefit of the petitioner and at its instance, at considerable efforts to the respondent no.3 which was required to erect additional towers along the boundary may be at the cost of the petitioner, to save the property of the petitioner from any damage.(e) the so called admissions are not admissions at all but generalized statements from which no mileage could be derived by the petitioner.(f) that Section 17 (3) of the Telegraph Act, 1885, did not confer any right upon the petitioner for change of route and the action of the respondent no.3 in accepting the request for the same was only on the condition that all the responsibility, expenses and consequences as a result of the change of route would be borne by the petitioner.He invites our attention to the request of the petitioner for change of route by its communication dated 15/7/2010 (Annexure R-3/pg.92) which did not indicate that the petitioner had made the offer by reserving his right/claim for compensation, in light of which, it was obvious that the same was given up and waived off and it was not now permissible for the petitioner to lay a claim for the same.(g) the offer of the petitioner for an alternative route was accepted as outright contribution (ORC) under which the petitioner agreed to bear the entire cost for change/diversion of route and forgo compensation.(h) the RFCTRR Act 2013, was not attracted in the matter.He, therefore, submits that the petition needs to be dismissed, with costs.6. Mrs. M.P. Munshi, learned Counsel for the respondent no.1 and Mrs. K.S. Joshi, learned Additional Government Pleader for the respondent no.2 support the arguments advanced by Shri C.S. Kaptan, learned Senior Counsel for the respondent no.3.7. At the outset, to appreciate the rival contentions, it is necessary to consider the nature of relief which is sought in the present petition. The prayer clause (a) and (b) therefore being material are reproduced as under :“(a) quash and set aside the communication issued by Respondent no.3 M/s. Maharashtra State Transmission Company Ltd through its Executive Engineer, MSETCL Nagpur Dated 31/5/2019 filed at Annexure H.(b) further be pleased to issue Writ of Mandamus or any other appropriate writ or order directing the Respondents to pay compensation along with interest since 30/10/2010 towards cost of land Adm. 14627.52 sq. mtrs. used for erection of towers on survey no.68 as per law and directed by the District Magistrate, Nagpur in its order dated 20 th May, 2010 at Annexure -B .”(emphasis supplied)8. In so far as prayer clause (a) is concerned, it is material to note that the communication/reply dated 31/5/2019 (Annexure-H/pg. 65) has been issued by the Public Information Officer of the respondent no.3 under the provisions of the Right to Information Act, 2005, in pursuance to the query made thereunder, by the petitioner vide its application dated 4/5/2019. A perusal of the application dated 4/5/2019 does not indicate, that any information was elicited in reference to the Government Resolution dated 1/11/2020. On the contrary, a specific reference was made to the judgment dated 20/5/2010 passed by the District Magistrate, Nagpur in Case No.05/MRC-81/2010, and the compensation determined as directed thereunder. The Public Information Officer of the respondent no.3, therefore, had no right/business whatsoever to refer to the Government Resolution dated 1/11/2010 and render a decision vis-a-vis its applicability and grant of compensation. Under the provisions of the Right to Information Act, 2005 the role of the Public Information Officer, has been defined in Section 5 (3) of the Right to Information Act, 2005, which for the sake of ready reference is quoted below :“5 (3) Every Central Public Information Officer or State Public Information Officer, as the case may be, shall deal with requests from persons seeking information and render reasonable assistance to the persons seeking such information.”(emphasis supplied)'Information', has been defined in Section 2 (f) of the Right to Information Act, 2005 as under:-“2 (f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”The above provisions would categorically demonstrate that the role of a Public Information Officer is restricted to deal with requests from persons, seeking information and render reasonable assistance to the persons, seeking such information and nothing else. In other words, a Public Information Officer is required to supply information as collected and collated by such officer, from the various departments, in response to the query made under the Right to Information Act, 2005, if supply of such information is permissible under the Right to Information Act, 2005. By no stretch of imagination, can it be said that the Public Information Officer is empowered to give any opinion as to applicability of the provisions of any Government Resolution or otherwise or for that matter to take a decision in any manner whatsoever. The fact that an Executive Engineer, has been appointed as the 'Public Information Officer', does not make it the decision of the Executive Engineer at all. No other document has been placed on record indicating any decision having been taken in this regard, as no such decision was required, in light of the facts, as indicated hereinafter. The petitioner, it appears, without examining and considering this position, rushed to the Court presuming that the communication dated 31/5/2019, was a decision by the respondent no.3.9. In so far as prayer clause (b) is concerned, the same seeks a direction to pay compensation, as directed by the District Magistrate in its judgment dated 20/5/2010. In this context, learned Senior Counsel Shri Kaptan, has rightly pointed out that the judgment dated 20/5/2010 passed by the District Magistrate, Nagpur has been rendered otiose and inoperable, in as much as, the judgment was rendered in a situation, where the application of the petitioner under Section 17 (3) of the Telegraph Act, 1885 for shifting the locations of the towers, was rejected and the towers were to be erected on the original locations Nos.16 and 17 in the lands of Survey Nos.68/2 to 68/5. After the passing of the judgment dated 20/5/20101, by the District Magistrate, on the own request of the petitioner, the location of the towers was changed and as such, the fact situation, which had led to the passing of the judgment by the District Magistrate on 20/5/2010 was no longer in existence. The judgment or any direction contained therein, therefore, clearly became non-est in the eyes of law. Had the towers been erected on the original location Nos.16 and 17, the directions as contained in the judgment dated 20/5/2010 would continue to hold good, however, since, of the petitioner's own choosing the locations were changed as per the requirement of the petitioner, may be at its cost, the basic premise on which the judgment dated 20/5/2010 was passed ceased to exist, and thus any direction contained therein, ceased to become enforceable in law. In that light of the matter, the relief claimed in prayer clause (b) as it claims compensation based upon the directions as contained in the judgment dated 20/5/2010, is clearly now not permissible in law.10. The petitioner in prayer clause (b) claims compensation 'towards cost of land', which also is clearly not permissible under the provisions of the Telegraph Act, 1885, as there is no acquisition of land whatsoever, thereunder.11. It is material to note, that in the additional affidavit filed on behalf of the petitioner dated 19/8/2020, in paragraph 5, it has been specifically stated as under :“The Petitioner submits that Petitioner's case is not at all based upon G.R. dated 1.11.2010 but the entire case of the Petitioner is based upon the statutory duty cast upon Respondent no.3 under section 10 (d) of Telegraph Act, 1885.”Thus, the petitioner, clearly as per its own averments is not basing its claim for compensation on the Government Resolution dated 1/11/2020, but under the provisions of Section 10 (d) of the Telegraph Act, 1885.12. In respect of the plea of entitlement under section 10(d) of the Telegraph Act, 1885, as raised by the petitioner, it would be material to consider the provisions of Section 10 of the Telegraph Act, 1885, which read as under:-“Section 10. Power for telegraph authority to place and maintain telegraph lines and posts. - The telegraph authority may, from time to time, place and maintain a telegraph line under, over, along, or across, and posts in or upon, any immovable property :Provided that –(a) the telegraph authority shall not exercise the powers conferred by this section except for the purposes of a telegraph established or maintained by the Central Government, or to be so established or maintained;(b) the Central Government shall not acquire any right other than that of user only in the property under, over, along, across, in or upon which the telegraph authority places any telegraph line or post; and(c) except as hereinafter provided, the telegraph authority shall not exercise those powers in respect of any property vested in or under the control or management of any local authority, without the permission of that authority; and(d) in the exercise of the powers conferred by this section, the telegraph authority shall do as little damage as possible, and when it has exercised those powers in respect of any property other than that referred to in clause (c), shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers.”(emphasis supplied)It is not in dispute that under the provisions of Section 3 (1-AA), which defines a 'telegraph' and Section 3 (4), which defines 'telegraph line', of the Telegraph Act, 1885, the transmission of electricity and the erection of towers for such transmission are covered under the provisions of the Telegraph Act, 1885.13. Section 10 (d) of the Telegraph Act, 1885 merely mandates that where the telegraph line passes through a private property, the telegraph authority, while erecting such line, would cause as little damage as possible and in case any damage is sustained, shall pay full compensation to all persons interested.14. Since the location Nos.16 and 17 for erection of the towers as per the original plan, had an effect of bisecting the land of Survey Nos.68/2 to 68/5 in two parts, the petitioner was contending that such a division, would cause damage and make its property unusable. It is in this context, that when the judgment dated 20/5/2010 by the District Magistrate was passed, permitting erection of the towers at the original location Nos.16 and 17, that the direction for determination of damages in terms of Section 10 (d) of the Telegraph Act, 1885, was issued.15. It is further material to note that the petitioner had filed R.C.S. No.351/2010 (Harihar Buildspace Private Ltd. .Vs. Maharashtra State Electricity Transmission Company Limited through the Executive Engineer). The prayer clauses in this suit being material are reproduced as under:-“(ii) Grant the Permanent injunction restraining the Defendant, its Employees/Servants/officers or Agents or Contractors, or any person on behalf of it from carrying out any work (of the proposed 132 KV Transmission lines) on the above referred Suit property (belonging to the Plaintiff), by any other route, EXCEPT the Route Shown as ET4-PT3-PT2- PT1-ET1 in the enclosed ANNEXURE - I(v) Declare that the Route ET4-PT3-PT2-PT1-ET1 is the only valid and feasible route and the said route is in compliance of the provisions under S-10 (d) of the Indian Telegraph Act-1885, in the sense that it causes the Minimum damages to the suit property.(vi) Direct the Defendant, to ensure the compliance of the Statutory/Mandatory compliance of the provisions under S-10 (d) of the Indian Telegraph Act-1885.”(emphasis supplied)A perusal of the above prayers would demonstrate that vide prayer clause (vi) a direction was sought to the respondent no.3 to ensure compliance of the statutory/mandatory provisions under Section 10 (d) of the Telegraph Act, 1885. Considering the judgment dated 20/5/2010 and the fact that the application for injunction as filed earlier, also stood rejected, the petitioner had given the proposal dated 20/7/2010 to the respondent no.3 for change of route. It is further material to note that in R.C.S. No.351/2010 a pursis came to be filed on 6/8/2010 by the petitioner. The language of the pursis being material, the same is quoted as under:-“PURSISThe plaintiff most respectfully begs to submit that, during pendency of the present suit, the defendant accepted the proposal of the plff. & issued demand note in the name of plff. for Rs.42,43,872/- & plff. has deposited the same with deft. Hence nothing survives in the present suit &, therefore, plff. withdraws the present suit.Hence this Pursis.Nagpur Sd/-Dt/- 6/8/10 C.F. PlffSd/-(Plaintiff)(Shri Manish A. Badiyani)Director, H.I.D.C.L.”A perusal of the above pursis withdrawing the suit would demonstrate, that in spite of prayer clause (vi) made in R.C.S. No.351/2010, it was categorically stated that nothing survived in the suit and therefore, the same was sought to be withdrawn. It is further material to note that the order below Exh.1 was passed on 21/8/2010 withdrawing the suit as is reflected from the copy of the pursis and order below Exh.1 placed on record by the respondent no.3. Thus, though the petitioner had claimed a specific relief in R.C.S. No.351/2010 to ensure compliance of Section 10 (d) of the Indian Telegraph Act, 1885, the right to such relief was not reserved, while withdrawing the suit. This would clearly amount to waiver of that right. That apart, this is further reflected from the conduct on the part of the petitioner also, in as much as, the application for change of route submitted by the petitioner to the respondent no.3 on 15/7/2010 (Annexure – R-3/Pg. 92) makes a mention of the suit and the application for withdrawal, but does not state anything about any compensation, nor does it mention that the proposal for change of route was by reserving the right to claim compensation or without prejudice to the rights u/s 10(d) of the Telegraph Act, 1885. This is obvious, for had such a claim been made, the respondent no.3, would not have accepted the proposal for change of route and would have preferred to use the original route. It is further material to note that as against the position of the original location of tower Nos.16 and 17, which were two in numbers, as per the diverted route in tune with the request of the petitioner, as many as four number of towers were erected for diverting the transmission line, from the boundary of Khasra No.68. This is clearly indicated from the plan of diversion filed by the respondent no.3, at Annex-R-6/pg.95, the relevant portion of which is being reproduced as under :“IMAGE”The entire exercise of diversion of route of the transmission line from the original locations to the boundary of the land of Khasra No.68 was with an intention to nullify any damage which would be caused by laying the line on the original route. This having been done at the instance of the petitioner and for its benefit, and the petitioner not having reserved its right to claim any damages, either in the pursis withdrawing the suit, when such a relief was specifically claimed therein; or in the proposal dated 20/07/2010, it cannot be said that the claim of the petitioner for any damages would survive, even otherwise, on the touchstone of Section 10 (d) of the Telegraph Act, 1885 so as to entitle the petitioner to claim the same. Even while requesting for change of route, the petitioner was aware that the land would be used for erecting the towers and so also that the transmission line would be passing along the boundary of Khasra Nos.68/2 to 68/5 and being aware of this, it was open for the petitioner, to have reserved the right to claim compensation as contemplated under Section 10 (d) of the Telegraph Act, 1885, while submitting the proposal dated 20/07/2010 or making the payment of the demand note under its letter dated 4/8/2010, however, nothing of that sort appears to have been done by the petitioner. The contention by the learned Senior Counsel Shri C.S. Kaptan, that the change in route, was on an ORC (outright contribution) basis, is borne out from the communication dated 28/7/2010 (Annex – R-4/Pg.93) of the respondent no.3 and the letter dated 4/8/2010 (Annex- R-5/Pg.94) by the petitioner, which speaks about the deposit of ORC charges for shifting the high tension line. The affidavit of respondent no.3 dated 13/8/2020, in para 11 speaks about ORC work to mean that all the liability for the work was to be borne by the petitioner and also that the petitioner would not be entitled to compensation. The additional affidavit of the petitioner in response thereto dated 19/8/2020 does not dispute this position. Thus, the right to compensation, as claimed by the petitioner under Section 10 (d) of the Telegraph Act, 1885, considering the conduct of the petitioner, is now clearly not available to it.16. It is a trite position of law, that if a statute confers a right/benefit upon a person, it is open for such person, to give up or waive of such, right/benefit, which can be either expressly or can be inferred by the conduct of such person . In Lachoo Mal v. Radhey Shyam, (1971) 1 SCC 619 while enunciating this, it was held:-“6. The general principle is that every one has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy. Thus the maxim which sanctions the non-observance of the statutory provision is cuilibet licet renuntiare juri pro se introducto. (See Maxwell on Interpretation of Statutes, Eleventh Edn., pp. 375 and 376). If there is any express prohibition against contracting out of a statute in it then no question can arise of any one entering into a contract which is so prohibited but where there is no such prohibition it will have to be seen whether an Act is intended to have a more extensive operation as a matter of public policy. In Halsbury's Laws of England, Vol. 8, Third Edn., it is stated in para 248 at p. 143:“As a general rule, any person can enter into a binding contract to waive the benefits conferred upon him by an Act of Parliament, or, as it is said, can contract himself out of the Act, unless it can be shown that such an agreement is in the circumstances of the particular case contrary to public policy. Statutory conditions may, however, be imposed in such terms that they cannot be waived by agreement, and, in certain circumstances, the legislature has expressly provided that any such agreement shall be void.”In the footnote it is pointed out that there are many statutory provisions expressed to apply “notwithstanding any agreement to the contrary”, and also a stipulation by which a lessee is deprived of his right to apply for relief against forfeiture for breach of covenant (Law of Property Act, 1925).”(emphasis Supplied)17. Craies on Statute Law, states that:“If the object of a statute is not one of general policy, or if the thing which is being done will benefit only a particular person or class of persons, then the conditions prescribed by the statute are not considered as being indispensable. This rule is expressed by the maxim of law, quilibet potest renuntiare juri pro se introducte . As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the Court…. [ Craies on Statute Law, 7th ed., pp. 269-270.]”(emphasis Supplied)18. Similarly in his Interpretation of Statutes, Maxwell states the rule of law as follows:“Another maxim which sanctions the non observance of a statutory provision is that quilibet licet renuntiare juri pro se introducte. Everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy. Where in an Act there is no express prohibition against contracting out of it, it is necessary to consider whether the Act is one which is intended to deal with private rights only or whether it is an Act which is intended, as a matter of public policy, to have a more extensive operation…. [Maxwell's Interpretation of Statutes, 11th Edn (1962), pp. 375-376.] ”(emphasis Supplied)19. The position has also been considered by the hon'ble Apex Court in Commr. of Customs v. Virgo Steels, (2002) 4 SCC 316 as under :“9. The next question for our consideration is: can a mandatory requirement of a statute be waived by the party concerned? In answering this question, we are aided by a catena of judgments of this Court as well as of the Privy Council. We will first refer to the judgment of the Privy Council which has been consistently followed by the Supreme Court in a number of subsequent cases involving similar points. In Vellayan Chettiar v. Govt. of Province of Madras [AIR 1947 PC 197 : 74 IA 223] the Privy Council held that even though Section 80 CPC is mandatory, still non-issuance of such notice would not render the suit bad in the eye of the law because such non-issuance of notice can be waived by the party concerned. In the said judgment, the Privy Council held that the protection provided under Section 80 is a protection given to the person concerned and if in a particular case that person does not require the protection he can lawfully waive his right.10. In the case of Dhirendra Nath Gorai v. Sudhir Chandra Ghosh [AIR 1964 SC 1300 : (1964) 6 SCR 1001] this Court followed the judgment of the Privy Council in Vellayan Chettiar [AIR 1947 PC 197 : 74 IA 223] and held that even though the requirement of Section 35 of the Bengal Moneylenders Act is mandatory in nature, such mandatory requirement could be waived by the party concerned. On a true construction of Section 35 of that Act, this Court held that the said section is intended only for the benefit of the judgment-debtor and, therefore, he can waive the right conferred on him under the said section.11. In the case of S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra [1980 Supp SCC 53] this Court negatived an argument that the requirement of Section 94 of the Representation of the People Act, 1951 cannot be waived. This argument was based on the principle that public policy cannot be waived. Rejecting the said argument, this Court held that the privilege conferred or a right created by a statute, if it is solely for the benefit of an individual, he can waive it. It also held that where a prohibition enacted is founded on public policy, courts should be slow to apply the doctrine of waiver but if such privilege granted under the Act is for the sole benefit of an individual as is the case under Section 94 of the Representation of the People Act, the person in whose benefit the privilege was enacted has a right to waive it because the very concept of privilege inheres a right to waiver.12. In Krishan Lal v. State of J&K [(1994) 4 SCC 422 : 1994 SCC (L&S) 885 : (1994) 27 ATC 590] this Court while considering the requirement of furnishing a copy of inquiry proceedings under Section 17(5) of the J&K (Government Servants) Prevention of Corruption Act, 1962 held following the judgment in V. Chettiar case [AIR 1947 PC 197 : 74 IA 223] and D.N. Gorai [AIR 1964 SC 1300 : (1964) 6 SCR 1001] that though the requirement mentioned in Section 17(5) of the Act was mandatory, the same can be waived because the requirement of giving a copy of the proceedings of the inquiry mandated by Section 17(5) of the Act is one which is for the benefit of the individual concerned.13. In Martin & Harris Ltd. v. VIth ADJ [(1998) 1 SCC 732] this Court while considering the provision of Section 21(1)(a) first proviso of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 negatived a contention advanced on behalf of the appellant therein that the said provision was for public benefit and could not be waived. It held that it is true that such benefit enacted under the said proviso covered a class of tenants, still the said protection would be available to a tenant only as an individual, hence, it gave the tenant concerned a locus poenitentiae to avail the benefit or not. It also held that the benefit given under the said section was purely personal to the tenant concerned, hence, such a statutory benefit though mandatory, can be waived by the person concerned.14. From the ratio laid down by the Privy Council and followed by this Court in the above-cited judgments, it is clear that even though a provision of law is mandatory in its operation if such provision is one which deals with the individual rights of the person concerned and is for his benefit, the said person can always waive such a right.”Thus the position, that if a Statute creates a right or benefit in favour of an individual or a class of individuals, it is open for such a individual or class of individuals, to waive off the benefit or right is now well settled, the exception being that such waiver was not permissible when it was a matter of Public Policy. Considering the language of Section 10(d) of the Telegraph Act,1885, it would be evident that it addresses the private right of an individual owner of the land who is affected by the action of the respondent no.3, in erection of the telegraph posts and the transmission line and any damage, which may be caused due to such an act and there is no public policy involved. Thus We, hold that it is permissible for an individual to waive off the benefit/right as available to such person under Section 10(d) of the Telegraph Act, 1885.20. In the instant case, though the petitioner, has claimed a specific relief under Section 10 (d) of the Telegraph Act, 1885 in R.C.S. No.351/2010, the same was given up, as is reflected from the pursis dated 6/8/2010 withdrawing the suit. The same is also reflected from the proposal dated 20/7/2010 submitted by the petitioner to the respondent no.3 and the subsequent conduct of the petitioner, in not raising such a claim from 2010 till 2019, more than a period of 8 years. The petitioner, therefore, even otherwise, is not entitled to any benefit or claim under the provisions of Section 10 (d) of the Telegraph Act, 1885.21. The contention that the change of route under Section 17(3) of the Telegraph Act, 1885, would not deprive the petitioner of a right to claim compensation under Section 10(d) of the Telegraph Act,1885, may have some basis, for the reason that Section 17(3) of the Telegraph Act, 1885 acts in a totally different context altogether. Section 17 of the Telegraph Act, 1885, reads as under :“Sec. 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 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.”(emphasis supplied)The language of Section 17 of the Telegraph Act, 1885, clearly indicates that the same is attracted, when at an earlier point of time, a telegraph line or post has already been placed upon a property and the owner/occupier of such property is desirous to remove the same to another part thereof, then he may require the Telegraph Authority to remove or alter the line or post, upon tendering the expenses for the removal/alteration. Section 17 of the Telegraph Act, 1885, therefore, clearly contemplates the preexistence of a telegraph line or post, as the user of the words 'has been placed,' 'to remove or alter the line or post' in Section17(1) or the requirement to defray the expenses or pay half of the compensation, if already received under Section 10(d) of the Telegraph Act, 1885, indicates.As against the above, in the present case, the telegraph posts and transmission line, was not already in existence/erected but was proposed to be erected. Thus resort to Section 17(3) of the Telegraph Act, 1885, was clearly not permissible in the factual background, as Section 17(3) of the telegraph Act, 1885, would come into play, post events as contemplated in Section 10, including 10(d), having taken place, as is indicated by the proviso to Section17(1) of the Telegraph Act, 1885, by reference to return of half of the compensation, if paid under Section 10(d) of the Telegraph Act, 1885. Even otherwise, the application under Section 17(3) of the Telegraph Act, 1885, as filed by the petitioner came to be rejected by the District Magistrate vide his judgment dated 20/5/2010, which was not challenged further by the petitioner. However, considering what has been held in respect of the non-entitlement of the petitioner to lay a claim under Section 10(d) of the Telegraph Act, nothing turns on whether an application was filed under Section 17 (3) of the Telegraph Act, 1885, or its fate.22. Shri Kothari, the learned Counsel for the petitioner has referred to certain admissions of the respondent no.3, which according to him support his claim. He invites our attention to the averments of the respondent no.3 in paras 1(iv), (viii) and (ix) of the reply dated 3/4/2010 [Annex-K/pg.127) by the respondent no.3 to the application dated 30/3/2010, by the petitioner for direction to supply information. However, in our considered opinion, the averments as contained in paras 1(iv), (viii) and (ix) of the reply dated 3/4/2010 of the respondent no.3 are of no assistance to the arguments as canvassed by the learned Counsel for the petitioner, for the reason that these averments were made in a reply, placed on record of case No.05/ MRC-81/2010 under Section 16(1) of the Telegraph Act, 1885, when the same was pending before the District Magistrate, and were made in the context when neither the proceedings under Section 16(1) or 17(3) of the Telegraph Act,1885, were decided. The proceedings before the District Magistrate, concluded by the judgment dated 20/5/2010.The further reference by Shri Kothari, learned Counsel for the petitioner to the averments in para 22 of the affidavit in reply of the respondent no.3, dated 13/8/2020, as to the bonafide belief that compensation towards the towers in Survey No.68, could not be given and that before 1/11/2010, there was no provision for land compensation and only damages could be paid to the land owner, and the contention that this amounts to an admission on part of the respondent no.3, that compensation is payable, is clearly fallacious for the reason that these averments have been made in the contextual background of the Government Resolution dated 1/11/2010, which the petitioner itself admitted as not being applicable to it. Apart from that, it is nobody's case that land compensation is permissible under the provisions of the Telegraph Act, 1885. The averments made in the submissions/affidavits have to be read in the contextual and the factual background in which they have been made and not out of context. Considering the factual background, the averments in para 22 of the reply of the respondent no.3, cannot be taken to amount to any admission that any land compensation was permissible, more so, when there is no provision in the Telegraph Act, 1885 permitting acquisition of land.23. As we have already held that the petitioner is not entitled to any compensation under Section 10(d) of the Telegraph Act, 1885, it is not necessary to consider the plea that the petitioner is entitled to compensation under the RFCTRR Act 2013. Suffice it to say that the entire Telegraph Act, 1885, does not contemplate any acquisition of land. This is clear from the language of Section 10(b) which expressly mandates that the Central Government shall not acquire any right other than that of user only in the property under, over, along, across, in or upon which the Telegraph Authority places any line or post. Thus no acquisition of land is contemplated by the Telegraph Act,1885 and therefore the provisions of RFCTRR Act 2013, which are applicable only to acquisition of land, would clearly not be available, for any user as contemplated under the Telegraph Act,1885.24. It is further apparent from the position on record that the change of route was in response to the request of the petitioner vide its letter dated 15/7/2010, which was accepted and the work of erection of towers along the diverted/changed route was commenced and completed between 13/9/2010 to 27/9/2010 and the line came to be commissioned on 23/30th October, 2010. Nothing whatsoever thereafter was done by the petitioner. If at all the petitioner, felt that there was any entitlement to compensation, even presuming under the judgment of the District Magistrate dated 20/5/2010, or otherwise under Section 10(d) of the Telegraph Act, 1885, since the line was commissioned on 30th October, 2010, the petitioner ought to have approached either the authorities or this Court, within a reasonable period of time. The fact that the petitioner (a) had filed proceedings under Section 17 (3) of the Telegraph Act, 1885; (b) was contesting the proceedings filed under Section 16 (1) of the Telegraph Act, 1885, as filed by the respondent no.3, (c) had filed R.C.S. No.351/2010, clearly indicated that the petitioner was aware of its so called rights in the matter. Yet the petitioner from 28/9/2010, the date of completion of work of the diverted/changed route, till 4/5/2019, i.e. a period of nearly 8 years and 7 months, kept quiet and did not initiate any action/proceeding/communication whatsoever, in this regard. There is not a single whisper, in the entire petition to explain such delay of 8 years and 7 months. Though the Courts may at times act leniently in the matter of delay and latches, however, the same cannot be for the mere asking and here there is not even a mention in the petition that there was any delay, much less any reason explaining the same. When a litigant, who is conscious and aware of its so called rights and has been fighting litigation; has had the assistance of legal experts in the matter, sits over such so called rights, and approaches the Court without even bothering to take the trouble of even addressing the issue of delay, by giving any explanation for the same, ought the Court to entertain the plea of such petitioner.25. The principles as to delay and latches have been laid down by the Hon'b'le Apex Court in the following words in Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649 :“21. From the aforesaid authorities the principles that can broadly be culled out are:21.1. (i) There should be a liberal, pragmatic, justiceoriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.21.2. (ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.21.4. (iv) No presumption can be attached to deliberate cau
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sation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.”(emphasis supplied)In the instant case, though, as stated above, there is a delay of 8 years 7 months, there is not even a mention of the same in the petition. Not only that, the entire petition does not contain any averment that R.C.S. No.351/2020, which contained a prayer clause in respect of Section 10 (d) of the Telegraph Act, 1885 was withdrawn without reserving any liberty in respect of the relief as claimed therein under Section 10 (d) of the Telegraph Act, 1885. A mischievous statement has been made in para 6 of the petition to the effect that the petitioner was not informed by the respondent no.3 as to when the transmission line was commissioned/charged and therefore, the petitioner had applied to the respondent no.3 under the Right to Information Act, 2005 on 4/5/2019, in response to which the petitioner claims to have received the information under the communication dated 3/7/2019 that the high tension line was commissioned on 30/10/2010. The respondent no.3 along with its reply dated 13/08/2020 has placed on record a public notice, issued in the local daily Lokmat dated 23/10/2010, intimating that the line would be commissioned on 25/10/2010. That apart, it is inconceivable that the petitioner who had applied for and caused the route to be changed which work was completed on 27/9/2010, would be unaware that the line was commissioned, for a period of more than eight and half years. The matter is thus covered by paragraphs 21.5, 21.8 and 21.9 of the judgment in Esha Bhattacharjee (supra). The petition is therefore also hit by delay and latches.26. It would not be out of context to mention here that one of the sellers, Mrs. Kiran Anil Deshpande, has filed an application for intervention bearing Civil Application No.984/2020, on the ground that since a portion of the land of Survey No.68, was to be affected by the erection of towers by the respondent no.3, which area according to the sellers and petitioner was around 4 acres, it was agreed between the sellers (Smt. Vijayalaxmi Kinkhede & others) and the petitioner, that the petitioner would pay a consideration of Rs.51,20,000/- (@ Rs.12,80,000/- per acre) instead of Rs.1,28,00,000/- (@ Rs.32,00,000/- per acre) and in the event the respondent no.3 did not acquire the land, the petitioner would pay the balance amount of Rs.76,80,000/- to the sellers. It is contended that such a clause has been inserted in the sale deeds dated 30/3/2007, 6/7/2007, 13/11/2007 and 7/4/2008 and the clause was unconscionable and the act of the petitioner amounted to unjust enrichment. Though copies of the sale deeds have not been filed alongwith the application, a reply has been filed by the petitioner, opposing the intervention application, on the ground that it raises disputed questions of fact and the proper remedy for the applicant would be a civil suit. It is, however, material to note that the averment made in the application that the petitioner had acquired the land at a substantially lesser rate and the existence of the clause referred to in the application has not been denied. However, as the application raises contentious issues, we do not think that the same can be considered and decided in this petition. The Civil Application is therefore rejected. It would however be open for the applicant/sellers to approach the Civil Court for redressal of their grievance as raised in the application, if so advised.27. Thus for the reasons stated above, we do not find any merit in the petition, in addition to which we are also constrained to hold that the petition also suffers from delay and latches and fails on this count too. The writ petition is dismissed. Rule stands discharged. Considering the circumstances, no costs.