Andhra HC (Pre-Telangana)
Bhaskara Housing (P) Ltd., Hyderabad vs Apseb, Hyderabad And Another on 3 November, 1998
Equivalent citations: 1998(6)ALD781, 1998(6)ALT436
ORDER
1. The petitioner is a Private Limited Company incorporated under the Companies Act. Teh petitioner-Company owns landed property in Sy.Nos. 362, 363, 365/1 situated at Gudur village, Bibinagar Mandal, Nalgonda District to an extent of Ac.33-00 having purchased the same by the registered sale deed Nos.4591/94, 4592/1/94 and 4593/I/94 dated 7-9-1994. The petitioner - claims that those lands were converted as house sites/plots after obtaining lay-out permission from the Gudur Gram Panchayat, dated 21-8-1996. The petitioner complaining that the respondent authorities of the APSEB without any notice to the petitioner proposed to lay the over-head lines above the land of the petitioner filed the writ petition praying for declaration that the action of the respondents in encroaching upon the property of the petitioner and laying overhead lines for transmission of electrical energy and putting up towers for support of the lines as arbitrary and without authority of law and for a consequential direction to the respondents to consider for re-alignment of electrical supply lines.
2. In response to Rule Nisi, the second respondent has filed counter-affidavit resisting the claim of the petitioner. In the counter-
affidavit, it is stated that sanctioned scheme was published in the A.P. Gazette dated 24-8-1995 to supply electric power for the public purpose and two months time was given in the Gazette notification for submitting any representation or objection from the interested persons; the lands in question are agricultural lands and no houses are constructed till 2-10-1998; the sanctioned scheme was published in the Gazette even before the Gram Panchayat approved the house lay-out on 24-8-1995; Power Grid Corporation of India has laid 400 KV line in the land; the APSEB has power under the Electricity (Supply) Act, 1948 to lay transmission lines for supply and distribution of electrical power for agriculture, domestic and industrial loads in any private land without giving any individual notice, there was no objection from the petitioner at the time of laying of the foundation for the tower at location-87 in the land of the petitioner; the construction of the single tower foundation in the land of the petitioner is already completed; there is no other alternative to lay the transmission line except in the present alignment due to various physical, topographical conditions at site such as electrified railway track, a big irrigation tank, 400 KV Line, Bibinagar village. However, in the counter, it is stated that if any damage is caused to the standing crops or fruit bearing trees while laving the transmission lines, compensation can be claimed by the petitioner from the Board as determined by the competent revenue officials.
3. The learned Counsel for the petitioner placing reliance on Section 42 of the Electricity (Supply) Act, 1948, contended that the respondents are not entitled to invoke Part-III of the Indian Telegraph Act, 1885 unless the sanctioned scheme provides for invocation of the powers envisaged under Part-Ill of the Indian Telegraph Act, 1885. Secondly, the learned Counsel for the petitioner contended that since the petitioner has objected to laying of the lines over its lands, the Board is obligated to approach the District Magistrate for an order, and unless the District Magistrate grants an order to lay the line, the Board cannot lay the line over the lands of the petitioner nor can it construct the towers, as mandated under the provisions of sub-section (1) of Section 16 of the Indian Telegraph Act, 1885. In support of the contention, the learned Counsel for the petitioner would place reliance on the judgment of the Full Bench of the Kerala High Court in Bharat Ply Wood and Timber Products Private Limited v. Kerala State Electricity Board, . On the other hand, learned Standing Counsel for APSEB submitted that the sanctioned scheme in question provides for laying of electric lines, construction of towers etc., and since the sanctioned scheme provides for these things, it is quite competent for the officers of the APSEB to exercise the powers conferred upon them under Part-Ill of the Indian Telegraph Act, 1885. Meeting the second contention of the learned Counsel for the petitioner, learned Standing Counsel for APSEB would argue that the facts of this case are distinguishable from the facts of the case decided by the Full Bench of the Kerala High Court. Elaborating this submission, the learned Counsel would point out that the scheme was published in the A.P. Gazette as far back as on 24-8-1995 giving two months time for the interested persons to submit their representations/ objections, if any, and the petitioner for the reasons best known to him did not file any objection, though it claims to have purchased the property in the year 1994 itself. The learned Standing Counsel would also submit that immediately after the expiry of two months time given in the notification 24-8-1995, the Board authorities caused survey, and even during the survey, no objection was raised by the petitioner, and that for all these reasons, it should be held that there is no objection or obstruction from the petitioner so as to invoke the provisions of sub-section (1) of Section 16 of the Indian Telegraph Act, 1885.
4. Sub-section (1) of Section 42 of the Electricity (Supply) Act, 1948 provides that notwithstanding anything contained in Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910, but without prejudice to the requirements of Section 17 of that Act where provision in such behalf is made in a sanctioned scheme, the Board shall have, for the placing of any wires, poles, wall-brackets, stays apparatus and appliances for the transmission and distribution of electricity, or for the transmission of telegraphic or telephonic communications necessary for the proper coordination of the works of the Board, all the powers which the telegraphic authority possesses under Part III of the Indian Telegraph Act, 1885. Proviso to sub-section (I) of Section 42 of the said Act provides that where a sanctioned scheme does not make such provision as contemplated in subsection (1) of Section 42, all the provisions of Sections 12 to 19 of the Indian Electricity Act, 1910 shall apply to the works of the Board. There is no controversy between the parties that there exists a sanctioned scheme and that scheme was published in the A.P. Gazette dated 24-8-1995. The argument of the learned Counsel for the petitioner that the scheme as notified in the A.P. Gazette should have declared that the Board would invoke provisions under Part-Ill of the Indian Telegraph Act, 1885, and such declaration is a must to invoke those provisions is not acceptable to the Court. The phrase "provision in such behalf occurring in sub-section (1) of Section 42 of the Electricity (Supply) Act, 1948 is referable to Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910. Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910 deal with the opening and breaking up of streets, railways and tramways; notice of new works; alteration of pipes or wires; laying of electric supply-lines or other works near sewers, pipes or other electric supply-lines or works; overhead lines and compensation for damages. A cumulative reading of the provisions of sub-section (1) of Section 42 of the Electricity (Supply) Act, 1948 with that of proviso make it apparently clear that if the sanctioned scheme provides for any of the things contemplated under Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910, the officers of the Board can exercise similar powers conferred upon the authorities of the Telegraph Department under Part-III of the Indian Telegraph Act, 1885, In the instant case, since the sanctioned scheme provides for laying of lines and construction of towers, it should be held that the Board and its officers have the power to invoke the provisions of Part-III of the Indian Telegraph Act, 1885 and, therefore, prior consent is not necessary as required under Section 12 of the Indian Electricity Act, 1910.
5. Adverting to the second contention of the petitioner, suffice it to state that the facts stated by the learned Standing Counsel for Board themselves answer the contention. At the same time, I should state that all the facts stated by the learned Counsel on the basis of the instructions from the Board, arc not stated in the counter-affidavit filed by the Board. I have no good reasons to disbelieve the statements made by the teamed Standing Counsel on the basis of instructions. The sanctioned scheme was published in the A.P. Gazette as far back as on 24-8-1995 giving two months time to the affected or interested persons to make representation. Admittedly, no representation was made by the petitioner. The contention of the learned Counsel for the petitioner is that the petitioner was not aware that the lines would be laid over its lands. In such a large scheme covering 82 kilometres, it is highly incredible to believe the version of the petitioner. Be that as it may, even during the survey conducted by the officials of the Board immediately in the year 1995, no objection was raised. In the counter-affidavit filed by the respondent-Board, it is stated that foundation for the tower at location-87 is already completed. It is not a thing to be done within a day or two. Even at this stage, the writ petition was not filed nor the petitioner made any attempt to prevent the Board from proceeding with further works.
6. Despite the above reasons, in the normal course, the Court would have called upon the Board to consider the request of the petitioner for realignment of electrical supply lines, but in the counter, it is stated that there is no alternative to lay the transmission line except in the present alignment due to various physical, topographical conditions at site such as electrified railway track, big irrigation tank, 400 kv line etc. The line in question is of the length of 82 kilometres and more. Any interference at this stage will be prejudicial to the public interest and affect public utility service. No case is made out for interference.
7. In the result, the writ petition is dismissed, with no order as to costs.