Orissa High Court
Smt. Susama Patel vs Grid Corporation Of Orissa Ltd. And Ors. on 23 March, 1998
Equivalent citations: 1998(II)OLR136
Author: S.N. Phukan
Bench: S.N. Phukan, A. Pasayat
JUDGMENT S.N. Phukan, C.J.
1. The background facts, as stated by the petitioner, are as follows :
The petitioner purchased a plot of land in the year 1993 near the residential office of the Collector, Jharsuguda on the State Highway and after approval of plan and after obtaining proper permission from the Sambalpur Regional Improvement Trust, she constructed a double storeyed house. When the house was under construction, to the utter surprise of the petitioner, the opposite parties started construction of 132 KV Tower line for transmission of electric energy from Brajarajnagar across the State Highway to Cement Factory of L & T situated at Arda. She raised objection, and it was found that necessary permission as required under law was not taken. Construction was stopped for some time. Thereafter, all on a sudden, construction of the tower started. Line from Kantapalli to the cement factory in one side of the tower was taken. The said line is not going directly over the house of the petitioner, but crossing through the State Highway. Though the petitioner raised protest again, the opposite parties did not care to listen. As the electric line is going to be constructed by the side of the house of the petitioner about 10 feet away, there is apprehension in her mind that in case of accident, her house may be affected. As the wires will go directly over the house of the petitioner, there will be danger to the life of the occupants of the house. Her consent in the matter was not taken. According to her, permission was not taken from the District Magistrate, Jharsusugda, and, therefore, electric line was drawn illegally and the action is arbitrary and violative of the rights of the petitioner. She is making this statement as show-cause notice was not served on her. She has further alleged that no compensation was paid to her for this high tension electric line over her house, which, according to her, is contrary to law. Therefore, the petitioner has prayed, inter alia, for a writ of mandamus directing the opposite parties to stop further construction of the 132 KV Tower line over her house and also the residential house of the Collector. In the alternative, she has prayed that the tower line may be shifted to some other place. She has also prayed for grant of compensation in accordance with law for drawing the transmission line by the side of her house.
2. On behalf of the opposite parties 1 and 2, namely. Grid Corporation of Orissa Ltd., and Executive Engineer, E.H.T. Construction, Grid Corporation of Orissa Ltd., Jharsuguda, it has been pleaded that decision was taken in the year 1992 and scheme was sanctioned by the Chief Engineer, Transmission Project for an estimate of Rs. 3,99,15,430/-. After the scheme was sanctioned, it was duly notified in the extraordinary Gazette in the year 1993 as required under Sub-section (3) of Section 28 of the Electricity (Supply) Act, 1948 (for short, 'Act of 1948') for information and submission of representation or objection, if any, to the construction of the said line. A copy of the notification was also published in the Oriya daily 'Samaj' dated 6.3.93. The Gazette notification and the newspaper publication are at Annexures A/2 and B/2 respectively. When no objection was received from any quarter after publication of the scheme, the work of the 132 KV Single Circuit Line on Double Circuit tower with a length of 18.5 K.M. was undertaken and the same was completed in September, 1993. It was duly inspected by the Chief Electrical Inspector of the State Government. No irregularities have been pointed out by them with regard to the supply line. When the overhead line was completed, there was no residential premises below the same. All the lands are either fallow or agricultural lands. Before charging the line, it was notified to the public that with effect from 15.8.1993 power line would be charged and residents of different villages were cautioned not to construct any house below the overhead line endangering life. The said notice was published in the daily local circulated newspapers like 'Agnisikha' on 31.7.1993 and 'Sambad' on 1.8.1993, copies whereof are marked as Annexures C/2 series. According to the opposite parties, it was decided to draw second circuit (hot line) on the existing 132 K.V. single circuit line on-double circuit tower and administrative approval was given by the Chairman of the then Orissa State Electricity Board on 22.9.1994. The second circuit line is being constructed on the existing single circuit line to inter connect the generation from Hirakud Power Station with the generation from the Ib Thermal Power Station to cater to the need of areas like Sambalpur, Jharsuguda, Sundargarh and Rourkela.
3. Reference has been made by opposite parties to Section 28 of Indian Electricity Act, 1910 (for short, 'Act of 1910) and Section 42 of the Act of 1948. Reference has also been made to various provisions of the Indian Telegraph Act, 1885. It has been stated that the 132 KV single circuit line on double circuit tower was constructed in the year 1992-93 after following the procedures of law. The present work relates to stringing of 132 KV second circuit overhead line on existing 132 KV single circuit line on double circuit tower. It has been urged that at such belated stage, objection of the petitioner needs no consideration as she purchased the land during the year 1993 and constructed the house after 1994, that too after construction of 132 KV single circuit line on double circuit tower. It has also been pleaded that on verification of the spot, it was found that the house constructed by the petitioner which was not in existence earlier was just below the overhead line. The petitioner came to picture only after purchase of the land in the year 1993 and by that time, construction of overhead line was completed and charged. It has been pleaded that Section 12 of the Act of 1910 has no application to the present case and that following the procedure as laid down by Section 28 of the Act of 1948, steps have been taken for construction of overhead line. Question of giving show-cause notice to the petitioner did not arise since she had purchased the land and constructed the house long after the construction of overhead line. If she has any grievance, she can approach the District Magistrate for grant of compensation as provided under the Indian Telegraphs Act, 1885.
4. Opposite party No. 3 namely, Executive Engineer, H.I.W. (Project Wing), Grid Corporation of Orissa Ltd. has filed a separate counter wherein it has been stated that Hirakud Industrial Works has undertaken the stringing of 132 KV second circuit hot line on existing 132 KV single circuit line on double circuit tower from Jharsuguda sub-station. The work order was issued during 1994 by the Orissa State Electricity Board and the work has been undertaken and in the meantime nearly 90% of the work has been completed. The work has been undertaken to connect the generation of the Hirakud Power House with Ib Thermal Power Station to cater to the need of areas like Sambalpur, Sundargarh, Jharsuguda and Rourkela.
5. We may now refer to the various provisions of the Acts.
Sections 12 and 18 of the Act of 1910 read as follows :
"12. Provisions as to the opening and breaking up of streets,. railways and tramways :-
(1) Any licensee, may from time to time but subject always to the terms and conditions of his licence, within the area of supply, or when permitted by the terms of his licence to lay down or place electric supply-lines without the area of supply, without that area -
(a) open and break up the soil and pavement of any street, railway or tramway;
(b) open and break up any sewer, drain or tunnel in or under any street, railway or tramway;
(c) lay down and place electric supply-lines and other works;
(d) repair, alter or remove the same; and
(e) do all other acts necessary for the due supply of energy.
(2) Nothing contained in Sub-section (1) shall be deemed to authorise or empower a licensee, without the consent of the local authority or of the owner or occupier concerned, as the case may be, to lay down or place any electric supply-line or other work in, through or against any building, or on, over or under any land not dedicated to public use whereon, Wherever, or wherunder any electric supply-line or work has not already been lawfully laid down or placed by such licensee :
Provided that any support of an overhead line or any stay or strut required for the sole purpose of securing in position any support of an overhead'line may be fixed on any building or land or, having been so fixed, may be altered, notwithstanding the objection of the owner or occupier of such building or land, if the District Magistrate or, in a presidency-town the Commissioner of Police, by order in writing so directs:
Provided also, that, if at any time the owner or occupier of any building or land on which any such support, stay or strut has been fixed shows sufficient cause, the District Magistrate or in a presidency-town, the Commissioner of Police may by order in writing direct any such support, stay or strut to be removed or altered.
(3) When making an order under Sub-section (2) the District Magistrate or the Commissioner of Police, as the case may be, shall fix the amount of compensation or of annual rent, or of both, which should in his opinion be paid by the licensee to the owner or occupier.
(4) Every order made by a District Magistrate or a Commissioner of Police under Sub-section (2) shall be subject to revision by the State Government.
(5) Nothing contained in Sub-section (1) shall be deemed to authorise or empower any Licensee to open or break up any street not repairable by the Central Government or the State Government or a local authority, or any railway or tramway, except such streets, railways or tramways (if any), or such parts thereof, as he is especially authorised to break up by his licence, without written consent of the person by whom the street is repairable or of the person for the time being entitled to work the railway or tramway, unless with written consent of the State Government :
Provided that the State Government shall not give any such consent as aforesaid, until the licensee has given notice by advertisement or otherwise as the State Government may direct, and within such period as the State Government may fix in this behalf, to the person above referred to, and until all representations or objections received in accordance with the notice have been considered by the State Government.
(6) In this section 'occupier' of any building or land means a person in lawful occupation of that building or land.
18. Overhead lines -
(1) Save as provided in Section 13, Sub-section (3), nothing in this Part shall be deemed to authorise or empower a licensee to place any overhead line along or across any street, railway, tramway, canal or waterway unless and until the State Government has communicated to him a general approval in writing of the methods of constructions which he proposes to adopt :
Provided that the communication of such approval shall in no way relive the licensee of his obligations with respect to any other consent required by or under this Act.
(2) Where any overhead line has been placed or maintained by a licensee in breach of the provisions of Sub-section (1), the State Government may require the licensee forthwith to remove the same, or may cause the same to be removed, and recover from the licensee the expenses incurred in such removal.
(3) Where any tree standing or lying near an overhead line or where any structure or other object which has been placed or has fallen near an overhead line subsequently to the placing of such line, interrupts or interferes with, or is likely to interrupt or interfere with, the conveyance or transmission of energy or the accessibility of any works, a Magistrate of the First Class or, in a presidency-town, the Commissioner of Police, may, on the application of the licensee cause the tree, structure or object to be removed or otherwise dealt with as he thinks fit.
(4) When disposing of an application under Sub-section (3), the Magistrate or Commissioner of Police, as the case may be, shall in the case of any tree in existence before the placing of the overhead line award to the person interested in the tree such compensation as he thinks reasonable, and such person may recover the same from the licensee.
Explanation - For the purposes, of this section, the expression, 'tree' shall be deemed to include any shrub, hedge, jungle-growth or other plant."
Sections 28 and 42 of the Act of 1948 are quoted below :
"28. Preparation and sanctioning of schemes -
(1) For the efficient performance of its duties under this Act, the Board or a Generating Company, as the case may be, may prepare one or more Schemes, relating to the establishment or acquisition of generating stations, the lines, sub-stations or transmission lines as are referred to in Clause (e) of Section 18 or Clause (c) of Sub-section (1) of Section 18A, as the case may be.
(2) The Board or, as the case may be, the Generating Company, which has prepared a scheme, may sanction such scheme either generally or in respect of any part of the area specified in the scheme and where a scheme has been sanctioned in respect of any part of the area, such scheme may subsequently be sanctioned in respect of any other part of that area :
Provided that where the scheme is of the nature referred to in Sub-section (1) of Section 29, the scheme shall not be sanctioned generally or for part of an area by the Board or the Generating Company except with the previous concurrence of the authority.
(2-A) The Board, or, as the case may be, the Generating Company shall, as soon as may be after it has sanctioned any scheme which is not of the nature referred to in Section 29, forward the scheme to the Authority and, if required by the Authority so to do, supply to the Authority any information incidental or supplementary to the scheme within such period as may be specified by the Authroity.
(3) Every scheme sanctioned under this section shall be published in the Official Gazette and in such local newspapers as the Board or as the case may be, the Generating Company may consider 'necessary.
42. (1) Powers to Board for placing wires, poles etc. -
Notwithstanding anything contained in Sections 12 to 16 and 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 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 telegraphic communications necessary for the proper co-ordination of the works of the Board, all the powers which the telegraph authority possesses under Part III of the Indian Telegraph Act, 1885 with regard to a telegraph established or maintained by the Government or to be so established or maintained :
Provided that where a sanctioned scheme does not make such provision as aforesaid, all the provisions of Sections 12 to 19 of the first mentioned Act shall apply to the works of the Board.
(2) A Generaitng Company may, for the placing of wires, poles, wall-brackets, strays, apparatus and appliances for the transmission of electricity, or for the transmission of telegraphic or telephonic communications necessary for the proper co-ordination of the works of the Generating Company, exercise all or any of the powers which the Board may exercise under Sub-section (1) and subject to the conditions referred to therein."
It is also necessary to refer Section 10 of the Indian Telegraph Act, 1885 which we quote below.
"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; 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."
6. Let us first summarise the legal provisions for laying down the transmission line under the provisions of Act of 1910, Act of 1948 and Section 10 of Indian Telegraph Act, 1885. Admittedly the present line has been drawn under a sanctioned scheme. Therefore, the question is whether it is in accordance with law.
7. According to Section 28 of the Act of 1948, the Board or a Generating Company, as the case may be, may prepare one or more schemes, relating to the establishment or acquisition of generating stations, the lines, substations or transmission lines as was required under Sections 18 and 18A of the Act. Under Sub-section (2-A) of Section 28, the Board has to forward such scheme to the Authority and if required by the Authority so to do, supply to the Authority any information specified by the Authority. Thereafter, the scheme has to be published in the local newspapers. Section 42 empowers the Board for placing wires, poles etc. Sub-section (1) of this section states that notwithstanding anything contained in Sections 12 to 16, 18 and 19 of .the Act of 1910 where provision has been made in a sanctioned scheme, the Board shall have, for placing of any wires, poles etc. for the transmission and distribution of electricity or for transmission of telegraphic or telephonic communications necessary for the proper co-ordination of the works of the Board, all the powers which the telegraph authority possesses under Part III of the Indian Telegraph Act, 1885 with regard to a telegraph established or maintained by the Government or to be so established or maintained.
Section 10 of the Indian Telegraph Act, 1885 empowers the telegraph authority to maintain a telegraph line under, over, along or across, and posts in or upon any immovable property provided inter alia that the authority shall do as little damage as possible, and, when it has exercised those powers in respect of any property, it shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers. Therefore, the opposite party-company while implementing a sanctioned scheme shall do as little damage as possible and shall pay full compensation to all persons interested for any damage sustained by them.
8. Coming to Section 12 of the Act of 1910, we find that the licensee, namely, the Generating Company or a Board may, when permitted by the terms of the licence, lay down or place electric supply-lines and other works, repair, alter or remove the same and do all other acts necessary for the due supply of energy. But Sub-section (2) of Section 12 provides that such work shall not be done without the consent of the local authority or the owner or occupier concerned to lay down or place electric supply lines or other works in, through or against any building, or on, over or under any land into dedicated to public use whereon, whereof, or whereunder any electric suply line or work has not already been lawfully laid down or placed by such licensee. Proviso to this sub-section inter alia provides that such work can be done notwithstanding the objection of the owner or occupier of such building or land, if the District Magistrate, by order in writing, so directs. Against such order of the District Magistrate, revision lies to the State Government. Sub-section (6) of Section 12 provides that occupier of any building or land means a person in lawful occupation of that building or land.
Section 18 inter alia provides that the licensee cannot place any overhead line along or across any street, railway, tramway, canal or waterway unless and until the State Government has communicated to him a general appro valin writing of the methods of constructions which the licensee proposes to adopt. Sub-sections (3) of this section is very relevant which, inter alia, provides that where any structure or other object which has been placed or has fallen near an overhead line subsequently to the placing of such line, interrupts or interferes with, or is likely to interrupt or interfere with, the conveyance or transmission of energy of the accessibility of any works, a Magistrate of the First Class, on an application of the licensee may cause to the structure or object to be removed or otherwise dealt with as he thinks fit.
Section 19 provides for compensation for damages and it shall be determined by the licensee or anyone employed by him and in case of difference, the matter shall be determined by arbitration, except in case of Sub-section (3) of Section 12 which inter alia provides that District Magistrate shall fix the amount of compensation or of annual rent or of both, which should in his opinion be paid by the licensee to the onwer or occupier.
9. In view of what has been stated above, the legal provisions for the purpose of the case in hand are as follows :
(i) Before taking up any work, a scheme has to be prepared by the licensee and it has to be approved by the authority. The Authority means the Central Electricity Authority under the Electricity (Supply) Act, 1948.
(ii) After it is approved by the Authority, it shall be published in the official gazette and in the local newspapers.
(iii) While executing the scheme, the licensee shall cause as little damage as possible to the properties including land and building and shall pay damage if sustained by any person as provided under Section 10 of the Indian Telegraph Act, 1885.
(iv) Where the work is not under a scheme, for laying down and placing the supply lines, consent has to be obtained of the local authority or the owner or occupier concerned as provided under Section 12 of the Act of 1910.
10. Reading the provisions of Act of 1910, Act of 1948 and Indian Telegraph Act, 1885, we are of the opinion that compensation for damage, if any, caused while drawing line shall be determined by the District Magistrate as provided under the Indian Telegraph Act, 1885. We say so as this is the plea taken in the counter and also the argument advanced before us by the learned counsel for the petitioner.
11. Out attention has been drawn to a decision of Madhya Pradesh High Court in the case of Rajak and Ors. v. National Thermal Power Corporation : AIR 1988 MP 172. In that case, the petitioners sought for a writ of mandamus restraining the respondents from encroaching upon their fields and from putting up any erection or laying any overhead lines thereon. From the facts of the case, we find that the scheme was sanctioned and published in the Gazette. The Court held that though the scheme was altered with the concurrence of the Authority, the alteration was minor in nature and could be made without preparing a supplementary scheme. Therefore, the scheme is valid and operative and there is no legal bar to its implementation. However, in that case, compensation was paid as provided under proviso (d) to Section 10 of the Indian Telegraph Act, 1885.
12. A decision of this Court in the case of Orissa State Electricity Board and Anr. v. Pyari Mohan Patnaik and Ors. : 46 (1978) CLT 103 was referred to. In that case, there was a clear finding of the lower Courts that the transmission line" on and over the plaintiffs' land was not in accordance with any sanctioned scheme. Learned Single Judge accepted the position and held that the Board was not authorised to take the said transmission line in accordance with the Act. In that case, the order of the District Magistrate was also not obtained.
13. The Gazette Notification for this project vide Annexure-A/2 to the counter says as follows :
"(ii). 132 KV Bay Extension at Jharsuguda Grid Sub-station ............Estimated cost : Rs. 3,99,15,430/-.
This notification was published under Sub-section (3) of Section 28 of the Electricity (Supply) Act, 1948. Records have been produced before us. In our opinion, this is not a proper publication of the draft scheme as it did not indicate the areas over which transmission line was likely to go.
14. In the counter filed on behalf of the opposite parties, we did not find any statement as to whether approval of the Central Electricity Authority as required was obtained. Therefore, we hold that no sanctioned scheme was published properly.
15. A plea has been taken that at the relevant time, petitioner's land was vacant and petitioner constructed a house in the year 1994. As the fact situation shows no objection of the appropriate time was raised by the petitioner or his vendor. That being the position, the defect of any in the publication of the scheme cannot enure to the benefit of the petitioner, after a long lapse of time; particularly in the absence of any explanation therefore. A factual dispute has also been raised about the existence of any structure at the relevant point of time. That aspect cannot be gone into in a writ application and has to be adjudicated by the appropriate forum. We do not find any scope to entertain the challenge to the scheme.
16. In paragraph - 17 of the counter filed on behalf of opposite parties 1 and 2, it has been clearly stated that if the petitioner is aggrieved by the construction and if the petitioner has any right over the land, she may approach the District Magistrate for grant of compensation as provided under the Indian Telegraph Act, 1885. It has also been stated that nearly 90% of the work has been completed. As already stated in the prayer of the writ petition, an alternative prayer has been made that the writ application may be allowed making for any other safe arrangements in transmitting the said line over the house of the petitioner after full compensation in accordance with law is paid.
17. In view of the above position, we direct that the opposite parties may complete the work. But they shall take adequate measures for proper safety of the house and inmates of the petitioner. We further direct that the District Magistrate, Jharsuguda shall issue notice to the all the concerned parties to assess the compensation if any payable in terms of Indian Telegraph Act, 1885 within four months from the receipt of this Judgment.
The writ petition is disposed of with the above direction. No cost.
A. Pasayat, J.
18. I agree.