Karnataka High Court
S.M. Rao And Ors. vs The Deputy Commissioner And District ... on 6 August, 2003
Equivalent citations: ILR2003KAR4678, AIR 2004 (NOC) 235 (KAR), 2004 AIR - KANT. H. C. R. 468
Author: K. Ramanna
Bench: K. Ramanna
JUDGMENT Nayak, J.
1. What arises for decision in these Writ Appeals and Writ Petition is the validity of the proposal/action of the Karnataka Electricity Board (for short 'the Board') in erecting high tension line over the lands of the appellants for supply of additional power-500 KVA to M/s.Widia (India) Limited (for short 'the Widia'). The above action of the Board was assailed by the writ petitioners on the grounds that the same was contrary to the provisions of the Indian Electricity Act, 1910 the Electricity Supply Act, 1948 (for short, 'the Supply Act') and the Rules framed thereunder, Section 76M of the Karnataka Town and Country Planning Act, 1961, (for short, 'the Planning Act') and Condition 1(a) of the Work Order dated 27.05.1994. A learned Single Judge of this Court without finding any merit in the above contentions raised by the Writ Petitioners, by his common order dated the 5th day of April 1999, has dismissed the Writ Petitions.
2. The events leading to filing of the Writ Petitions be noted briefly, in the first instance and they are as follows.
3. Widia is a company incorporated under the provisions of the Companies Act and it is engaged in the manufacture of industrial tools and tools tips in its factory situated at No. 8, 9th Mile, Tumkur Road, Bangalore. For carrying on its industrial operations, the company has high tension power installation and the power is being supplied by the Board. In order to cater to its expanded business activities, the company made an application to the authorities for sanction of additional power to the extent of 500 KVA. The High Power Committee constituted by the Government of Karnataka in its 38th Meeting held on 29.03.1993 resolved to sanction additional power of 500 KVA to the company subject to the condition that after expansion the unit should avail power supply i.e., existing 2,444 KVA + add. 500 KVA (total of 2,944 KVA) at 66 KV only. In pursuance of the above resolution and recommendation of the High Power Committee, the Government of Karnataka, Department of Industries and Commerce in its letter dated 05.05.1993 informed the company that it has been sanctioned an additional power of 500 KVA subject to the above mentioned condition.
4. Pursuant to the sanction made by the Government of Karnataka, the Chief Engineer of the Board in his letter dated 10.06.1993, directed the company to pay Rs. 6,00,000/- towards initial security deposit and Rs. 1,84,300/- towards meter security deposit for arranging power supply of 66 KV. The company de-posited the necessary amounts. The Chief Engineer caused a detail survey after the sanction of the additional power and examined the feasibility or drawing the power supply through underground line and found that it would be very difficult to draw the power supply through the underground cable to the premises of the company's unit as the cable and connection of the tapping structure etc., have to pass through various private lands, which is not safe nor feasible for the 66 KV underground cable. The Chief Engineer also pointed out that the underground cable has to run along the National Highway No. 4 wherein co-axial telecommunication cable exists with considerable induced voltage levels. In view of these difficulties in drawing the underground line for supply of electricity, the Chief Engineer recommended that it is safer to supply the power to the company by drawing line extension through overhead. Accepting the recommendation of the Chief Engineer, the Board estimated the cost of construction of 66 KVA public SC overhead tap line at an approximate cost of Rs. 52,72,000/- of which the company was required to deposit 20% of the said sum towards supervision charges. Accordingly, the company deposited a sum of Rs. 8,78,271- on 17.1.1995 towards supervision charges. The company also deposited a sum of Rs. 8,00,000/- on 17.01.1995 towards tree cutting and land compensation charges. It is stated that this amount deposited by the company is in addition to the meter security deposit made on 07.05.1994.
5. The Board having taken decision to construct 66 KVA public SC overhead tap line as aforesaid, issued notification dated 18.02.1995 and the same was published in Deccan Herald inviting objections to the proposal. Since no objections were received to the proposed Scheme, the Board and the company commenced the execution of the Scheme at substantial cost out of the total estimated cost of Rs. 61,00,000/- and 10 towers out of 13 towers were built for supply of power.
6. At that point of time, the appellants in Writ Appeal Nos. 2669-2671 of 1999, filed Writ Petition Nos. 8453 to 8455 of 1996 in this Court praying for a declaration that the proposal to erect high tension towers and line over their lands is illegal and that the company and its Directors have no right to carry on any operation on the private lands of the petitioners and for a consequential direction to the Board, the company and its contractors not to interefere with peaceful possession and enjoyment of the petitioners. The main contentions in those Writ Petitions are that the action of the company in erecting towers and drawing the lines tantamounts to exercising powers of eminent domain over the property of the petitioners and therefore, its action was totally void and without authority of law; the Service line from Chikkasandra to the company's factory was specifically directed to be laid by underground cable and not by any other mode as reflected by Condition 1(a) of the Work Order dated 27.05.1994 of the Chief Engineer and that work order was not modified and, therefore, the company could not have deviated from the said condition which was prescribed as a safety measure. It was also contended that in view of Regulation 4.5(a) the consumer like the company could not at all draw any service line whether by an underground cable or overhead line without consent of the owners of the lands through whose lands the prospective line has to pass. It was also contended that since the company did not comply with the Condition 1(a) of the Work Order within the stipulated time, the power sanctioned in its favour stood cancelled in terms of Regulation 4.06 and, therefore, there was no scope for the company to draw service line. It was also contended that the service line being permanent in nature, drawing of such line tantamounts to a 'development' within the meaning of Section 2(1)(C) of the Planning Act, read with Sections 14 and 76M thereof and since the company did not secure permission from the planning authority to erect high tension towers, the entire work done by the company is rendered illegal and consequently liable to be removed on that count alone.
7. When W.P.Nos. 8453 to 8455 of 1996 came up for hearing before a learned Single Judge of this Court on 22.7.1996, a request was made on behalf of the Board that it may be permitted to approach the District Magistrate under the provisions of Section 51 of the Indian Electricity Act read with the provisions of the Indian Telegraphs Act. The said request of the Board was opposed by the writ petitioners. However, the learned Single Judge of this Court recording the objections of the Writ Petitioners permitted the Board to move the District Magistrate under Section 51 of the Indian Electricity Act. On the same day, the learned Judge continued the interim order granted at the time of entertaining the Writ Petitions restraining the Board and the Company and any one claiming through them thereby meaning the contractor also from carrying out any work of laying high tension overhead lines over the lands of the Writ Petitioners. The learned Single Judge also reserved liberty to the Board to move the Court for modification of the interim order in the event of the Board securing favourable orders from the District Magistrate.
8. As permitted by the learned Single Judge, the Board moved an application before the District Magistrate and the District Magistrate after conducting enquiry through the Sub Divisional Magistrate and after giving opportunity to the parties to file their pleadings/objections and after hearing them, passed an order dated 23.04.1997 directing removal of the obstructions.
9. Being aggrieved by the above order of the District Magistrate, the petitioners in W.P.No. 8453 to 8455 of 1996 except the fifth petitioner therein preferred Writ Petition Nos. 12720 and 12721 of 1997 in this Court for quashing the order of the District Magistrate. In support of those two Writ Petitions, it was contended that Section 51 of the Indian Electricity Act, 1910 is not applicable to the works done by the private individual like the contractor appointed by the company and, therefore, the order of the District Magistrate is a nullity; the impugned order is not a speaking order; the impugned order is biased; the District Magistrate did not consider relevant materials and report of the Assistant Commissioner-cum-Sub Divisional Magistrate, Bangalore North Division, the supply of electrical energy to the consumers is a public work and this work should have been done by the Board itself and ought not to have delegated that power in favour of a private individual like the contractor appointed by the company; what was sought to be executed by the contractor was contrary to the work order and provisions of Section 51 of the Indian Electricity Act, 1910; since the company did not comply with Condition 1 (a) of the work order, the sanction of additional power itself lapsed and, therefore, all subsequent actions of the company and its contractor are nullity in the eyes of law; the District Magistrate did not properly appreciate the question of hardship and inconvenience that it likely to cause to the owners of the lands in ordering removal of the obstruction; the District Magistrate has completely ignored the feasibility of drawing the line through certain lands belonging to the Government and quasi Government authorities; the District Magistrate did not hold the proper inquiry as envisaged under Sections 10 to 16 of the Indian Telegraphs Act, 1885 and violated the principles of natural justice.
10. One more Writ Petition being W.P. No. 1447 of 1996 was filed by M/s. Vishambar Trust seeking similar declaration and consequential reliefs as sought for by the petitioners in W.P. Nos. 8453 to 8455 of 1996 by urging same set of grounds. Since the subject matter of dispute brought before the Court in the aforementioned six Writ Petitions is the same and even the reliefs sought for by the petitioners are also identical, the learned Single Judge clubbed ail six Writ Petitions, heard them together and dismissed all those Writ Petitions by a common judgment dated 5th April, 1999 without finding any merits in the contentions raised on behalf of the petitioners.
11. The petitioners in Writ Petition Nos, 8453-8455 of 1996 and Writ Petition Nos. 12720 and 12721/1997 have preferred Writ Appeal Nos. 2669 to 2671, and 2697 and 2698 of 1999 whereas Writ Appeal No. 3887 of 1999 is filed with the leave of the Court granted on 21.6.1999 claiming that the Appellant therein is the successor-in- interest of the petitioner in W.P.No. 14473 of 1996 against the common order of the learned Single Judge dated 5th April, 1999.
12. In the meanwhile, one more Writ Petition in W.P.No.8222 of 2000 is filed by five persons claiming to be Indian citizens and permanent residents of Bangalore as public interest litigation to assail the action of the Board in permitting the company and its contractor to erect the towers and lay overhead lines through the lands in question. In this Writ Petition also, it is contended that the impugned action is contrary to the provisions of the Indian Electricity Act, 1910, Indian Electricity Supply Act, 1948, Karnataka Country and Town Planning Act, 1961 and the Rules and Regulations framed thereunder. The petitioners have sought declaration that the impugned action of the Board, the company and its Directors per se illegal and for a consequential direction to restrain the respondents, their men, agents, servants or any person acting on their behalf from entering upon or interfering with the peaceful possession and enjoyment of the lands in question by the respective owners. Since the factual and legal questions arising in the writ appeals and in W.P.No. 8222 of 2000 are substantially the same, we thought it appropriate to club the above six writ appeals with W.P.No.8222 of 2000. Accordingly, we clubbed writ appeals and Writ Petition and heard them together and they are being disposed of by this common judgment.
13. On behalf of the Appellants and the Writ Petitioner, Sri K. Radhesh Prabhu, led the arguments. The other learned Counsel appearing for the Appellants and the petitioners supplemented the contentions of Sri Radhesh Prabhu. On behalf of the Board, Sri Narasimha Murthy, learned Senior Counsel and Sri N.K.Gupta learned Standing Counsel for the Board appeared and argued. On behalf of the company, Sri G.V.Shantharaju, learned Senior Counsel appeared and argued.
14. Sri Radhesh Prabhu, while assailing the judgment of the learned Single Judge would reiterate the same contentions to which we have made reference supra. Sri R.N. Narasimha Murthy, learned Senior Counsel, per contra, at the threshold, would contend that the Writ Petitioners have utterly failed to show how any of their legal rights is violated by the impugned action of the Board and the company in erecting the towers and drawing overhead lines. It is stated by the Board in its pleading that none of the towers were erected in the lands of the petitioners. Sri Narasimha Murthy, would contend that the right to property is no longer a fundamental right; the petitioners in order to maintain the Writ Petitions should establish that some of their legal rights over the lands in question are violated by the impugned action. Sri Narasimha Murthy, would contend that the existence of a Scheme is not a condition precedent to exercise the power under Section 51 of the Indian Electricity Act, 1910 read with Section 10 of the Telegraph Act. In otherwords, according to Sri Narasimha Murthy, neither framing of the Scheme nor publication of the same is necessary to exercise the power conferred under Section 51 of the Electricity Act. Sri Narasimha Murthy would maintain that the provisions of Section 28 of the Supply Act do not limit the power of the Board under Section 10 of the Telegraph Act inasmuch as Section 28 of the Supply Act is only an enabling provision and this position is quite clearly reflected in the word 'may' occurring in that Section. Sri Narasimha Murthy would highlight the fact that the State action in granting additional supply of 500 KVA in favour of the company is not challenged by anyone and, therefore, it becomes necessary for the Board to take prompt action to supply the additional power to the company as envisaged under Section 18 of the Supply Act. Sri Narasimha Murthy would maintain that it is not the right of the petitioners to complain about the mode and manner of supply of electricity to the consumers under Section 18 of the Act. Sri Narasimha Murthy would maintain that the mode and manner of supply of electricity is a technical subject and necessary latitude should be permitted to the Board to decide and determine the mode and manner of supply of power to the consumers and the petitioners cannot dictate the terms to the Board to suit their convenience, or to avoid individual hardship. Sri Narasimha Murthy also contested the correctness of the argument of the petitioners that the Board had abdicated its statutory power in favour of the company and its contractor in erecting the towers and laying the lines. According to Sri Narasimha Murthy, the Board did not abdicate its power and the work was executed by the company and its contractor under direct supervision of the Board. Sri Narasimha Murthy would also contend that since the existing line cannot bear the load of additional 500 KVA, laying new line became absolutely necessary. The whole work of erecting towers and laying lines has been done and effectuated under the direct and active supervision of the Board itself and that the company has paid the entire supervision charges. Sri Narasimha Murthy would submit that once the towers are erected, lines are drawn, both of them would become the property of the Board not only in terms of the statute but also in the light of the judgments of the Supreme Court in CALCUTTA ELECTRICITY SUPPLY CORPORATION v. COMMISSIONER OF WEALTH TAX, WEST BENGAL, and THE UPPER GANGES VALLEY ELECTRICITY SUPPLY Co. LTD. v. THE U.P. ELECTRICITY BOARD.,
15. Sri G.V.Shantharaju, learned Senior Counsel for the Company, while reiterating and supplementing the contentions raised by Sri Narasimha Murthy would further contend that since the owners of the land and not the Society have challenged the impugned action of the Board and that of the Company, it shows that at the relevant point of time, the land was only agricultural land and not a developed land as claimed by the petitioners. Sri Shantharaju would maintain that no substantial ground is made out by the petitioners to grant the reliefs and that the Writ Petitions are grounded on technicalities, if not on hyper-technicalities.
16. Before we proceed to consider the rival contentions of the learned Counsel for the parties, certain developments which have taken place after Writ Petitions were disposed of by the learned Single Judge on 05.04.1999 and which have bearing on decision-making in these Writ Appeals and Writ Petition may be noted. Although the Board in para-4 of its statement of objections filed in Writ Petition No. 8453-8455 of 1996 had contended that "the Board has sponsored a Scheme of laying overhead high tension line from the portion of tapping 66 KV to the 4th Respondent" i.e., WIDIA and in pursuance of that Scheme notice was published as required under the provisions of Section 28 of the Supply Act, now it transpires that admittedly there was no such scheme and what was stated in para-4 of the statement of objections is factually incorrect. This position is made clear by the Board itself in its affidavits dated 30.10.2002, 01.01.2003 and 04.03.2002 filed in Writ Appeals 2669-2674 and 2697-2698 of 1999. In paras 2-7 of the affidavit of the Board dated 04.03.2002 sworn to by its Chief Engineer, Electricity Major Works, KPTCL, Bangalore, it is stated thus:
"2. It is respectfully submitted that 66KV. Single Circuit Transmission Line to supply power to M/s. WIDIA (India) Limited to the extent of 500 KVA has been drawn as deposit contribution work of M/s.WIDIA(lndia) Limited, without a formal Scheme.
3. I respectfully submit that there was non-compliance of the provisions of Section 28 A of the Electricity (Supply) Act, 1948 in not publishing the Schemes in the official Gazette and non submission of the same to Central Electricity Authority though both were published in daily news papers concerning drawing of 66 KV Single Circuit transmission line to supply power to M/s.WIDIA (India) Limited, and also concerning establishment of 1 x 20 MVA 66/11KV Sub-Station next to WIDIA (India) Limited, at a cost of Rs. 245 Lakhs which is fed by the same line. Therefore, in order to comply fully with the provisions the Act KPTCL has now formulated a composite Scheme concerning 66 KV SC line from the 66 KV Peenya-Nelamangala to WIDIA (India) Limited Tumkur Road, Bangalore, and establishing 1 x 20 MVA, 66/11 KV Sub- Station at WIDIA making use of the line already drawn and Station already set up for providing power supply to residential lay-outs, villages and industries that have come up / are coming around WIDIA Factory has been prepared, as required under Section 28- A of the Electricity (Supply) Act, 1948 the same was published in Karnataka Gazette dated 16.01.2002. A photostat copy of the notification dated 11.01.2002 published in Karnataka Gazette dated 16th January 2002 is produced herewith and marked as Annexure RULE 12. The said notification is also published in the Times of India Newspaper dated 13.01.2002 for the information of the public. A Photostat copy of the paper publication is produced herewith and marked as Annexure RULE 13.
4. It is submitted that a copy of the above detailed Project Report has been sent to the Central Electricity Authority, Seva Bhavan, R.K.Puram, New Delhi, along with a letter dated 9th January 2002, Photostat copy of the letter dated 9th January 2002 is produced herewith and marked as ANNEXURE RULE 14 and a photostat copy of the Project Report is produced herewith and marked as ANNEXURE RULE 15. The Secretary of the Central Electricity Authority by his letter dated 28th January 2002 has acknowledged the details of Project Report for the Scheme of establishing 1 x 20 MVA 66/11KV Sub-Station at Widia, Nagasandra Village, under Section 28(2A) of Electricity (Supply) Act 1948. The Photostat copy of the letter dated 28lh January 2002 received from the Secretary, Central Electricity Authority is produced herewith and marked as ANNEXURE RULE 16. Therefore, it is submitted that the KPTCL has now taken action as required under the provisions of Section 28 of the Electricity (Supply) Act 1948, complying with the requirements of the said provisions. The Respondents 2 to 4 crave the leave of this Hon'ble Court to take these factors into consideration at the time of hearing of the aforesaid appeals.
5. I respectfully further submit that the Scheme for establishing the Station included in the above Scheme has already been approved by the Technical Committee on 16th April 1997. Copies of the Station Scheme, Agenda placed before the Technical Committee and Proceedings are produced herewith and marked as ANNEXURE RULE 17, RULE 18 and RULE 19 respectively.
6. It is respectfully submitted that when a Notification was issued informing the public that the Respondent is drawing 66 KV Line, neither the appellants nor any other person had filed any representation. However when the actual line was being drawn the Petitioner obstructed the work and also filed Writ Petitions before this Honb'le Court. This Hon'ble Court by way of an interim order directed the Respondent to approach the Deputy Commissioner for removal of obstructions as contemplated under Section 51 of the Indian Electricity Act 1910 read with Indian Telegraph Act 1885. In accordance with the directions, the Respondents approached the Deputy Commissioner/District Magistrate and the Deputy Commissioner after giving full opportunity of hearing to the petitioner permitted the respondents to draw the line over the lands of the petitioners as proposed. Further, it is submitted that while drawing the line to lessen the alleged inconvenience if any, to the first appellant no tower has been erected in his land and only the line crosses over the land that too at the edge.
7. It is respectfully submitted that as required under law, the Chief Electrical Inspector to the Government of Karnataka has also inspected the line that has been drawn and the Station that has been established and after inspection of the work has permitted the Respondents to charge the line. A copy of the Permission Letter granted by Chief Electrical Inspector is produced herewith as ANNEXURE RULE 20."
17. The Board has produced a copy of the notification No. SEE/MWC/EEE (o) AEECE) -2/1- 62/4473-76, Bangalore, dated 11th, January 2002 published in the Karnataka Gazatte dated 16th January 2002 with its Affidavit dated 04.03.2002 at page-6. The Scheme formulated under Section 28(but wrongly mentioned as Section 28(A) in the Notification) of the Supply Act provides for 66 KV SC line from the existing 66 KV Peenya - Nelamangala line to WIDIA(lndia) limited and that line passes through among other areas Siddahalli (Siddedahalli) village. The grievance of the appellants-petitioners in these writ appeals and the Writ Petition is with regard to the lands situate in Siddahalli village. Although the Appellants in their Statement of Objections dated 04.03.2002 to the Affidavit filed by the Board have contended that the new Scheme proposed under Section 28 of the Supply Act and published in the Karnataka Gazette dated 16.01.2002 (ANNEXURE RULE 12) is different from the service line to Widia, it is not substantiated by producing any satisfactory evidence. A copy of the project report prepared by the KPTCL is produced at page-12 with the Affidavit. Para-3 of the said report reads thus:
"3) EXISTING ARRANGEMENTS: WIDIA and other surrounding village are fed from
1) 11 KV F-5 feeder from 220 KV SRS Peenya Station.
2) F-4 Feeder from Bindavan 66KV sub- station.
3) F-5 Feeder from Nelamangala 66 KV station.
At present there is no 66 KV station is between Nelamangala and Peenya.
All the above 11 KV feeders feeing the area round WIDIA are overloaded due to energy losses and poor voltage regulation. The power transformers at Nelamangala, Peenya and Brindavan substation are also fully loaded and needs augmentation to meet the load growth or alternatively a new sub-station is to be formed. To overcome the above problems it is proposed to establish a new 66KV sub-station at M/s. WIDIA factory.
The line has already been constructed under DCW works for arranging Power supply to WIDIA consumer station.
M/s.WIDIA is setting up a 66KV substation and the same is ready for commissioning. KPTCL has proposed to establish 1x20 MVA, 66/11 KV sub- station adjacent to 66 KV S/s of WIDIA which is a HT consumer of KPTCL for which WIDIA is agreed to spare land."
18. What is stated in para-3 of the report is the changed circumstance, which weighed with the Board to prepare a revised comprehensive Scheme at a cost of Rs. 308.66 lakhs.
19. In view of these developments, Sri Narasimha Murthy, would contend that the Writ Appeals and the Writ Petitions do not survive for decision on merit and they have become infructuous and no purpose would be served by reviewing the earlier action of the Board impugned in the Writ Petitions. Sri Narasimha Murthy contended that even holding that whatever the Board did before framing the revised Scheme published in the Karnataka Gazatte dated 16.01.2002 was illegal or irregular, that fact itself would not entitle the appellants- petitioners to seek mandamus to the Board not to do right thing in conformity with the provisions of the Indian Electricity Act, 1910, the Supply Act and the Indian Telegraph Act, 1885.
20. We find force in the contention of learned Senior Counsel. The revised Scheme prepared by the KPTCL under Section 28 of the Supply Act is more comprehensive Scheme than the one earlier published on 18.02.1995 in the Deccan Herald produced at page-201 of Paper Book-l. The grievance made in the present writ proceedings relate to the lands situate in Siddahalli village and whole of Siddahalli is covered by the revised Scheme dated 11th January, 2002. Therefore, merely because the earlier notification was issued by the KPTCL in the Karnataka Gazatte dated 18.02.1995 on the assumption that there existed a Scheme framed by it under Section 28 of the Supply Act and ultimately it was found that there was no such Scheme that circumstance or fact itself would not come in the way of the KPTCL, as a donee of the statutory power, in exercising the power conferred under Section 51 of the Electricity Act, 1910 read with Section 10 of the Indian Telegraph Act, 1885 or under Section 28 of the Supply Act to frame a revised Scheme as has been done now. It is not that the law prohibits the KPTCL from framing a valid Scheme in terms of the statutory power simply because on an earlier occasion it had committed some irregularity or illegality either in framing the Scheme or publishing the same or with regard to any other incidental and / or attendant matter.
21. It is well settled that the Court in the decision-making can take into account the subsequent developments and mould reliefs or may not grant the reliefs in the changed circumstances. Such a power is available to both trial Court and appellate Court. The pendency of these writ proceedings in this Court does not fructify into any legal rights of the appellants-petitioners in these writ appeals and Writ Petition. If subsequent developments render the decision-making unnecessary with regard to the question raised in the original proceedings, the Court may be justified in refusing to decide such question on the ground that they have become academic. At the same time, it is well settled that if the Court has to take into account a changed circumstance for decision- making, such changed circumstance should not be an event brought about by the party himself by his own conduct and over which he had control. The Supreme Court in RAMESHWAR AND ORS. v. JOT RAM AND OTHERS, held -
"One may as well add that while taking cautious judicial cognizance of 'post- natal' events, even for the limited and exceptional purposes explained earlier, no Court will countenance party altering, by his own manipulation, a change in situation and plead for relief on the altered basis."
22. The Supreme Court in the same decision has stated the principles governing the impact of subsequent happenings or events on the decision-making in para-9 thus:
"9. The impact of subsequent happenings may now be spell out. First, its bearing on the right of action, second, on the nature of the relief and third on its importance to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. Patterson v. State of Albama, (1934) 294 U.S.600, 607, illustrates this position. It is important that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow. Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category (later spelt out) but may influence the equitable jurisdiction to mould reliefs. Conversely, where right have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. LACHMESHWAR PRASAD v. KESHWAR LAL 1940 FCR 84 = AIR 1941 FC 5 falls in this category. Courts of justice may, when the compelling equities of a case oblige them, shape reliefs - cannot deny rights - to make them justly relevant in the updated circumstances. Where the relief is discretionary, Courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself , on the presence or absence of certain basic facts of the time the relief is to be ultimately granted, the Court, even in appeal, can take note of such supervening facts with fundamental impact. Vankateshwaralu, read in its statutory setting, falls in this category. Where the cause of action is deficient but later events have made up the deficiency, the Court may, in order to avoid multiplicity of the litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. All these are done only in exceptional situation and just cannot be done if this statute, on which the legal proceeding is based, inhibits by its Scheme or otherwise, such change in cause of action or relief, The primary concern of the Court is to implement the justice of the legislation. Rights vested by virtue of statute cannot be divested by this equitable doctrine (See Chokalingam Chetty ; 54 Mad. LJ 88 = (AIR 1927 PC 252 ) . The law stated in Ramji Lal v. State of Punjab, (F.B )) is sound:
"Courts do very often take notice of events that happen subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings to be amended for including a prayer for relief on the basis of such events but this is ordinarily done to avoid multiplicity of the proceedings or when the original relief claimed has, by reason of change in the circumstances, become in appropriate and not when the plaintiffs suit would be wholly displaced by the proposed amendment (see Steward v. The North Metropolitan Tramways Company (1885) 16 QBD 178) and a fresh suit by him would be so barred by limitation".
23. Thus it is well established principle that the Courts can take notice of the subsequent events and mould the relief accordingly, but this can be done only in certain exceptional circumstances indicated by the Supreme Court in para-9 of the judgment in RAMESHWAR (supra ). However, this equitable principle which permits the Court to take into account subsequent events in moulding the relief or refusing the relief cannot be pressed into service by the Courts to divest the rights already vested by a statute. Such a situation does not exist in this case because we find that by refusing relief in the changed circumstances, none of the existing legal rights of the appellants-petitioners would be divested or impaired. A Division Bench of the Andhra Pradesh High Court SYED JALEEL ZANE v. VENKATA MURLIDHAR AND OTHERS, AIR 1971 AP 328, (1980) 1 ALT 43 (NRC) held thus:
"'.. The inherent power of the Court to take notice of the subsequent circumstances to do complete justice between the parties and to mould the relief accordingly, is undoubted. Where such a course tends to avoid multiplicity of proceedings, it is all-the-more desirable that, the Court exercises its jurisdiction and inherent power in this direction."
24. We also find considerable force in the contention of the Sri Narasimha Murthy that on account of the impugned action of the KPTCL none of the legal rights of the appellants- petitioners are violated or impaired. Sri Narasimha Murthy would point out that none of the towers were erected in the lands of the appellants-petitioners. Sri Narasimha Murthy would maintain that since, no longer the right to hold property is a fundamental right, there is no need for the Court to review the impugned action on merit, particularly at the behest of the appellants-petitioners. Prior to the Constitution (44th Amendment) Act, 1978, the right to property was guaranteed by Article 31. While clause (1) of Article 31 has been shifted from Part-Ill, to Article 300A, clause (2) of that Article, which dealt with compulsory acquisition of property, has been repealed. Sub-clause(f) of clause (1) of Article 19, which guaranteed the right to acquire and hold the property, has also been omitted by the same 44th Amendment Act, 1978. The consequence of these changes brought about by the Constitution (44th Amendment) Act, 1978, in short is that - (i) the right to hold property has ceased to be a fundamental right under the Constitution of India; (ii) it has been left to the Legislature to deprive a person to the authority of law; if such law takes away a man's property without payment of any compensation, he shall have no remedy before a Court of law, and the validity of such law cannot be challenged before the superior Courts on the ground that no compensation has been paid or made payable by such law.
25. Of course, if one's property is taken away by the Executive without the authority of law, he would still be entitled to legal relief on the ground that such executive action is in contravention of Article 300A, but since the provision in the present Article has been brought outside the purview of Part ill, the aggrieved individual would not be competent to move the Supreme Court under Article 32 for any violation of Article 300A and his remedy would be under Article 226 or by a Civil Suit.
26. In JILUBHAI NANBHAI KHACHAR v. STATE OF GUJARAT5, , 1995 Supp. (1) SCC 596 the Apex Court held that the right to property under Article 300A is not a "basic feature" of the Constitution and it is only a Constitutional right. In the same judgment, the Apex Court also held that the right to property under Article 300A is subject to State restraints and regulation. Despite this position in law, it is trite, the Board has to exercise the statutory power in conformity with the postulates of Article 14 of the Constitution. The Supreme Court in RAJASTHAN STATE ELECTRICITY BOARD v. MOHAN LAL, held that the Rajasthan State Electricity Board is a "State" within the meaning of Article 12 of the Constitution. As such, its administrative and statutory actions which have the effect of affecting civil rights of others, should conform to the postulates of Article 14, Viz., reasonableness, fairness and non-arbitrariness.
27. The Board is statutorily empowered by virtue of Section 51 of the Indian Electricity Act read with Section 10 of the Indian Telegraph Act, 1885 to supply energy to the public subject to such conditions and restrictions, if any, the Central Government or State Government, as the case may be, may think fit to impose. Section 10 to 19 and Section 34 of the Indian Telegraph Act deal with the powers conferred by a telegraph authority with respect to placing of telegraph lines and posts for the purposes of telegraph established or maintained by the Government. The power under Section 10 of the Telegraph Act may be exercised by the Board in relation to persons other than a local authority without giving any notice. Under Clause (d) of Section 10 of the Telegraph Act the Board is placed under a statutory obligation to pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of the power by the Board in placing and maintaining a telegraph line under, over, along or across, and posts in or upon, any immovable property. The power conferred on the Board under Section 51 of the Indian Electricity Act, 1910 and Section 10 of the Indian Telegraph Act, 1885 is a species of "eminent domain" power of the State. Since the right to hold property is no longer a fundamental right, the affected owner of the immovable property on account of the Board's action, in placing and maintaining telegraphic line could only claim compensation envisaged under clause (d) of Section 10 of the Telegraph Act but he cannot question the very exercise of the power of the Board conferred on it under Section 51 of the Electricity Act readwith Section 10 of Telegraph Act. It was pointed out by Sri Narasimha Murthy at the time of hearing that since the Scheme notified vide Notification No. SEE/MWC/EEE (o) /AEECE) -2/1- 62/4473-76, dated 11.1.2002 is not yet commissioned in deference to the Interim Order passed by this Court, the safety aspects of the project would be considered and appropriate measures / devices would be adopted in that regard when the Board proceeds to commission the project.
Sri Narasimha Murthy also brought to the notice of the Court that the proposed lines pass through the edges of the lands of the appellants and no tower is erected in their lands.
28. We do not find any violation or impairment of any of the legal rights of the appellants-petitioners by the proposed action of KPTCL in laying the lines over the lands of the appellants-petitioners. No legal rights of the appellants-petitioners were shown to have been invaded or threatened. It is trite, the appellants, to have standing in Court, must show an injury or a threat to a particular right of their own which is recognised and protected by a rule of law. There can be no standing unless the right invaded is a legal right - one of property, one arising out of contracted one protected against tortuous invasion, or one founded on a statute. Neither the Constitution nor the common law recognizes any interest of absolute freedom of a person to enjoy his property as he likes and his freedom is limited by social control exercised through the instrumentality of law. In that view of the matter, there may not be any necessity for the Court to review the impugned action of the Board in these writ proceedings particularly in the context of the changed circumstances/ developments noted above. Therefore, in ordinary course, we would have dismissed the writ appeals & writ petitions without going into the contentions of Sri Radhesh Prabhu, learned Counsel for the appellants. Nevertheless, the decision on certain points argued by the Learned Counsel for the parties would have bearing on the validity of the execution of the revised Scheme framed by the Board under Section 28 of the Supply Act and notified in the Karnataka Gazette dated 16.01.2002, we think, it will be appropriate to deal with such points.
29. The main plank for the appellants petitioners to attack the impugned action of the Board in laying overhead lines over their lands is the fact that without their being any Scheme framed by the KPTCL under Section 28 of the Supply Act it published a notification dated 18.02.1995 as if there was a Scheme and, therefore, the entire further action taken thereto is apparently illegal and irregular. The above argument would be acceptable to the Court provided that the Board in order to supply electricity to the consumers should necessarily frame a scheme envisaged under Section 28 of the Supply Act. If that is so, the condition precedent for the Board to supply electricity is to first frame a Scheme under Section 28 of the Supply Act and then take appropriate further steps in accordance with the said Act. But Sri Narasimha Murthy placing reliance on the provisions of Section 51 of the Indian Electricity Act and Section 10 of the Indian Telegraph Act would contend that it is not necessary that the Board in order to supply power to the consumers should necessarily frame a Scheme envisaged under Section 28 of the Supply Act. Learned Senior Counsel would point out that Section 28 of the Supply Act is only an enabling provision and not mandatory. In other words, according to learned Senior Counsel, only if the Board wants to frame a Scheme for the purpose of supply of electricity to a particular category of consumers, it can proceed under Section 28 of the Supply Act and frame a Scheme and not otherwise.
30. We find merit in the above contention of Sri Narasimha Murthy. In the instant case, the decision of the high power committee constituted by the Government of Karnataka in its 38th meeting held on 29.03.1993 to sanction additional power of 100 KVA to the Company is not challenged by any of the appellants- petitioners or any one else. If that is the position, under Section 18 of the Supply Act which deals with General duties of the Board, the Board is required to take prompt action to supply adequate electricity to the intended consumers as soon as possible as mandated under Clauses (a) and (b) of Section 18.
31. Section 51 of the Indian Electricity Act, 1910 reads as follows:
"51. Exercise in certain cases of powers of telegraph authority- Notwithstanding anything in Sections 12 to 16 (both inclusive) and Sections 18 and 19, the State Government may, by order in writing, for the placing of electric supply-lines, appliances and apparatus for the transmission of energy or for the purpose of telephonic or telegraphic communications necessary for the proper co-ordination of works, confer upon any public officer, licensee or any other person engaged in the business of supplying energy to the public under this Act, subject to such conditions and restrictions (if any) as the State Government may think fit to impose, and to the provisions of the Indian Telegraph Act, 1885 (13 of 1885), any of the powers which the telegraph-authority possesses under that Act, with respect to the placing of telegraph established or maintained by the Government or to be established or maintained.
32. Section 10 of the Indian Telegraph Act, 1885 reads thus:
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 all persons interest for any damage sustained by them by reason of the exercise of those powers."
33. Neither Section 51 of the Electricity Act nor Section 10 of the Telegraph Act speaks of any Scheme. Section 51 of the Electricity Act authorises the State Government to confer upon any public officer, licensee or any persons engaging in the business of supplying energy to the public under the Electricity Act subject to such conditions and restrictions, if any, as the State Government may think fit to impose, any of the powers which the telegraph-authority possesses under the Telegraph Act. Section 10 of the Telegraph Act authorises the telegraph authority to place and maintain a telegraph line under, over, along or across, and posts in or upon, any movable property. If the State Government confers upon any public officer, licensee or any other persons engaged in the business of supplying energy to the public under the Electricity Act, by invoking the provisions of Section 51 of the said Act, the authorised officer or licensee or any other person can invoke provisions of the Telegraph Act for placing electricity supply lines, appliances and apparatus for the transmission of energy or for the purpose of telephonic or telegraphic communications necessary for the proper coordination of works. Sections 10 to 19 and 34 of the Indian Electricity Act deal with powers of telegraph authority with respect to placing of telegraphic line and posts for the purpose of telegraph established or maintained or for the purpose of telegraph to be established or maintained by the Government. Thus, it could be seen that neither Section 51 of the Electricity Act nor the aforementioned provisions of the Telegraph Act envisage framing of a Scheme for placing of electricity supply lines, appliances and apparatus for transmission of the energy or for the purpose of telephonic or telegraphic communications necessary for the proper Coordination of the works.
34. Where that is the position, Section 28 of the Supply Act which deals with preparation and sanctioning of the Schemes, provides thus:
"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 per acquisition of generating stations, tie-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 Authority.
(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.
35. Firstly, Sub-section (1) of Section 28 is only an enabling provision which enables the Board or a Generating Company to prepare a Scheme or Schemes relating to the establishment or acquisition of generating stations, tie- lines, sub-stations or transmission lines, if the Board so desires. This intendment of the Parliament is reflected by the words "may prepare" occurring in Sub-section (1). Section 28 does not mandate that the Board should frame a Scheme for supply of electric energy to the consumers. Of course, under Section 28, the Board in its discretion may prepare a Scheme or Schemes in order to supply electrical energy to the consumers.
36. The question for consideration is whether the Board could supply electricity to consumers without framing a Scheme envisaged under Section 28 of the Supply Act, by virtue of power conferred upon it under Section 51 of the Electricity Act-read with Section 10 of the Telegraph Act. In other words, the question is whether the provisions of Section 28 of the Act limit the power of the Board for placing electric supply lines, appliances and apparatus for transmission of energy to the consumers in terms of Section 51 of the Electricity Act. In our considered opinion, we do not find any such limitation in the provisions of Section 28 of the Supply Act. Therefore, it is permissible for the Board, in its discretion, to supply electricity to the consumers by erecting towers and lines without framing any Scheme under Section 28 of the Supply Act in that regard. Therefore, the non-existence of the Scheme envisaged under Section 28 of the Supply Act before the Board issued Notification dated 18.02.1995, would not invalidate the steps taken by the Board to supply additional power to Widia and that action of the Board could still be sustained by virtue of power of the Board under Section 51 of Electricity Act read with Section 10 of the Telegraph Act. It is not the case of the appellants/petitioners that in erecting towers and drawing supply lines in order to supply additional power to an extent of 500 KVA to Widia, the Board has violated any of the provisions of Section 51 of the Electricity Act and / or Section 10 of the Telegraph Act. If the impugned action of the Board could be sustained on the basis of provision of Section 51 of the Electricity Act read with Section 10 of the Telegraph Act, that action would not become invalid or is vitiated merely because before taking steps to erect towers and laying supply lines, the Board had issued a Notification dated 08.02.1995 purported to be under Sub-section (3) of Section 28 of the Supply Act on the assumption that there existed a Scheme. The interpretation we have adopted is purposive and it will enable the Board to perform general duties placed on it under Section 18 of the Supply Act to supply electricity to the areas which are not adequately supplied with electricity as soon as possible. Therefore, the contention of Sri Narasimha Murthy that it is permissible for the Board to take steps to supply additional power of 500 KVA to the company without preparing the Scheme envisaged under Section 28 of the Supply Act deserves our acceptance. If the above contention of the Sri Narasimha Murthy is accepted, many other contentions raised by the Appellants-Petitioners would fall to the ground and, therefore, there is no necessity for us to consider and decide on all those contentions advanced by Sri Radhesh Prabhu.
37. The other contention advanced on behalf of the appellant-petitioners is that by entrusting the work of erecting towers and drawing lines to the contractor, the Board delegated its power of eminent domain and thereby abdicated its statutory power in favour of the company and its contractor. In other words, according to the appellants/petitioners, the Board itself through its Officers ought to have erected the towers and drawn the lines, after collecting the cost of the work from the company. As per Condition No. 4 of the Work Order, the company is required to get the line extension work done through a Class-1 Contractor on its own cost as estimated by the Executive Engineer (Electrical), O & M Division. Further, in terms of Condition No.4, the company has to pay 20% of the cost of the estimate towards supervision charges. Admittedly, the supervisory cost was paid by the company. The Contractor appointed by the Company is a Class-1 Electrical Contractor and his appointment was approved by the Board.
38. Supply of electricity is a monopoly trade of the State. It is well settled that, if a state monopoly is created, the State may carry on the trade directly or the state may carry it on through a corporation owned or controlled by it. The question as to whether State itself should carry on the monopoly trade or whether it could also carry on monopoly trade by appointing agents, fell for consideration in the case of AKADASI PADHAN v. STATE OF ORISSA AND OTHERS, . The Supreme Court while holding that monopoly trade of the State could be carried on either departmentally or through agents held thus-
"If a State monopoly is created ,the State may carry it on by a corporation owned or controlled by it. Thus far, there is no difficulty. Mr.Pathak however, contends that the State cannot appoint any agents in carrying on the State monopoly, whereas the learned Attorney General urges that the State is entitled not only to carry on the trade by itself or by its officers serving in its departments, but also by agents appointed by it in that behalf; and in support of his argument that the agents can be appointed, the learned Attorney- General suggests that persons who can be treated as agents in a commercial sense can be validly appointed by the State in working out its monopoly. We are not inclined to accept either the narrow construction pressed by Mr. Pathak, or the broad construction suggested by the learned Attorney-General. It seems to us that when the state carries on any trade, business or industry, it must inevitably carry it on either departmentally or through its officers appointed in that behalf. In the very nature of things, the State as such, cannot function without the help of its servants or employees and that inevitably introduces the concept of agency in a narrow and limited sense.. If the State cannot act without the aid and assistance of its employees or servants, it would be difficult to exclude the concept of agency altogether. Just as the State can appoint a public officer to carry on the trade on its behalf, so can it appoint an agent to carry on the trade on its behalf. Normally and ordinarily the trade should be carried on departmentally, or with the assistance of public servants appointed in that behalf. But there may be some trades or businesses in which it would be inexpedient to undertake the work of trade or business departmentally or with the assistance of State servants. In such cases, it would be open to the State to employ the services of agents, provided the agents work on behalf of the State and not for themselves",
39. In this case the line extension works are done by the company through its Contractor who is a Class I Electrical Contractor whose appointment was approved by the Board. Even the estimate of the work was approved by the Board. It is a matter of record that the Company got the entire line extension work done through its contractor under the direct supervision and control of the officers of the Board and it has paid 20% of the cost of the estimate to the Board towards supervisory charges.
40. The Courts have made distinction between a delegation of a statutory power by a delegate in favour of a third person without authority granted by the parent Act and taking of assistance from such person in performance of a duty imposed on such delegate. This distinction is pointed out by the Supreme Court in its judgments in PRADYAT KUMAR v. CHIEF JUSTICE OF CALCUTTA HIGH COURT, , ; UNION OF INDIA v. P.K. ROY, ; EDWINGSTON BAREH v. STATE OF ASSAM, . In this case, the work was executed through a Class-1 Electrical Contractor appointed by the Company with the prior approval of the Board and under the direct control and supervision of the Engineers of the Board strictly in accordance with the Scheme and the work order. Therefore, it cannot be said that the Board has abdicated or delegated statutory function entrusted to it to an unauthorised person like the Contractor appointed by the Company. At the most, it can only be said that the Board / the Company in performing the duties entrusted to it took assistance of the Contractor. Taking of assistance of a person in performing a duty, statutory or otherwise, cannot be equated to a delegation of a power. Taking of assistance and delegation of a power are, different and distinct concepts recognized by the Courts. Therefore, we find no merit in the contention of Sri Radhesh Prabhu that the Board has abdicated its statutory power of executing the work in favour of the Contractor.
41. The other contention on behalf of the appellants-petitioners is that as per condition 1(a) of the work order dated 27.05.1994, the service line from Chikkasandra to the Company was specifically directed to be laid by underground cable and in that view of the matter, the decision taken by the Board to lay overhead lines without modifying the work order of the Chief Engineer is illegal. We do not find any merit in this contention. What weighed with the Board to alter the method of laying the lines is stated in paras 23 and 24 of Statement of Objections filed by it in W.P.No.8453-8455 of 1996. They read -
"23. It is submitted that at present the factory is fed by overloaded 11 KV System incurring heavy transmission line losses. Availment of power on 66 KV will reduce the line losses thereby the precious power will be better utilised. M/s WIDIA (India) Ltd., have stated that their products being consumed by the Defence Authorities, the present 11 KV System is having too many interruptions due to over loaded conditions.
24. The Asst. Executive Engineer (Elect.) has conducted a detailed survey. His affidavit is produced and marked as Annexure 'R1' as to the feasibility survey conducted by him the contents of the affidavit Annexure 'R1' may kindly be read as part and parcel of this Statement of Objections."
42. It needs to be noticed that after the Chief Engineer issued the work order dated 27.05.1994, Sri K.S.Ramaswarny who was at the relevant point of time working as Assistant Executive Engineer (Elect.) in the office of the Executive Engineer, Electrical, Major Works division, Bangalore was directed by the office of the Chief Executive Engineer, (General) vide Communication No. CEE (General), T/Com/AEE-4/4612- 18 dated 27.05,1994 to take up the work of survey to lay High Tension Underground Cable to the Factory premises of M/s WIDIA (India), Ltd. Accordingly, Sri K.S.Ramaswamy conducted detailed feasibility study of the Scheme and found that laying High Tension Underground Cable is neither feasible nor expedient nor in the public interest and safety. In his report in the form of Affidavit marked as Annexure R1 with Statement of Objections of the Board filed in W.P.No.8453-8455 of 1996, Sri K.S.Ramaswamy has stated thus:
"I conducted a detailed feasibility study of the scheme. The scheme involves putting up of a tapping structure 'with disconnects' and 'erection' of cable and termination busses right beneath the transmission line and taking out the High Tension Cable to the Road Side. This involves acquisition of private lands. Further it involves taking the cable along the road to the substation premises of the factory along the National High Way No. 4 where coaxial communication lines run as there is no continued road leading to the Sub-station premises along the Sidadahally Road-MEl Layout. An account of lack of facility we have to overcome the induced voltage in Tele-communication cable running along National High Way No. 4 or alternatively run a portion of Cable in the agricultural land. The existing induced voltage on the Coaxial Cable being on the higher side, the Power and Telecommunication Co-ordination Committee Authorities refuses to clear energisation approval of the lines which is a statutory requirement. I submit that the laying of the transmission line underground in agricultural land belonging to citizens involves the right of way problems and maintenance thereafter. The entire strip of agricultural land has to be acquired."
43. On receipt of the above report, the Superintending Engineer (Elect.), Major Work Circle, Bangalore after spot inspection thought it necessary to consider the feasibility of drawing or extending overhead lines. That is how the Board has ultimately decided to lay overhead lines instead of underground cable. What is stated by the Board in paras-23 and 24 of Statement of Objections extracted above and the sworn affidavit of K.S. Ramaswamy clearly shows that in taking the decision to change the method of laying lines, the Board was guided by feasibility, expediency, interest of the owners of the agricultural lands, public safety, and safety of the consumers. Such a decision taken by the Board in the interest of all concerned cannot be condemned as arbitrary or capricious.
44. Work order is not a statutory instrument. It was issued by the Chief Engineer in exercise of the executive power entrusted to him on behalf of the Board. Therefore, there was no difficulty either for the Board or for its Chief Engineer to revise or alter the method of laying lines to supply electricity to the consumer. Further, it needs to be noticed that the framing of a Scheme and execution of the same for supplying electricity to consumers, is undoubtedly a technical subject and execution of such Scheme has to be done through Engineers who are supposed to be experts in the field, The Courts have always shown deference to the administrative decisions taken by experts and unless they are demonstrably shown to be tainted by malafide, the Courts will not interfere with such decisions, Although Sri Radhesh Prabhu would meekly contend that the action of Widia in appointing the Contractor, who is alleged to have close nexus and access with the Officers of the Board, is malafide, that plea remains to be a vague plea only without any proof. It is trite, in order to bring home the charge of malafide, the person who attributes malafide to a person occupying the public office should lay concrete factual matrix and produce acceptable legal evidence in proof of the same. In the instant case, insofar as the attack of the impugned action on the ground of malafide is concerned, both pleading and proof are utterly lacking and scanty.
45. In a matter like this, the scope of review under Article 226 cannot be too broad and the Court should exercise restraint and limit the scope of review while reviewing a Scheme undertaken by experts of a statutory authority like the Electricity Board. Otherwise, as pointed out in the Report of the Attorney General's Committee on Administrative Procedure 91 (1941) , the public authorities/ agencies/ Boards will be turned into little more than media for a transmission of cases to the Courts. That would destroy the values of agencies / authorities / Boards created under various statutes to secure the benefit of special knowledge acquired through continuous administration in complicated fields. It is not to say that the scope of judicial review must be so restricted that it prevents full enquiry into the question of legality. If that question cannot be property explored by the Court, the right to review of administrative or statutory action under Article 226 would become meaningless and it will lead to a situation where the judicial review of administrative action would be a hopeless formality for the litigant.
46. Two overriding considerations should weigh with and guide the reviewing Court to narrow the scope of review. The first is that of deference to the administrative expert. CHIEF JUSTICE NEELY IN MONONGAHELA POWER CO. v. PSC, 276 S.E. 2D, 179, 189 (W. Va 1981) observed thus:
"I have very few illusions about my own limitations as a judge and from those limitations I generalize to the inherent limitations of all appellate Courts reviewing rate cases. It must be remembered that this Court sees approximately 1262 cases a year with five judges. I am not an accountant, electrical engineer, financier, banker, stock broker, or Systems management analyst. It is the height of folly to expect judges intelligently to review a 5,000 page record addressing the intricacies of public utility operation."
47. In BARNES COUNTY v. GARRISON DIVERSION, 312 n.w. 2d 20, 25 (N.D. 1981) it was held that it is not the function of the judge to act as a super board. Further, in WESTERN COAL LEAGUE v. UNITED STATES, 694 F. 2d 378, 383 (5th Cir. 1982) it was hold that the reviewing judge cannot act with the zeal of a pedantic schoolmaster. In GRANVILLE v. GREGORY, 83 Mo. 123, 137 (1884) it has opined that if a Court were to review fully the decision of a body such as a State board of medical examiners - "it would find itself wandering amid the mazes of therapeutics or boggling at the mysteries of the pharmacopoeia." In STEENERSON v. GREAT NORTH R.R., 72 N.W. 713, 716 (Minn. 1897) it was opined that the situation pointed out in GRANVILLE v. GREGORY(Supra 312 n.w. 2d 20, 25 (N.D. 1981), is not a case of the blind leading the blind, but of one who has always been deaf and blind insisting that he can see and hear better than one who has always had his eyesight and hearing and has always used them to the utmost advantage in ascertaining the truth in regard to the matter in question.
48. Thus it is not within the legitimate power of the Court within the domain of judicial review power to lightly interfere with an adminiotrative or executive action, particularly when the baoo of which is the technical know-how and expertise in the specialised field. We do not find any flaw, legal or factual, on the part of the Board in altering the method of laying lines and by that action none of the legal rights of the appellants-petitioners are impaired or violated. On the other hand the discussion supra clearly shows that the alteration of the method is in the interest of the appellants-petitioners and the similarly circumstanced others.
49. The other contention that in drawing of the service line after erecting towers tantamounts to a 'development' within the meaning of Section 2(1-c) of the Planning Act, read with Sections 14 and 76M thereof and, therefore, the Company ought to have secured prior permission from the Planning Authority created under the Planning Act before erecting high tension towers and since the Board did not do so, the entire work done by the Board and the company is rendered illegal, is not well founded and totally a misconceived contention. Section 2(1-c) of the Planning Act defines the term 'development' thus:
(1-c) "Development" with its grammatical variations, means the carrying out of building, engineering, mining, or other operations in, on, over or under land or the making of any material change in any building or land, or in the use of any building or land and includes sub-division of any land;
50. Having due regard to the definition of the term 'development' as defined in Clause (1-c) of Section 2 of the Planning Act, the erection of high tension towers perhaps may be regarded as 'development' within the meaning of that term. Simply because the erection of high tension towers is a 'development' within the meaning of that term, it cannot be said that the Board being a statutory authority created under the Electricity Supply Act is required to obtain prior permission from the planning authority. The relevant portion of the Explanation to proviso to Sub-section (2) of Section 14 of the Planning Act reads as follows:
"Explanation - For the purpose of this section,-
(a) the expression "development" means the carrying out of building or other operation in or over or under any land or the making of any material change in the use of any building or other land;
(b) the following operations or uses of land shall not be deemed to involve a development of any building or land, namely-
(i) *******
(ii) the carrying out of works in compliance with any order, or direction made by any authority under any law for the time being in force;
(iii) the carrying out of works by any authority in exercise of its powers under any law for the time being in force;"
51. Sub-clauses (ii) & (iii) of the Explanation make it very clear that the Board need not secure prior permission from the planning authority under the Planning Act before erecting high tension towers and laying wires, because, the above work is required to be carried out by it in terms of a grant made and direction issued by the authorities created under the Electricity Act and Supply Act. In other words, the work is required to be carried out by the Board in exercise of its power conferred by the statute. Therefore sub-clauses (i) and (ii) of the Explanation to the proviso to Sub-section (2) of Section 14 are attracted and the Board is exempted from seeking prior permission from the planning authority. Although by virtue of Section 76M of the Planning Act, the provisions of the Planning Act, the rules, regulations and bye-iaws made thereunder shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law, since taking of prior permission from the planning authority is exempted as regards carrying out works in compliance with any order or direction made by any authority under any law or carrying out of works by an authority in exercise of its power under any law by virtue of sub-clauses (ii) and (iii) of Clause (b) of Explanation to proviso of Sub-section (2) of the Section 14 of the Planning Act, there was no need for the Board to obtain prior permission under Sub-section (2) of Section 14 of the Act. This position is made abundantly clear by the words "save as provided in this Act" occurring in Section 76M of the Planning Act. That means since under Explanation to sub-section (2) of Section 14 taking of prior permission from the planning authority is dispensed with, the provisions Section 76M of the Karnataka Town and Country Planning Act, 1961 have no application to the present case.
52. Although the arguments were advanced by the learned counsel for the parties with regard to the lines to be drawn in pursuance of the impugned scheme are 'service lines' or 'transmission lines', there is no need for us to dwell into that contention in view of the preparation of the revised comprehensive scheme published under Section 28(3) of the Supply Act. Suffice it to state that service line commences only after stepping down from 66 KV to 11 KV. Therefore, the line carrying on the electricity before stepping down cannot be regarded as service line. It is the specific case of the Board that after stepping down from 66 KV to 11 KV, the lines did not pass through the lands of any of the Appellants-petitioners. Looking from that angle also, the appellants-petitioners cannot have any legitimate grievance.
53. Before parting with this case we may place on record the very tenacious and painstaking advocacy presented before us by Sri Radhesh Prabhu, learned counsel for the Appellants petitioners. If we may say so, Sri Radhesh Prabhu, presented the arguments as if this Court in exercising judicial review power under Article 226 functions as an appellate Court. As pointed out supra, the subject matter of the judicial review brought before this Court in the writ proceedings is essentially a technical subject, if we may say so, highly technical subject. The decision to be taken by the Engineers who are supposed to be experts in the field to execute additional power granted to Widia should be based on their expertise as well as their experience in executing similar works in the past and the decision taken by such experts cannot lightly be interfered with by the Court. The writ Court is not an appellate Court where the correctness of the order of an administrative agency or statutory authority under review is to be canvassed. The reviewing Court has no jurisdiction to substitute its own opinion for the opinion of the administrative or statutory agency, even if it is satisfied that the decision taken by such agency is wrong. The only thing to be seen by the reviewing Court is whether the agency or authority concerned has acted in good faith, whether it has taken all relevant considerations into account and eschewed all irrelevant consideration from the decision-making, whether it has exercised the power granted by the law to promote purposes alien to statutory objectives or purposes and whether it has acted arbitrarily or capriciously. Even assuming that the decision taken by the Board in implementing the project to supply additional power to Widia is wrong in the perception of the Court, that decision cannot be corrected using the writ jurisdiction as a clock of appeal in disguise. The High Court under Article 226 is not an appellate Forum, where the correctness of the order of the Government or statutory authority could be canvassed and indeed it has no jurisdiction to substitute its own views for entirety of the power, jurisdiction and discretion is vested by law in such authority. So long as the action of the executive or statutory authority under review is not tainted by mala fides and the authority has not overstepped the constitutional and legal limits, the Court should show deference to the decision taken by the agency created by law or officers authorised by such agency. Having heard the learned Counsel for the parties quite extensively and having taken into consideration all relevant facts and circumstances of the case, we are fully satisfied that the writ proceedings instituted by the Appellants-petitioners in this Court under Article 226 are without any justification and devoid of merit.
In the result and for the foregoing reasons, we dismiss the writ appeals and Writ Petitions with no order as to costs.
W.A. No. 2669/1999After the pronouncement of the Judgment, Sri K. Radhesh Prabhu, learned Counsel for the Appellants- Petitioners made an oral application under Article 134-A of the constitution to grant a 'Certificate' contemplated under the said Article and also made another oral application to stay our judgment for a reasonable period in order to facilitate the appellants-petitioners to move the Apex Court. Since in the decision-making, we were guided by the binding judgments of the Apex Court itself and keeping in mind the legislative intendment under Section 18 of the Electricity Supply Act to supply power as soon as possible, we do not find any justitication to order the two oral applications made by Sri K. Radhesh Prabhu. Accordingly, we dismiss both the oral applications.