Kerala High Court
Bharat Plywood And Timber Products ... vs Kerala State Electricity Board ... on 3 December, 1969
Equivalent citations: AIR1972KER47, AIR 1972 KERALA 47, ILR (1971) 1 KER 1, 1970 KER LJ 941, 1970 KER LT 872
Author: K.K. Mathew
Bench: K.K. Mathew
JUDGMENT
1. The prayers in this petition are:
(1) "to quash Ext. P1 Notice", (2) "to declare the provisions contained in Section 51 of the Indian Electricity Act, 1910, and the corresponding provisions contained in the Indian Telegraphic (Sic) Act, 1885, as ultra vires and unconstitutional;"
(3) "to stay all further proceedings In pursuance of Ext. P1" and (4) "to issue a writ of mandamus or other appropriate writ, direction or order not to enter the premises of the petitioner's company-factory or to cut and remove the improvements standing on the property or drawing the high-tension power lines across the petitioner's property;"
2. The Petitioner is a private limited company which owns about four acres of land, most of which is occupied by buildings, yards, etc. of the factory of the petitioner. It manufactures plywood and other allied products. The property is bounded on the north by the Baliapatam river and on the south by a public road. In the south of the property owned by the petitioner, adjacent to the public road, there is one acre of vacant land, the proposal in Ext. P1 is to draw a 11 KV line across this one acre of land for the purpose of supplying electrical energy to the fishing harbour, Baliapatam.
3. The respondents are the Kerala State Electricity Board, its Assistant Engineer at Cannanore and its Junior Engineer at Baliapatam.
4. The notice, Ext. P1 was issued by the 2nd respondent Assistant Engineer. It is claimed by the respondents that by the notification Ext. P5 dated 6-1-1960 issued under Section 51 of the Indian Electricity Act, 1910, the 2nd respondent has the same powers for the placing of electric supply lines, appliances and apparatus on the property of others for the transmission of energy as that possessed by the telegraph authority under the Telegraph Act, 1885, for the purpose of placing telegraph lines.
5. We shall hereafter refer to the Indian Electricity Act, 1910, as the Electricity Act and the Indian Telegraph Act, 1885, as the Telegraph Act.
6. The main contentions raised by counsel on behalf of the petitioner are that the provisions in the Electricity Act and the Telegraph Act providing for the placing of electric supply lines, appliances and apparatus for the transmission of energy are unconstitutional because they are discriminatory and arbitrary, and Section 51 of the Electricity Act and Section 10 of the Telegraph Act have been singled out for particular attack. It is urged that the authority empowered to act under Section 51 can, with unfettered discretion, choose between the powers under Section 51 of the Electricity Act read with Section 10 of the Telegraph Act or seek acquisition under the relevant provisions of the Land Acquisition Act of the immovable property, under, over, along or across which electric supply lines, etc. are to be placed. It is further urged that a licensee authorised under Section 51 of the Electricity Act may either exercise the powers under the section or choose to exercise the powers granted to a licensee under Sections 12 to 16, 18 and 19 of the Electricity Act.
This liberty to choose between two different procedures, one more advantageous to the owner or occupier, viz., that under the Land Acquisition Act or the one less advantageous viz., that under Sections 10 and 16 of the Telegraph Act is, it is contended, discriminatory.
7. Section 51 of the Electricity Act has also been challenged as granting arbitrary power or enabling the grant of arbitrary power, the exercise of which can interfere with the right to property guaranteed by Article 19 (1) (f) of the Constitution. This interference, it is said, is unreasonable and not in the interests of the general public.
8. It is further said that Section 51 of the Electricity Act itself gives no guide-lines as to who should be authorised and in what circumstances he should be so authorised and has thus conferred on the State Government arbitrary power without any legislative guidance and therefore, the section is bad for excessive delegation.
9. To deal with these contentions, K is necessary to refer to the relevant provisions of the Telegraph Act, and the Electricity Act The Telegraph Act as such does not concern itself with the placing of electric supply-lines, etc. This Act, which came into force as early as the 1st of October. 1885, only deals with the power to place and maintain telegraph lines under, over, along or across any immovable property. But in respect of the placing of electric supply-lines Section 51 of the Electricity Act enables Government to confer upon a public officer or any other person mentioned in the section, any of the powers which the telegraph authority possesses under the Telegraph Act with respect to the placing of telegraph lines. "Electric supply line" as defined in Section 2 (f) of the Electricity Act means a wire, conductor or other means used for conveying, transmitting or distributing energy whether by overhead line or underground cable. "Appliances" and "apparatus" have not been defined in the Electricity Act, and they have, therefore, to be given their normal literal grammatical meaning. Section 10 of the Telegraph Act in terms empowers the telegraph authority to place and maintain telegraph lines under, over, along, across, and posts in or upon, any immoveable property. This power under the Telegraph Act shall not be exercised in respect of any property vested in or under the control or management of any local authority without the permission of that authority (proviso (c) to Section 10 of the Telegraph Act). In the exercise of powers conferred by this section, the telegraph authority shall do as little damage as possible, and when it has exercised those powers, shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers (Proviso (d) to Section 10 of the Telegraph Act). Sections 12 to 15 of the Telegraph Act, both inclusive, occur under the heading "Provisions applicable to property vested in or under the control or management of local authorities."
These provisions are not material for the purpose of this case.
Section 16 of the Telegraph Act is important and that section comes under the heading "Provisions applicable to other property." We shall read the section.
"16. (1) If the exercise of the powers mentioned in Section 10 in respect of property referred to in Clause (d) of that section is resisted or obstructed, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them.
(2) If after the making of an order under Sub-section (1), any person resists the exercise of those powers, or having control over the property, does not give all facilities for their being exercised, he shall be deemed to have committed an offence under Section 188 of the Indian Penal Code.
(3) If any dispute arises concerning the sufficiency of the compensation to be paid under Section 10. Clause (4), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him.
(4) If any dispute arises as to the persons entitled to receive compensation, or as to the proportions in which the persons interested are entitled to share in it the telegraph authority may pay into the Court of the District Judge such amount as he deems sufficient or where all the disputing parties have in writing admitted the amount tendered to be sufficient or the amount has been determined under Sub-section (3), that amount; and the District Judge, after giving notice to the parties and hearing such of them as desire to be heard, shall determine the persons entitled to receive the compensation or as the case may be the proportions in which the persons interested are entitled to share in it.
(5) Every determination of a dispute by a District Judge under Sub-section (3), or Sub-section (4) shall be final:
Provided that nothing in this sub-section shall affect the right of any person to recover by suit the whole or any part of any compensation paid by the telegraph authority, from the person who has received the same."
10. The effect of this section on the power conferred on the telegraph authority by Section 10 of the Telegraph Act has to be considered, and this will be dealt with at a later stage. The remaining sections in Part III of the Telegraph Act need not be referred to for this case. But we must emphasise proviso (b) to Section 10 of the Telegraph Act which we shall read:
"10. 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) .....
(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) ....."
11. There is provision made in the Electricity Act in Section 12 (1) inter alia for enabling a 'licensee' under that Act to lay down or place electric supply-lines and other works. This has however been made subject to the provision in Subsection (2) of that section which says that Sub-section (1) of Section 12 shall not be deemed to authorise or empower a licensee, to place any supply-lines without the consent of the owner or occupier of the property concerned.
12. The State Electricity Boards constituted under the Electricity Supply Act. 1948, have the power to draw up and sanction a scheme with a view to rationalising the production and supply of electricity in any area. When such a scheme makes provision for the placing of supply-lines, the Boards shall have for that purpose the same power that a telegraph authority has under the Telegraph Act to place telegraph lines.
13. From an analysis of the above provisions, it is clear that a licensee who has not been empowered by the State Government under Section 51 of the Electricity Act cannot place any electric supply-lines in or over any property without the consent of the owner or occupier thereof. We are leaving out of account property vested in or under the control or management of any local authority, since with that we are not concerned. A person authorised under Section 51 can however, do so without the consent of the owner or occupier. Whether the owner or occupier has the right to resist or obstruct the placing of electric supply-lines and what should be done when there is such resistance or obstruction is a matter to which we shall presently advert.
On the basis of the above provisions, counsel has contended that Section 51 of the Electricity Act read with Section 10 of the Telegraph Act is discriminatory. It is said that a public officer or other person authorised under Section 51 may exercise either the power under Section 10 of the Telegraph Act or the power under the relevant Land Acquisition Act at his will and pleasure.
14. At the outset it has to be mentioned that any public officer, licensee or any other person on whom the powers of a telegraph authority under Part III of the Telegraph Act have been conferred by the State Government acting under Section 51 of the Electricity Act has no power to take initiative for the acquisition of land under the Land Acquisition Act by virtue of the conferment of such power. We must also point out that there is no acquisition or requisition of land involved when the powers under Section 10 of the Telegraph Act are exercised. This is clear from proviso (b) to Section 10, which we have already read. The only right involved is a right of user of the property for the purposes mentioned in the section. The fact that an authority on whom powers under Section 10 of the Telegraph Act have been conferred may have certain rights and that certain other authorities may take steps for acquisition of land for public purposes under the Land Acquisition Act cannot be the criterion for deciding whether the statutory provision in Section 51 of the Electricity Act. or that in Section 10 of the Telegraph Act is discriminatory, (See State of Gujarat v. Shantilal Mangaldas. AIR 1969 SC 634, para. 34).
15. The public officer on whom powers of a telegraph authority under Section 10 of the Telegraph Act have been conferred under Section 51 of the Electricity Act can only exercise the powers under the Telegraph Act and has no power to acquire land under the Land Acquisition Act. The power to acquire under the Land Acquisition Act can only be exercised by the State Government or the Collector as the case may be. There can, therefore, be no question of discrimination as contended by counsel for the petitioner.
16. Coming now to the case of licensees authorised under Section 51 of the Electricity Act it is urged that they may either exercise the powers under Section 12 of the Electricity Act or resort to the provisions of the Telegraph Act. Though Section 12 enumerates various acts that can be done by a licensee for the purpose of laying down or placing electric supply-lines, such acts can be done only with the consent of the local authority or of the owner or occupier concerned (Section 12 (2)). This is no power at all for without the consent nothing can be done. What can be done, therefore, under Section 12 cannot be compared with the exercise of powers under Section 10 of the Telegraph Act by a person empowered to do so under Section 51 of the Electricity Act The principle has been stated by the Supreme Court in the decision in Banarsi Das v. Cane Commr. Uttar Pradesh. AIR 1963 SC 1417 "Where there are two procedures one for every one and the other if the disputants voluntarily agree to follow it, there can be no discrimination because discrimination can only be found to exist if the election is with someone else who can exercise his will arbitrarily."
Section 12 covers only the case of licensees while Section 51 under which power can be conferred on a public officer as in this case and what he can do because of that power cannot be made the subject-matter of comparison with what a licensee can do.
We therefore, negative the contention raised by counsel on the basis of discrimination.
17. The next contention is that the conferment of the right to the user of the land is an unreasonable restriction on the right to hold property guaranteed by Article 19 (1) (f) of the Constitution. Though it was further suggested that this restriction is not in the interests of the general public, this was not pressed, as obviously laying an electric supply-line and the distribution of electricity cannot be said to be otherwise than in the interests of the general public The only question, therefore, is whether the restrictions imposed are unreason-able. Proviso (b) to Section 10 of the Telegraph Act clarifies that the only right conferred is a right of user. Even in regard to this, full compensation to all persons interested will have to be paid as is clear from Proviso (d) to the section which states, "shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of these powers." That full compensation for the loss of bearing trees will have to be paid has been laid down in Kerala State Electricity Board v. Varghese Thomas. 1961 Ker LT 238 = (AIR 1961 Ker 237) and this decision has been followed in Kerala State Electricity Board v. P. H. Hormese Tharakan. 1968 Ker LT 493. In addition any loss sustained to the value of the land will also have to be compensated is indicated in 1961 Ker LT 238 = (AIR 1961 Ker 237) and in Malankara Rubber and Produce Co. Ltd. v. State of Kerala. 1967 Ker LT 938, an enquiry into the question whether there has been a diminution in the market value of the lands and if so its quantum and the fixation of compensation, was directed. If any dispute arises concerning the sufficiency of the compensation, either of the disputants can apply to the District Judge concerned for a determination of the true amount. Rules 79 and 80 of the Indian Electricity Rules, 1956. impose restrictions by providing clearances from buildings in the matter of laying low and medium voltage lines, and high and extra-high voltage lines. Proviso (d) to Section 10 of the Telegraph Act enjoins that the authority shall do as little damage as possible, and, for the reasons we have stated in paragraphs 22 to 26 below, the owner or occupier has the right to resist or obstruct the laying or placing of electric supply-lines in or over his property, and the District Magistrate then has the discretion to order whether the authority should be permitted to place the line or not Whether the restrictions imposed in the use of property are reasonable or not will have to be determined with reference to these safeguards that have been provided and the purpose sought to be achieved. The Electricity Act is a law to provide for the supply and use of electrical energy. Such supply and use of electrical energy has become a necessity. Electrical energy has become a commodity of ordinary and daily use in homes, factories and offices, in fact everywhere. The demand for this is growing day by day. The need for generating more and more electricity and a system to provide for its easy, quick and economic supply to every person requiring it has become indispensable for the needs of the community. Power has therefore, to be taken for the purpose of facilitating generation and quick distribution and supply of electrical energy. And this is provided by the Electricity (Supply) Act, 1948. Electricity Act and also particularly by Section 51 of the Electricity Act read with Section 10 of the Telegraph Act.
18. The power that can be conferred under Section 51 of the Electricity Act upon a public officer, licensee or any other person is only for the purpose of placing electric supply-lines. It can hardly be expected that this power will be utilised arbitrarily for causing loss or damage to owners or occupiers of property. There can of course, be difference of opinion as to whether a line should be placed over a particular property or not. This must, in the nature of things, be a matter for the statutory authorities created under the Electricity Act to decide. It is too much to suppose that the officers, licensees and other persons empowered under Section 51 will act without any guidance or control from the statutory authorities such as the State Electricity Boards created under the Supply Act and without sanction or approval from the senior officers of the Board who have to decide on the policies regarding distribution and supply and the alignment of the lines to be drawn and such allied matters. The purposes for which the electric supply lines may be placed are clear from the section itself. In the case of licensees, normally, the licenses issued would indicate in what area and in what manner electricity should be distributed and supplied. These will afford sufficient guide-lines for the exercise of the powers. One cannot expect the State Government to empower any public officer or any person who may have no idea how electric supply lines should be placed. And, though it is suggested that an Assistant Engineer is not a proper authority on whom the powers under the Telegraph Act may be conferred under Section 51 of the Electricity Act, we are not satisfied that this contention is sound. In the circumstances, the restrictions such as those that have been imposed can only be considered to be reasonable in the interests of the general public. One may have to suffer some detriment in the user of property to serve the common good, and he cannot complain when full compensation is paid for the detriment. We are unable to accept the contention that the restrictions imposed on the user of the property are unreasonable. We negative this contention as well.
19. What we said above also answers the contention that Section 51 of the Electricity Act enables the authorities on whom powers under the Tele-graph Act have been conferred to act as they like and that the section is bad as containing excessive delegation of legislative power. The mere fact that the legislation is skeletal or the fact that a discretion is left to those entrusted with administering the law affords no basis for the contention that there has been excessive delegation of legislative power (AIR 1961 SC 1602, para 17). In deciding the nature and extent of the guidance which should be given to the delegate legislature must inevitably take into account special features of the object which it intends to achieve by a particular statute (AIR 1960 SC 475, para. 8):
"When 'a statute is challenged on the ground of excessive delegation it has to be established that the legislature has delegated its essential legislative power or function and that it has not laid down its policy or principle for the guidance of its delegate. Even if a policy is declared it may, however, be couched in such vague terms that it may not set down a definite standard or criterion for the guidance of the delegate. The consequence would be to confer an arbitrary or uncanalised power to change or modify the declared policy without reserving to itself any control over the subordinate legislation. Such an effacement or abdication of power in favour of another agency, either in whole or in part, is beyond the permissible limits of delegation' (AIR 1967 SC 1048, para. 20)."
Applying these principles we hold that there is no excessive delegation in enacting Section 51 of the Electricity Act.
20. The contentions based on mala fides too are without any substance. What is urged in the petition is that the notice Ext. P1 was addressed to Sri Haridas Govardhandas Sait, Bharat Plywoods, Baliapatam, it is said, in his personal capacity, on the assumption that the property over which the line is to be placed belonged to him; that the property really belonged to the petitioner-company; and that this disregard to facts indicates that the notice issued is an empty formality and it is urged that this shows mala fides. Haridas Govardhandas Sait is admittedly the Managing Director of the petitioner-company. In the counter-affidavit it is stated that the notice was issued to him because he is the Managing Director of the company. From the mere fact that Govardhandas Sait has not been described as the Managing Director we are not able to spell out mala fides.
21. One other contention in support of the case of mala fides is that the line could be taken along the nearby road instead of over the property of the petitioner-company, and the decision to take it over the property of the petitioner-company is mala fide. In the counter-affidavit it is asserted that it is not possible to take the line along the road mentioned and the line had to be taken over the property of the petitioner Company, The petitioner has not been able to make out any mala fides.
22. During the course of the arguments the ambit of the power of the telegraph authority under Section 10 of the Telegraph Act. when that section is read with Section 16 thereof, came up for considerable amount of discussion. On behalf of the respondents, it was urged that, notwithstanding the resistance or obstruction by the owner or occupier of the land, over which a line was sought to be placed, the authority may proceed to lay the line disregarding such resistance or obstruction or, if necessary, after removing the same. On the other hand, on behalf of the petitioner, counsel urged that it is clear from the provisions in Sub-sections (1) and (2) of Section 16 of the Telegraph Act that the telegraph authority has no such power and that in cases of resistance or obstruction by the owner or occupier the authority must resort to the procedure indicated in Sub-section (1) of Section 10, that is, he should approach the District Magistrate and get an order from the District Magistrate that the authority shall be permitted to exercise the powers. We shall read once again Sub-sections (1) and (2) of Section 16.
"16. (1) If the exercise of the powers mentioned in Section 10 in respect of property referred to in Clause (d) of that section is resisted or obstructed, the District Magistrate may in his discretion, order that the telegraph authority shall be permitted to exercise them.
(2) If, after the making of an order under Sub-section (1), any person resists the exercise of those powers, or having control over the property, does not give all facilities for their being exercised, he shall be deemed to have committed an offence under Section 138 of the Indian Penal Code."
23. It is clear from the wording of Section 16 and particularly from the expression "the District Magistrate may, in his discretion", that an order will not be forthcoming automatically. A District Magistrate may in this discretion in a given case refuse or decline to pass an order that the telegraph authority shall be permitted to exercise the powers. The wording is significant. The District Magistrate does not grant permission to the authority. But he orders that the authority "shall be permitted." The discretion conferred by the section on the District Magistrate is certainly a judicial discretion, and, in cases where the District Magistrate refuses to pass an order that the telegraph authority shall be permitted to exercise the powers mentioned in Section 10 it is inconceivable that the telegraph authority may notwithstanding such refusal, continue to exercise such powers. The wording of the section is thus itself indicative of the fact that in cases of resistance or obstruction the District Magistrate will have to decide whether the authority should be permitted or not to exercise the powers under Section 16 of the Telegraph Act. This necessarily means that the telegraph authority cannot override or ignore the resistance or obstruction and continue to exercise the powers under Section 10 notwithstanding such resistance or obstruction. It follows that, when an owner or occupier resists or obstructs the exercise of the power under Section 10, the telegraph authority will have to approach the District Magistrate for an order under Sub-section (1) of Section 16 and can exercise the power under Section 10 only in cases where the District Magistrate deems it fit to pass an order that he shall be permitted to do so. The power conferred by Section 10 is thus a conditional power; conditional on an order being passed under Section 16 (1) by the District Magistrate that the authority may be permitted, in case of resistance or obstruction, to exercise the power. This is so not only in regard to a telegraph authority but to the public officer or any other person authorised under the Electricity Act.
We are fortified in this view by what is provided by Sub-section (2) of Section 16. If the telegraph authority has the power, notwithstanding the resistance or obstruction, to exercise the powers under Section 10 the resistance or obstruction by the owner or occupier, we conceive, would be an offence under Section 186 of the Indian Penal Code. That section makes voluntary obstruction to any public servant in the discharge of his public functions an offence, and such an offence is punishable with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with, both.
Sub-section (2) of Section 16 provides that if after the making of an order under Sub-section (1), any person resists the exercise of the powers under Section 10 or does not give all facilities for their being exercised, he shall be deemed to have committed an offence under Section 188 of the Indian Penal Code. Section 188 of the Indian Penal Code makes disobedience to an order duly promulgated by a public servant an offence. This offence, as long as it does not cause or tend to cause danger to human life, health or safety, or cause or tend to cause a riot or affray, is punishable with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both. We notice that Sub-section (2) of Section 16 has a positive as well as a negative aspect; the former being the duty on the part of the person having control over the property to give all facilities for the exercise of the power under Section 10 and the latter not to resist the exercise of such power. Nevertheless, it is clear that only resistance after an order has been passed under Sub-section (1) of Section 16 that is deemed to be an offence under Section 188 of the Indian Penal Code. This necessarily implies that any resistance to the telegraph authority in the exercise of powers under Section 10 before an order under Section 16 (1) has been passed by the District Magistrate, is not an offence. The provision in Sub-section (2) of Section 16 would become meaningless and absurd if even the initial resistance or obstruction is already an offence under Section 186 of the Indian Penal Code and punishable with a sentence more stringent than that which can be imposed under Section 188. We have, therefore, necessarily to understand the statute as enabling an owner or occupier or a person having control over the property over which a line is sought to be placed as having the right to resist or obstruct. When the telegraph authority is so resisted or obstructed, the District Magistrate can be approached. If he is approached, the District Magistrate would decide whether the authority should be permitted to exercise the powers. When the District Magistrate decides that he should be so permitted resistance thereafter is made an offence. And there is an obligation cast upon the owner or occupier to render all facilities for the exercise of that power. The sections (Sub-sections (1) and (2) of Section 16) can only be understood in this manner. In short Sections 10 and 16 have to be read together, and when there is resistance or obstruction, the power under Section 10 can be exercised only when the District Magistrate passes an order under Section 16(1) that he shall be permitted to exercise them.
24. We must now refer to the argument advanced by counsel on behalf of the respondents based on the decision of the Supreme Court in Civil Appeal No. 418 of 1969 = (reported in AIR 1970 SC 491). The contention is that just as Section 15 is not applicable in regard to the determination of the reasonableness of the conditions, that a local authority may impose subject to which permission is given to a licensee empowered under Section 51 of the Electricity Act to lay electric supply lines, at the instance of the licensee. Section 16 (1) is not available to a public officer or other authority or person authorised under Section 51 of the Electricity Act. It is said that the public officer or other person is not a telegraph authority and only a telegraph authority will be governed by Section 15 of the Telegraph Act. The wording of Section 16 was relied on to point out that what the section says is "that the telegraph authority shall be permitted to exercise them." This, it is said, will not apply to the case of a public officer authorised under Section 51 of the Electricity Act. We are unable to accept this contention. We do not think that the decision of the Supreme Court referred to touches on this aspect.
The power that can be exercised by a person empowered under Section 51 is the identical power which the telegraph authority possesses under the Telegraph Act. That power, we have already seen, is a conditional power. That is if the telegraph authority is resisted or obstructed, he can continue to exercise the power only if an order is passed by the District Magistrate under Section 16 (1) of the Telegraph Act "that he shall be permitted to exercise them." Any public officer or other person authorised under Section 51 of the Electricity Act must stand in the identical position. He cannot possibly have greater powers than the telegraph authority. If Section 16 (1) is not applicable to a public officer authorised under Section 51 of the Electricity Act, one or two results must follow. The Public Officer in cases of resistance or obstruction may not be able to lay the lines; or notwithstanding the resistance or obstruction he may be taken as empowered to lay the lines. We do not think that either of these should be the position, and the interpretation that we should place on the effect of an authorisation under Section 51 of the Electricity Act and the provisions in Sections 10 and 16 of the Telegraph Act must serve the object and purpose which they are intended to serve. The public officer on whom powers have been conferred pursuant to Section 51 of the Electricity Act must stand in the same position as regards the exercise of power as the telegraph authority. His power should not be abridged, nor should it be enlarged. We therefore, think that Section 16 of the Telegraph Act is as much applicable to a public officer on whom powers have been conferred pursuant to Section 51 of the Electricity Act as to a telegraph authority.
25. We quite realise that Section 10 is contained in an enactment which came into force on the 1st October, 1885, at a time when even the placing of telegraph lines was a phenomenon and that the act concerned itself only with the placing of telegraph lines which in scope and extent and in dimensions are entirely different from the laying of electric supply lines in a modern city or a state where one can expect, and one can see, a net work of lines being drawn across country, over the properties, and near buildings and other structures. The exercise of the powers under Section 10 of the Telegraph Act controlled by Section 16 thereof, may be quite inadequate for the supply and distribution of electricity in modern times. In fact we feel that entirely different provisions which will expedite the laying of lines and which will provide a more flexible and speedy procedure have become indispensable. But the legislature in enacting Section 51 of the Electricity Act has chosen to confer on the public officer, the licensee or other person chosen by the State Government only the powers of a telegraph authority under the Telegraph Act.
As matters stand, we have to come to the conclusion that when a public officer, licensee or other person on whom the powers under the Telegraph Act have been conferred by the State Government acting under Section 51 of the Electricity Act is resisted or obstructed, that authority has no alternative but to approach the District Magistrate under Section 16 (1) of the Telegraph Act for an order enabling him to exercise those powers. We come to this conclusion, reluctantly no doubt, because we can see how inconvenient and inexpedient it may be that every time an authority is resisted or obstructed there should be an approach to the District Magistrate for an order. It is easily imaginable that in almost all cases there will be resistance or obstruction as the desire of every owner and occupier would be to avoid lines being drawn over the property in which he is interested. We are fully aware of the delay that will ensue and the labour that will be involved in having the matter placed before the District Magistrate on a number of adjourned hearings in order to satisfy the Magistrate that the exercise of the power is desirable, nay necessary. The volume of work that will result by petitions by the persons on whom powers under the Telegraph Act have been conferred can be very considerable. Whether a District Magistrate, burdened with other responsibilities, will be able to deal with this question as expeditiously as they should, is a matter of grave doubt. These are all matters which we feel ought to be taken note of by the legislature, and it is for the legislature to modify the law or to substitute other machinery for the purpose of enabling the authorities who are burdened with the task of doing very essential service in the interests of the general public of distributing and supplying electrical energy, to act with the expedition required. It may as well be that the freedoms guaranteed by the Constitution can be safeguarded if some officer, responsible enough and adequate in stature, is entrusted with the task of deciding in given cases whether lines should be placed or not. There is no reason why such an officer should not be a Government servant or any other authority under the Electricity Board. These again are all matters that have to be considered, and considered seriously, in the interests of the Electricity Boards and what is far more paramount, in the interests of the general public, by the authorities concerned.
26. As things stand we have to hold, as Justice Raghavan did in O. P. No. 3416 of 1968, from which decision the Writ Appeal (Writ Appeal No. 506 of 1969) that we have heard along with this original petition was taken, that when an authority is resisted in the exercise of power under Section 10 of the Telegraph Act he has no alternative but to approach the District Magistrate for necessary orders under Section 16 (1) of| the Telegraph Act. We hold accordingly.
27. A word may be said about what is meant by "resistance" or "obstruction" before we pass on to the next point as arguments turned on the question as to whether there should be physical obstruction; counsel for the respondents maintaining that there must be physical obstruction and counsel for the petitioner canvassing for the position that even objection taken to the proposal or to the action taken will be sufficient. Resistance is a much wider word than obstruction, and we consider that objection taken in any tangible and identifiable form will constitute resistance.
28. One other subject which came up for discussion was the question whether a notice should be issued by the public officer, licensee or other person chosen by the State Government under Section 51 of the Electricity Act for the conferment of powers under the Telegraph Act to the owner or occupier or other person in the control or management of the property over which the electric supply line is proposed to be placed intimating the intention of the authority to place supply lines over the property. Isaac, J. has held in his judgment in O. P. No. 1454 of 1967 (Ker) that a notice should be given in order to satisfy the requirements of natural justice and also because unless a notice is given "the owner of the land will not be in a position to know under what authority action is being taken." There may be yet another reason in favour of the contention that notice should be given normally, that unless the owner or occupier is Informed of the exact nature of the proposal for laying the electric supply line he will not be in a position to decide whether the exercise of the power should be resisted or obstructed. Even so, we do not think that in the light of the provision in Section 16 (1) of the Telegraph Act under which the District Magistrate has been given the power to decide whether an order should be passed that the authority should be permitted to exercise the power, a prior notice to the owner or occupier is necessary. The whole procedure under the scheme of the provisions in Part III of the Telegraph Act seems to be different. As the provisions stand, we do not think that it is obligatory on the part of the competent authority to issue a prior notice before exercising the power under Section 10 of the Telegraph Act. Before passing an order under Section 16 (1) the District Magistrate has necessarily to issue notice to all persons interested and give them an opportunity to state their objections, if any. Without giving such an opportunity he will not have any material, at any rate, adequate material to decide whether he should pass an order that the authority shall be permitted.
No doubt, it will be proper and certainly desirable that the owner or occupier should be informed before acts are done on his property. It is conceivable that, when he is so informed, the exact location and the alignment of the line can be settled without resistance or obstruction by mutual understanding. However that be as we understand the provisions in the Telegraph Act. Part III, we do not consider it necessary that there should be prior notice.
29. Before we conclude we must refer to the arguments advanced by counsel regarding Ext. Rule 5, the notification issued conferring on the authorities mentioned therein the powers under the Telegraph Act. It is contended that the power to lay the electric supply lines have not been conferred on the authorities and that this is clear from the wording of the notification which we shall read:--
"In exercise of the powers conferred by Section 51 of the Indian Electricity Act. 1910 (Act 9 of 1910) the Government of Kerala hereby confer, upon the Chief Engineer, the Additional Chief Engineer (Operation) the Electrical Superintending Engineers and Executive Engineers of the Kerala State Electricity Board to exercise within their respective jurisdictions, for the placing of appliances and apparatus for the survey and construction of lines etc. for the transmission, distribution or use of electrical energy within their respective jurisdiction, all the powers which the Telegraph Authority possesses under Sections 10 to 18 of the Indian Telegraph Act, 1885 (Act 13 of 1885) with respect to the placing of telegraph lines and posts for the purposes of a telegraph established or maintained by Government or to be so established or maintained."
No doubt, the wording Is not very happy, but it is impossible to accept the interpretation that counsel for the petitioner seeks to place on it. It is clear that the powers in regard to the matters specified in Section 51 of the Electricity Act have been conferred on the authorities mentioned in Ext. R5. We see nothing in the rules in regard to the interpretation of the granting of such powers which will militate against the view that we have taken. Counsel suggested that the granting of the power under Section 51 is an exception to the general scheme of the Act, that such conferment of power impairs the right to property and that every conferment of a power is an important act and for these reasons the notifications should be construed strictly. Even by applying these principles we are unable to read the notification in any manner other than that the powers mentioned in Section 51 have been conferred on the authorities mentioned in Ext. R5.
It is clear that the proposal to lay electric supply lines has been resisted as is evident from the filing of this Original Petition. The District Magistrate will, therefore, have to be approached. We direct the respondents to do so, if they wish to proceed with the laying of the lines over the petitioner's property.
30. This Original Petition is ordered as above. There will be no order as to costs.