Karnataka High Court
S.M. Rao And Others vs State Of Karnataka And Others on 5 April, 1999
Equivalent citations: ILR1999KAR3176, 1999(6)KARLJ450, AIR 1999 KARNATAKA 475, 1999 (4) KANTLD 20, (1999) ILR (KANT) 3176, (2000) 1 CIVILCOURTC 170, (1999) 6 KANT LJ 450
ORDER
1. The controversy raised in these writ petitions centers on the right of respondents 2 and 3 to draw service line for supply of electrical energy to the 4th respondent.
2. The petitioners herein own various extents of land described in the writ petition in Siddedahalli Village, Yeshwanthpura Hobli, Bangalore North. The 4th respondent is a Public Limited Company engaged in the manufacture of certain goods whose main consumers are Central and State Government. As per Order No. DE 87 EEB 92, Bangalore, dated 12th May, 1993 of the Government of Karnataka, the 4th respondent was sanctioned supply of additional power to an extent 500 KVA from the 2nd respondent on the basis of the recommendation of the 38th High Power Co-ordination Committee at its meeting held on 29-3-1993. The second respondent issued work order Annexure-G dated 27-5-1994, directing the 4th respondent to draw 66 KV H.T.U.G. cables for a distance of 3 kms., in terms of the condition made mention therein and also in compliance with the statutory provisions including the Karnataka Electricity Board Electricity Supply Regulations, 1988. The petitioners while questioning this grant itself they also challenge the steps taken by the respondents to draw the service lines. They question the very formulation of the scheme for the supply of electricity to 4th respondent and as a successive steps taken for the implementation of the scheme. The grounds on which the challenge is sustained are many fold. They include mainly:
(i) The work is being carried out by respondents 4 and 5 in violation of the work order issued by the 2nd respondent;
(ii) That the work is being executed by the 4th respondent himself without reference to the statutory requirements;
(iii) That Section 51 of the Electricity (Supply) Act, 1948] does not envisage the conferring of the powers under the Indian Telegraph Act in favour of either the 4th respondent or the 5th respondent.
(iv) That the activities of the respondents amount to development as envisaged under the Karnataka Town Planning Act, 1961 and the activities violate Section 75-M thereof.
(v) The provisions of the Indian Electricity Act is also violated.
3. The petitioners also complain that there has not been due publication of the scheme as required under Sections 28 and 29 of the Indian Electricity (Supply) Act, 1948. It is averred that yielding to the undue influence of various land owners the alignment of the electrical line was changed, to exclude their land and to include that of the petitioners.
4. These points are highlighted by several subsidiary points which can be dealt with simultaneously while we consider the main points.
5. The respondents 2 to 4 have filed lengthy statement of objections traversing and denying every one of the allegations made by the petitioners. It is unnecessary to paraphrase the lengthy statements at this stage. The thrust of the contention is that there has not been violation of any statutory provisions in the preparation of the scheme, that the work order has been complied with while carrying out the work, that due notice has been given to all affected parties, that the need of the 4th respondent is a public purpose, that the service line is drawn in such a manner that minimum harm would be caused to the land owners through which the line passes that there may not be as much adverse affectation as has been complained of by the petitioners, that as the land is being used for placing the electrical post there would be no loss to the petitioners, that any variation to the work order effected is after keeping in view the safety aspect, that High Tension Underground cable is not feasible from the safety angle and that overhead cables are safer, that as per the present alignment there will be least injurious affectation to the petitioner, that all angles were kept in mind while preparing the scheme to draw the electrical line in question.
6. Several documents were produced by both the sides and the matter was elaborately argued. Before we proceed in the matter it will be apposite to bear in mind the scope of judicial scrutiny in these areas. By virtue of Section 51 of the Electricity Act, 1910, it is provided that the State Government may confer any of the powers conferred on the Telegraph Authority under the Indian Telegraph Act, 1885 on the 2nd respondent for the purpose of placing of electric supply lines and apparatus etc. It means by conferment of such power in writing as provided in Section 51 of the Electricity Act, authorities are entitled to exercise the power conferred under Sections 10 to 19 and Section 34 of the Indian Telegraph Act. Section 10 in turn empowers to place and maintain telegraph posts. The main section reads thus:
"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 herein provided, the Telegraph Authority shall not exercise those powers in respect of any property vested in or under the control of management of any local authority without the permission of that authority; or
(d) in the exercise of the powers conferred by this section, the Telegraph Authority shall do as little damage as possible, and when it is exercised those powers in respect of any property other than that pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers".
7. Now, while exercising this power, it is clear that there would be no transfer of ownership with respect to the property where the post is placed. It is only a limited right of entry to plant the post etc., and maintain them. Now, if the Telegraph Authorities are resisted while exercising this right, the authorities are entitled to move the District Magistrate to remove the obstruction who can order that the concerned authorities may exercise the rights under Section 10 unobstructed. Section 16 in this behalf reads as under:
"(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 a 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 (d), 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".
8. The wordings herein makes it abundantly clear that it is not an enquiry regarding the validity of the sanctioned scheme and there is no adjudication of any of the contention of the parties in such a proceedings regarding the parameters of the scheme except the right of the 2nd respondent for the removal of the obstructions. This aspect is clearly put across thus by the Full Bench of the Kerala High Court in Momoo v State of Kerala:
"If he is resisted or restricted he seeks permission from the District Magistrate whose adjudication does not cover the question whether a line is to be drawn over any specific item of property or whether posts are to be erected or not in any specific item of property. Section 16 does not indicate that as within the power of the District Magistrate, the enquiry by the District Magistrate would be in the nature of a ministerial enquiry. There is no question of calling for evidence, sifting such evidence and coming to a judicial decision thereon. In the event such judicial decision on issues was contemplated by Section 16(1) there would necessarily have been indication in the section as to the issues that could be so considered and judicially disposed of by the District Magistrate. No doubt Section 16(1) provides that in granting permission to the Telegraph Authority the District Magistrate is to exercise his discretion. Of course even in passing an executive order there is need for exercise of discretion and that need not render his proceedings judicial in character. The discretion has to be judicially deciding an issue".
9. Therefore there is a right in the Department for the purpose of implementation of a sanctioned scheme to enter into a property if authorised under Section 51 of the Act to lay its poles for drawing the electricity line. If they are resisted, the District Magistrate can be moved who can order removal of the obstruction if any. The scope of enquiry before the District Magistrate is thus far and no further. It is like an execution proceedings. All that the District Magistrate would be concerned with would be to ascertain, whether there exists a sanctioned scheme. He merely assist the Board to implement the scheme, It is like an Executing Court which cannot jurisdictionally go behind the decree. Clearly in such an inquiry there is no scope for inquiry by the officer as to the feasibility or otherwise of the scheme itself. When, once a valid scheme shown to exist, then the authority exercising power under Section 16 is duty bound to order removal of any obstruction so as to implement the scheme. And any obstruction thereafter amounts to an offence punishable under Section 188 of the IPC.
10. In this case this Court ordered thus on 22-7-1996:
"The Board has filed a sketch showing the line originally proposed, the line subsequently proposed and the line now proposed. As per the latest proposal (shown in Green), no tower will be erected on the land of the petitioners. The Board has also stated that line will pass at the eastern extremity of the land causing minimum inconvenience to the petitioners. Learned Counsel for the petitioners however, does not agree.
In view of the resistance and obstruction by the petitioners, it is obvious that Board cannot continue the work unless they obtain an order removing the obstruction under Section 16 of the Indian Telegraph Act. It is evident that no such order has been obtained. Hence, as on today, the Board cannot proceed with the work. Therefore, interim order has to be continued reserving liberty to the Board to approach District Magistrate under Section 16. If the Board is able to get an order from the District Magistrate for removal of obstruction, at that stage, the Board may approach this Court again for modification of the order and the matter will be considered thereafter.
Interim order to continue".
11. After the inquiry as directed, the District Magistrate passed the order now impugned, permitting the respondents to draw the line. In the light of the observation of the decision referred to above the scope inquiry of this Court vis-a-vis as to the correctness of the order under Section 16 is clearly nil. The competent authority need not enquire as to whether, the scheme was prepared validly, whether, relevant considerations alone were taken into account and irrelevant considerations were eschewed while preparing the scheme whether the petitioner had an effective opportunity to highlight his objections, whether the authority applied its mind while considering the objection etc. etc. To put it differently it is not a jurisdiction akin to certiorari that is being exercised by the authority under Section 16 of the Act. The inquiry begins with the existence of a sanctioned scheme and whether its implementation is being obstructed, If that be so the question then would be, can the petitioner by means of a collateral attack of the scheme itself, contend that the power exercised by the District Magistrate under Section 16 is unsustainable? Or alternatively, can the petitioner disguise his attack on the scheme prepared by Board by attacking the implementation order made under Section 16 of the Telegraph Act?
12. The right to judicial scrutiny of an action which has civil consequence on the rights of a citizen to enjoy his property has been always recognised by the Courts. The petitioners complain that their right to enjoy the property is curtailed by means of an illegal preparation of a scheme by a statutory body like the 2nd respondent. An inquiry into this contention would take us to examine the validity or otherwise of the scheme prepared by the 2nd respondent. Perhaps with the object to avoid such complaints the Electricity (Supply) Act, 1948 have provided certain in-built safeguard. The important provisions relied on by the Counsel for the petitioner in this behalf are Sections 28 and 29.
13. When we examine the question of judicial scrutiny, there are certain limitations on the powers of the Court in a situation like this. We have seen that drawing of electricity lines and supply of power to the consumers is the work entrusted to the second respondent by statute. Elaborate provisions are made in the Indian Electricity Act and Electricity (Supply) Act in this behalf. Statute itself provides framing of elaborate regulation and rules for the exercise of its powers under these enactments. The object of these subsidiary rules and regulation is to safeguard public safety visualised in the statute and to promote effective distribution of electricity. The 2nd respondent is a monopoly distributor of the power generated in the State. Therefore any scheme prepared should be in consideration and in accordance with these provisions utilise or conserve as the case may be the maximum of power resources. Therefore when a scheme prepared in accordance with these provisions is complained to be in violation of statutory provisions such complaints should not be entertained merely because for a layman the scheme appears to be defective. Because in the first place it has to be noticed that the Board alone has the competency to decide as to whether the scheme thus prepared does violate the statutory requirements. Whether, all safety angles are kept in view while preparing the scheme and whether the power being supplied and put to optimum use. Admittedly, this Court do not have any technical competency to examine these aspects while dealing with such a complaint, and the absence of such inherent expertise should permit the Court to rely more on the decision taken by the expert like the 2nd respondent in this behalf.
14. The Electricity Board, is a technical body created by the statute for the purpose of supply of electrical energy generated in the State. In discharging the said function, it has to keep in mind and observe such technical and other matter insisted upon by the statute and regulations. It is an admitted fact that it is the routine business of the Board, to prepare and implement scheme for supply of electricity. It would have gained vast experiences in this behalf, gained by practice. In such cases, it would not be incorrect to assume that the Board's decision must normally rest on its own expertise acquired by implementing such schemes earlier and its judgment in this behalf should be accepted as correct rather than undertaking an autopsy of the same on the basis of any particular factual details discovered by a layman. In such cases, mathematical details need not be shown to exist to support the decision of the Board and its schemes. An expert body like the 2nd respondent can be presumed to have conducted itself properly and prepared the scheme as an expert would rather than inferring the Board to have violated statutory and regulatory provisions.
15. In this case the first violation complained of is the non- publication of the notification, Annexure-H with more details. According to learned Counsel Mr. Prabhu, such notification should have appeared simultaneously in the Gazette and dailies and should have contained more details indicating the precise route that the line would travel unlike the cryptic notification, Annexure-H published in this case. To understand this contention, one has to keep in mind the scope and ambit of right being exercised by the Electricity Board. As is demonstrated earlier, the Electricity Board does not intend to acquire any right over the land over which the electric line is being placed. It is only seeking a right of the user of the land which according to them would be appropriate designated land to draw the line. It is for the Board to decide the appropriate land to locate the Towers/Poles etc., for the purpose of drawing line. The particular land that would be suitable can be identified by them after due investigation in the village. It is not for the owner or others to point out as to which land should be utilized for drawing the line and as to which land should not be used. If such objections are to be entertained, that would result in the serious interference with the technical functioning of the 2nd respondent executing its various projects. It would have chosen the point to tap the line taking into account the supply capacity technically and could have drawn the line keeping in mind the land condition. If people are permitted to dictate the land through which the line has to be drawn it may result in no technically feasible land being made available for the purpose of drawing the electric line. To highlight their complaint, the petitioners allege that there has been undue influence exerted in excluding more viable route and choosing the land of the petitioners. After the decision to supply power, the 2nd respondent inspects the village and decide the route through which the line has to travel. Various consideration would prevail with the competent authority in choosing the route. It may be the soil condition to erect the supply towers, lack of population to achieve safety, to diminish the distance of the line, transmission loss etc., etc. Merely because some land is left out, it need not be due to undue influence. Besides it is settled law that mere allegations of undue influence mala fide etc., in the matter would not replace the proof. Without anything more it is difficult to hold that the present line for drawing the line was fixed yielding to the influence of any third party. The second respondent is a body corporate. It has to exercise its function rationally and in accordance with rules and regulations. As long as it is shown that the alleged violation of Regulation 4 of 1988 Regulations even if it does exist (assuming for argument sake) do not affect the safety aspects, this Court cannot treat it as a ground to invalidate the very scheme. The Regulations of 1988 has been framed with safety as its prime object and not with intend to provide grounds of objections to the schemes framed and to challenge the scheme, at the behest of interested third parties.
16. The other grievance of the petitioner is that sanction order produced shows that electrical lines should have been drawn underground and now, ignoring the said condition petitioners allege that overhead lines are sought to be drawn. This according to the petitioners is a serious unauthorised alteration. This may be a point to be considered without anything more. But in reply to this allegation, the Electricity Board has indicated the care and caution taken by them while implementing the scheme. In the statement it is stated thus:
"The authorities to carry out the work one Chief Engineer (O and M), Bangalore is responsible for operation and maintenance of power systems. The Chief Engineer, Electricity, Major Works, Bangalore is the Officer-in-charge of construction of new lines including surveying etc. The Chief Engineer, Major Works who has to finally decide whether the lines have to be drawn overhead or underground after inspection of the work spot. It is also responsible for obtaining clearance from statutory authorities like power telecommunication co-ordination committee which is a must".
This means they have made detailed study of the viability of the scheme as contained in the work order from various angles and hence would have adopted the overhead cable to replace the underground cable. One cannot say that this is arbitrary or illegal. This Court does not possess sufficient technical knowhow to decide as to whether the change effected was right and whether there is any illegality in making the alteration of the work order. The work order merely states that a service line may be drawn for the supply of the power to the consumer and the work shall be carried out so as to facilitate in an efficient manner the supply of electricity to the consumer. It does not mean that it shall be done in a particular manner alone as indicated and in no other manner ignoring safety aspect. The work order is not a statutory order or a charter of conditions. It is an order for the use of the 2nd respondent to make it possible to draw the line. Alterations of the work order in the course of carrying out the work depending on the practicability of the drawing of line can always be given effect to and such power cannot be ruled out.
17. The next contention is that Section 28 notification has not been duly published. As said earlier it is not an acquisition proceedings. The electrical line is being drawn for the supply of power to the consumers. It is sufficient to inform the public indicating the village through which the line is being drawn. As a matter of fact, the definite area on which the Tower etc., are to be placed can be known only after a spot inspection is made and viability is worked out. But I should certainly hasten to add, that if the Sy. Nos. in the village are also indicated, that will make the notification more precise. Such details will also inform the affected person to arrange his affairs. But, absence of these details are not fatal. When the line has to travel a long distance as in this case, non-mention of the Sy. Nos., is not certainly fatal, Many a time drawing of the line depends on the soil condition and other local situation as well. If that be so they cannot in advance contemplate as to through which property the line will have to be drawn. They need only say as to the village through which the line is being drawn. That has been complied in this case, and as such there is substantial compliance of the statute.
18. Two other aspects that are also raised by the petitioners may now be adverted to. It was stated that conferment of power under Section 51 of the Act can be done only on the 2nd respondent and not on either the 4th respondent or the 5th respondent. Mr. Prabhu, learned Counsel, submitted that neither the 4th respondent nor his agent, 5th respondent can exercise any of the powers under the Telegraph Act, as the said powers cannot be legally conferred on them under Section 51 of the Act. This submission in fact overlooks the provision of Regulation 4 of 1998 Regulations referred to supra. It is clear from Regulation 4 that it is the duty of the consumer to carry out the work under the work order of laying the line from the point of supply to his premises on behalf of the 2nd respondent. The work will be supervised by the 2nd respondent. Regulation 4,14 states that the service line work from the terminal pole up to the point of commencement of supply, whether overhead underground, shall be got done by the consumer through a contractor. Regulation 4.16 makes it clear that permission to lay service line under, across or over the consumer's premises or for fixing apparatus upon the said premises by the Board, shall be deemed to be implied and vested with the Board. It is clear from these provisions that the service line once completed would belong to the Board. In fact what the Board has to carry out by its own management is being carried out at the instance of the Board by the consumer as its agent. The consumer only acts as the agent of the Board. The principle of "delegatus non potest delegare" does not arise in such cases as there is no delegation at all of its power by the 2nd respondent to the 4th respondent or its employee, the 5th respondent. It is the realm akin to master and servant relationship. Therefore, the conferment of the power given on the Board under Section 51 of the Act will necessarily enure to the benefit of the consumer who acts only as his agent or servant. It is also to be noted that the Board is collecting charges for supervision for the construction of the service line which circumstance is obvious to indicate that the entire responsibility of the construction is taken over by the Board. The complaint that there has been illegal authorisation to the 4th and 5th respondent under Section 51 of the Act is therefore untenable.
19. The other contentions urged by the learned Counsel is the violation of Section 76-M of the Town Planning Act. But in view absence of necessary parties to the proceedings namely the local authority this question cannot be gone into. Besides, the examination of the said contention again beg the question whether the validity of the scheme can be gone into by this Court. As this aspect is outside the judicial scrutiny of the Court, I reject this contention.
20. The other contention urged, namely that consent of the owners of the land through which the line travel was not secured by respondents 4 and 5 before laying the poles and towers to draw the electric line recedes to background, when we remember that the line is being drawn in exercise of the powers conferred, under the Section 51 of the Electricity Act read with Sections 10 and 16 of the Telegraph Act. If there is an order in this behalf, then no consent is called for.
21. Thus the grievance of the petitioners highlighted herein do not go to the root of the matter and cannot be examined.
22. As regards to the right of judicial review in such circumstances, the following passage from "Philosophy of Law" - Jeffrie G. Murphy and Jules L. Coleman may be adverted to:
"In judicial review application of strict scrutiny to the encumbrance of a right involves the application by the Court of a two pronged test that places a very heavy burden of justification on the State. In order to justify encumbering a fundamental right, the State must show (1) that the right must be encumbered in order to accomplish a compelling (and not merely rationally desirable) State goal or interest, and (2) that in accomplishing its compelling interest, the State is employing the least restrictive means possible - i.e., it is encumbering the right only to the degree actually necessary to attain its compelling goal".
23. The clainrof the petitioners in these cases cannot be described as fundamental in nature and if so, there is no encroaching on the said right of the petitioner by the State. Likewise, the State is encumburing the right of the petitioner in his land to minimal extent. In such circumstances the impugned action does not call for any scrutiny by means of a judicial review.
24. In these writ petitions, it is not demonstrated that the competent authorities were influenced by irrelevant considerations and have kept out relevant materials in the decision making process. I do not find any grounds to interfere with the action of the respondents. Accordingly, the writ petitions are dismissed.
25. Before parting with this case I wish to highlight the difficulties experienced by a citizen in view of the exercise of a State action, for want of an appropriate forum to ventilate his grievances. The 2nd respondent is the State and it exercises its statutory powers conferred on it in the matter of supply of electrical energy to its consumer. The 2nd respondent is a monopoly organisation as well. It exercises its right is professedly for the larger interest of the Society. This may include exercise of a right in relation to the drawing of electricity line, need for setting up transformers, locating of such transformers etc., etc. Besides, there be the difficulties commonly experienced in the matter of power consumption bills by the consumers. By virtue of the statutory exercise of the rights of the 2nd respondent, a citizen has to depend on them alone for adjudication of his various grievances. Due to a variety of technical limitations this Court may not be in a position to deal with such problems effectively. And even it does, it is not desirable to encourage a citizen to make frequent excursions to this Court in this behalf as it might delay, at times, important project works undertaken by the 2nd respondent. Besides avoidance of such recourse could reduce otherwise avoidable delay as well.
26. This case illustrates an instance which is an appropriate case to draw the attention of the authorities as to the need to make such appropriate statutory amendments to the concerned legislation to create a forum before whom an aggrieved persons like the petitioners herein can ventilate their grievances. Invariably, the contending parties may not and need be as powerful as in this case to approach this Court. Creation of an institution akin to Ombudsman in the 2nd respondent who has power to examine the grievance of a person, against the action of 2nd respondent including such as the one involved in this case is justified by the circumstances, Gellhorn in his book "Ombudsmen and Others" (1966), highlighting the need of such an institution states thus:
"Whatever the merits and inadequacies of both the continental and the common-law type of administrative justice may be, a number of countries of both systems - socialist as well as capitalist - have found it necessary to empower readily accessible, professionally qualified, wholly detached critics to inquire objectively into asserted administrative shortcomings. Institutionalizing the giving of expert criticism accomplished by each of the countries in its own way, has distinctly contributed to strengthened public administration". (Gellhorn, 1966, p. 422)
27. It is desirable to create an institution who is independent from the control of the 1st and 2nd respondents and whose business is to receive and inquire into complaints brought by aggrieved persons with minimum formality and cost. With the advancement of years the activities of the 2nd respondent is growing. When the Electricity Act of 1910 and the Electricity (Supply) Act of 1948 were legislated, the scientific achievements were not as advanced as it is today and the population was also far less. Large areas of land were available to lay electric lines etc.; it was perhaps for this reason that need of such a body was not visualized in the Act. But with the passage of time the scenario has totally changed. With more and more utility for electricity and its generation having also been increased, it resulted in the increase in the number of consumers. Thereby, it resulted in the 2nd respondent in expanding its activities. It is obvious that more and more citizens would feel aggrieved by such action of the 2nd respondent giving rise to more crop of litigations. In such circumstances there should be an in-built mechanism to examine the grievance of ordinary persons rather than they being drawn into Court and the Court stepping into and examining all matters for which it is not qualified technically. Even if thereafter, it becomes necessary for this Court to examine the dispute, then this Court will have the benefit of the decision of an independent body on the issue.
28. In order to reduce complaints against the actions of the 2nd respondents of alleged arbitrariness and to mitigate Court litigation, I hope that 1st and 2nd respondent would pay immediate attention to what is stated above and take such statutory/administrative steps as are felt necessary for the constitution of an adjudicatory body as in the nature of Ombudsman referred to above.