Patna High Court
Patna Electric Supply Co. Ltd. vs Patna Municipal Corporation, New ... on 9 December, 1968
Equivalent citations: AIR1969PAT355, 1969(17)BLJR742, AIR 1969 PATNA 355
JUDGMENT Misra C.J. 1. The petitioner, the Patna Electric Supply Co., Ltd., is a company incorporated under the Indian Companies Act, having its registered office at 14 Old Court House Street. Calcutta, and holds the interest as an assignee of the Patna Dinapore Electric Licence 1923 granted by the Government of Bihar and Orissa under the Indian Electricity Act, 1910, to Messrs. Octavius Steel & Co. Ltd. for supplying electrical energy in the area specified under the licence. The area specified in the original licence was modified and extended from time to time and is included within the jurisdiction of opposite party No. 1, the Patna Municipal Corporation. The company laid down and placed supply lines for conveyance and transmission of energy under the provisions of S. 3 of the Electricity Act. The work was executed within the period of three years as required by the schedule to the Act. The licensee? was required first. in terms of paragraph 6 of the licence, that, for the purposes of Clauses V, VI, VII and VIII of the schedule to the Act, the supply of energy was to be compulsory only within the limits of the area administered by the Patna Administration Committee, apart from some other areas which were administered by the Patna City Municipality. 2. The petitioner entered Into several agreements with the Patna City Municipality and the Patna Administration Committee from time to time for providing electric light for the streets for the benefit of the general public, with lamps of various candle powers, and the Patna Administration Committee and the Patna City Municipality undertook to make payment to the petitioner on various rates according to the candle powers. The Patna City Municipality and the Patna Administration Committee were, however, substituted by the Patna Municipal Corporation, and they were constituted under the Patna Municipal Corporation Act. Under clause (Section?) 3 of the Act, all contracts entered into with and all matters and things engaged to be done by, or for, the Patna City Municipality or the Patna Administration Committee were described to have been incurred by or entered into with or engaged to be done by or for the Corporation as constituted under the Act. Under Section 51 of the Electricity Act, the State Government is empowered to confer on any licensee engaged in supply of energy to the public under the Electricity Act any of the powers which the telegraph authority possesses with respect to the placing of telegraph lines and posts for the placing of electric supply lines for the transmission of energy or for the proper coordination of works. 3. Under notification No. 64/Elec., dated the 11th August, 1966, published in the issue of the Bihar Gazette of that date, the State Government conferred upon the petitioner powers for placing of electric supply lines, appliances and apparatus for the transmission and distribution of energy by the petitioner within the area of the supply which the telegraph authority possesses under Sections 10 to 18 and 19A of the Indian Telegraph Act, 1885, with respect to the placing of telegraph lines and posts. 4. On the 8th of December, 1967, a communication was received by the petitioner from the Patna Municipal Corporation purporting to make a demand from the petitioner for the levy of fees for the lands occupied by it for fixing electric poles in the Corporation area and calling upon the petitioner to intimate the total number of electric poles fixed within the limits of the Corporation and also the area occupied by such poles. On the 26th of December, 1967, the petitioner objected to the demand in its reply, saying that, under the terms of the licence granted and by virtue of Section 12 (1) of the Electricity Act, the petitioner had the right to lay down and place electric supply lines in any public street and carry out necessary works with respect to the supply of energy within the area of supply, and that the petitioner was not under any obligation to pay any compensation on that account. It transpires, however, that, on the same day, i.e., the 26th December, 1967, the Administrator of the Patna Municipal Corporation issued a letter imposing on the petitioner a ground rent of Rs. 1.50 per pole per month and forwarded a bill for Rs. 51000/-only on account of such imposition for the month of December, 1967, threatening to take action in default of payment of the amount required to be paid on this account. On the 30th December, 1967, the petitioner wrote back to the Administrator, saying that electric poles were fixed in terms of the licence. The Administrator, in his letter dated the 4th January, 1968, took up the stand that, although the petitioner as licensee was entitled to lay down and supply electric supply lines on any public street, the Corporation had powers under Section 262 of the Patna Municipal Corporation Act to impose ground rent because of the Licensee-petitioner fixing electric poles on the Corporation street. True copies of these letters have been annexed as B and E to the application. 5. Section 262 of the Patna Municipal Corporation, Act, 1951, provides as follows:-- "Prohibition of obstructions in streets. No person shall, except with the permission of the Chief Executive Officer, and in accordance with such conditions including the payment of rent, as he may impose either generally or specially in that behalf, place or deposit upon any street or drainwall or channel therein, any stall, chair, bench, box, ladder, bale, tray, goods or other things and the Chief Executive officer may without giving notice remove any such stall, chair, bench, box, ladder, bale, tray, goods or other things or may in lieu of such removal collect such rent for the use of the land as he may impose." Mr. Balbhadra Prasad Singh for the petitioner has contended that the demand made by the Patna Municipal Corporation for payment of the amount in question in terms of Section 262 cannot be supported. That section relates to placing or deposit upon any street or drain, well or channel therein, any stall, chair, bench, box, ladder, bale, tray, goods or other things. This provision is intended for a purpose entirely different from the object to which it is sought to be applied by the Patna Municipal Corporation. As a matter of fact, the items referred to in Section 262, which are not permitted to be placed on any street maintained by the Patna Municipal Corporation, are matters in the nature of obstruction to the street which an ordinary resident within the limits of the Corporation may, in course of his ordinary transactions, be expected to put. This section prohibits the causing of such obstructions unless the Chief Executive Officer, in his discretion, would allow them to be placed, being satisfied that they will not cause any considerable inconveniences to the public and, at the same time, they may be a source of income to the Corporation, inasmuch as those, who find it necessary to put a stall, etc., may be required to pay a fixed amount as rent for the user of the land lying within the municipal area. The fixing of electric poles, however, on the streets within the Municipal Corporation is governed not by Section 262 of the Patna Municipal Corporation Act but by the Indian Electricity Act (9 of 1910) and the Indian Telegraph Act (13 of 1885). He has drawn our attention in this connection to Section 12 of the Electricity Act which relates to provision as to opening and breaking up of streets, railways and tramways. The licensee, who is permitted under Section 3 of the Act by the State Government to supply electrical energy in a specified area, is also authorised to lay down or place electric supply lines for the conveyance and transmission of energy. Section 12 confers an unfettered power on the licensee to open and break up the soil and pavement of any street, railway, tramway, etc. when permitted by the terms of the licence, in the process of laying down or placing electric supply-lines within the area of supply. Sub-section (2) of this section no doubt, lays down some restriction upon this right of the licensee in so far as it relates to laying down the supply-line through or against any building or on over or under any land not dedicated to public use. Sub-section (5) lays down that nothing contained in Sub-section (1) shall be deemed to authorise or empower any licensee to open or break up any street not repairable by the Central Government or the State Government or the local authority except such streets, railways or tramways or such parts thereof, as he is specially authorised to break up by his licence, without the written consent of the person by whom the street is repairable or of the person for the time being entitled to work the railway, etc..... Section 13 relates to notice of new works. Sub-section (3) of Section 13 lays down: "Notwithstanding anything in this section, the licensee may, in case of emergency due to the break-down of an underground electric supply-line, after giving notice in writing to the repairing authority or the owner, as the case may be, of his intention to do so, place an overhead line without complying with the provisions of Sub-section (1)." Reference may also be made to Section 18 which deals with the laying of overhead lines. It may be stated that this section has been relied upon in particular by Mr. Lalnarayan Sinha in so far as it provides: "Save as provided in Section 13, Sub-section (3), nothing in this Part shall be deemed to authorise or empower a licensee to place any overhead line along or across any street, railway, tramways, canal or waterway unless and until the State Government has communicated to him a general approval in writing of the methods of construction which he proposes to adopt. "Provided that the communication of such approval shall in no way relieve the licensee of his obligations with respect to any other account required by or under this Act." 6. Mr. Balbhadra Prasad Singh has contended that Section 12, referred to above gives a statutory authority to the licensee to do the acts referred to in Section 12 in the course of laying an electric supply-line which also involves the fixation of electric poles in the streets, and a municipal authority is not empowered to put any obstruction in the way of laying of such supply-lines by way of demanding any rent for fixation of the poles. He has also contended that identical provisions are to be found in the Indian Telegraph Act. Section 10 of this Act confers similar power on the telegraph authority. It lays down that 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 immoveable property. Clause (c) of the proviso to this section, no doubt, states that, 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. Section 12, no doubt, empowers the local authority, while granting permission, to lay down certain conditions, which must be reasonable in the opinion of the local authority; but this section also circumscribes within certain limits the exercise of this power in so far as it is confined to the payment of any expenses to which the authority will necessarily be put in consequence of the exercise of the powers conferred by that section, or as to the time or mode of execution of any work, or as to any other thing connected with or relative to any work undertaken by the telegraph authority under those powers. 7. It has been urged that, with reference to none of the provision set out above either in the Electricity Act or the Telegraph Act, can the imposition of any levy by way of rent by the Patna Municipal Corporation be held to be legal and justifiable. Section 51 also widens the power of the licensee under the Electricity Act to exercise any of the powers which the telegraph authority possesses under that Act with respect to the placing of telegraph lines and posts for the purposes of a telegraph established or maintained by the Government or to be so established or maintained. 8. Mr. Lalnarayan Sinha for the Patna Municipal Corporation has contended that the argument of Mr. Balbhadra Prasad Singh for the Patna Electric Supply Company, in so far as he has urged that the power to lay electric supply-lines being conferred in terms of the two Acts as soon as the licence was originally granted and subsequently renewed, cannot be accepted, inasmuch as this may apply to underground laying of wire but not to overhead wire connections. We were inclined at one stage to determine the merit of the respective contentions: but our attention has been drawn to certain provisions in the two Acts in regard to arbitration. Section 52 of the Electricity Act provides that, where any matter is, by or under this Act, directed to be determined by arbitration, the matter shall, unless it is otherwise expressly provided in the licence of a licensee, be determined by such person or persons as the State Government may nominate in that behalf; but the kind of right which opposite party No. 1, Patna Municipal Corporation, is claiming has not been specifically made the subject-matter of arbitration in any section of the Act. Section 19, which provides for compensation for damages, lays down in Sub-section (2) that, save in the case provided for in Section 12, Sub-section (3), where any difference or dispute arises as to the amount or the application of such compensation, the matter shall be determined by arbitration. To such a situation, no doubt, Section 52 of the Act shall be applicable. Sub-section (3) of Section 12 confers special power upon the District Magistrate or the Commissioner of Police to fix the amount of compensation or of annual rent or of both, which should in his opinion be paid by the licensee to the owner or occupier. But the amount of compensation relates to the damage, detriment and inconvenience caused by the licensee in exercise of the powers conferred under this Act. Mr. Lalnarayan Sinha has contended that the mere fact of fixation of electric poles on the streets within the area of the Patna Municipal Corporation shall amount to an act of detriment and inconvenience, and, as such, this too may be in any view determined by arbitration. Sub-spction (1) of Section 15 of the Telegraph Act, however, provides as follows : "If any dispute arises between the telegraph authority and a local authority in consequences of the local authority refusing the permission referred to in Section 10, Clause (c) or prescribing any condition under Section 12, or in consequences of the telegraph authority omitting to comply with a requisition made under Section 13, or otherwise in respect of the exercise of the powers conferred by this Act, it shall be determined by such officer as the Central Government may appoint either generally or specially in this behalf." Sub-section (2) of Section 15 provides: "An appeal from the determination of the officer so appointed shall be to the Central Government, and the order of the Central Government shall be final." There can be no question that the present dispute, if anything, will boil down to a condition being imposed by the Municipal Corporation for the Patna Electric Supply Company to continue the existence of electric poles which were originally laid in terms of the licence. If the Patna Electric Supply Company has the power of the telegraph authority under Section 10 of the Telegraph Act or the power of the licensee under Section 12 of the Electricity Act, it might have the power to fix the poles for running the electric supply-line; but, if the Municipal Corporation, at a subsequent stage, has thought it fit to impose any levy or demand rent, it is certainly a dispute between the local authority, being opposite party No. 1, the Patna Municipal Corporation, and the Patna Electric Supply Company which is equivalent to the telegraph authority and is in the position of the licensee under the Electricity Act, and the dispute can be determined under Section 15 of the Telegraph Act. I have already indicated that Section 51 of the Electricity Act makes the provisions of the Indian Telegraph Act, 1885, applicable to the Indian Electricity Act as well, and, as such, Section 15 of the Telegraph Act may well be held to be applicable to the present dispute as well between the Patna Electric Supply Company as the licensee and the Patna Municipal Corporation as the local authority, under the control of which electric poles have been fixed. This construction of Section 15 appears to be applicable because there is no corresponding provision in the Electricity Act, Section 19 of which is applicable only to a limited situation, and does not cover all disputes between the licensee and the authority resisting the exercise of the necessary power by the licensee. The laying of electric lines or, for the matter of that, the telegraph lines, is a matter of grave importance for the life of the community, and any local authority, if it chooses to obstruct laying of such electric supply-lines or telegraph wires, it would be a matter of grave concern to the community at large. Such a matter, therefore, can be determined more effectively by an authority appointed by the Central Government to decide the dispute by outside agency, including even the law Court. The correct procedure, therefore, to adopt in the present case appears to be to hold that no writ can be issued by this Court, quashing the order of the Patna Municipal Corporation, which will end the dispute between the latter and the petitioner, Patna Electric Supply Company. 9. The application, in these circumstances, must fail, and the petitioner may be directed to resort to the provisions of Section 15 of the Telegraph Act, and seek a decision on the subject-matter of the dispute by such officer as the Central Government may appoint and the party anxious to have a settlement of the dispute may seek the appropriate remedy by moving the Central Government for appointment of such officer or to have it determined by an officer generally or specially empowered in this behalf. In that view of the matter, it is not necessary even to refer to some of the decisions to which our attention was invited in the course of the argument by learned Counsel for the parties. 10. The application is, accordingly, dismissed. B.D. Singh, J.
11. I agree.