Madras High Court
T.Bhuvaneswari vs The District Collector Cum District ... on 29 November, 2013
Author: S. Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.11.2013
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
W.P.No.18548 of 2013
and M.P.Nos.1 and 2 of 2013
T.Bhuvaneswari .. Petitioner
Versus
1. The District Collector cum District Magistrate,
Erode District. Erode.
2. The Deputy General Manager,
Power Grid Corporation of India Ltd.,
K.R.Thoppu, Konakkapadi (PO),
Karukalwadi Village, Tharamangalam (Via),
Omalur Taluk, Salem District, Salem.
3. The Chief Engineer,
Power Grid Corporation of India Ltd.
765 KV DC Line, 17/4, Vivekanandar Street,
Ghandi Nagar, Naciyanoor Road, Erode. .. Respondents
Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, seeking for a writ of certiorarified mandamus, calling for the records relating to the 1st respondent proceeding in Na.Ka.No.354/2013/k4 dated 13.06.2013 and quash the same and forbearing the respondents 2 and 3 from in any manner erecting or installing, High Tension Electricity Line 765 Kilo Volt DC Line, above the petitioner's lands in Survey Nos.275/4, 278/3, 278/8 and 278/9, Solakalipalayam, Chenna Sumuthram Village, Kodumudi Taluk, Erode District.
For Petitioner : Mr.R.Gandhi, Sr. Counsel
for M/s.V.S.Sivasundaram
For Respondents : Mr.Jayesh B Dolia
O R D E R
Mr.R.Gandhi, Learned Senior Counsel for the petitioner submitted that the Petitioner is the owner of lands in Survey Nos.275/4, 278/3, 278/8 and 278/9, measuring an extent of 2.08 acres. She has purchased the property under two sale deeds, dated 23.01.1982 and 20.06.1988, bearing Regn.Nos.41/1982 and 308/1988, respectively, on the file of the Sub Registrar, Kodumudi. The lands are used for cultivation, and they abut Karur to Erode State Highways. She has three sons and one daughter. Therefore, she has decided to construct residential houses for them. Her elder son is engaged in cultivation of 1.60 acres. There are 150 coconut trees. He submitted that the remaining 40 cents have been earmarked to construct a dwelling house for her sons.
2. Learned Senior Counsel for the petitioner further submitted that on 20.09.2012, officials of the 2nd respondent, inspected her lands, without any intimation. Subsequently, she came to know that the original schedule of transmission lines were not passing through her lands. According to him, due to the objections raised by adjacent landowners, the Deputy General Manager, Power Grid Corporation of India Ltd., K.R.Thoppu, Konakkapadi (PO), Karukalwadi Village, Tharamangalam (Via), Omalur Taluk, Salem District, Salem, 2nd respondent herein, has changed the alignment. The present proposal of erecting the tower, and passage of HT Electricity Line over the lands owned by the petitioner, would cause serious hardship.
3. According to the Learned Senior Counsel, the total width of the petitioner's land is 184 feet, and the proposed HT Electricity Line would pass through the middle of the land, by which, 70% of the land utility would be lost. Whereas, if the lines are drawn 80 ft., away, on the Eastern side, the damage would be less. It is also the contention of the Learned Senior Counsel, by the proposed laying of HT Electricity Lines, the entire market value of the land would be diminished.
4. He further submitted that the petitioner sent a representation, dated 24.09.2012, to the Deputy General Manager and Chief Engineer, Power Grid Corporation of India Ltd., the respondents 2 and 3, respectively to consider shifting of HT Electricity Lines on the eastern side of the petitioner's land. The representations remained unanswered. Therefore, the petitioner was constrained to send another representation to the District Collector-cum-District Magistrate, Erode, the 1st respondent.
5. Learned Senior Counsel further submitted that without waiting for the orders from the District Collector cum District Magistrate, the respondents 2 and 3, have proceeded with the work. Hence, she was constrained to file W.P.No.28337 of 2012, for a mandamus, forbearing the respondents therein, from in any manner erecting or drawing High Tension Electricity Line, 765 Kilo Volt DC Line, over the petitioner's lands in Survey Nos.275/4, 278/3, 278/8 and 278/9, Solakalipalayam, Chenna Sumuthram Village, Kodumudi Taluk, Erode District.
6. By order dated 18.10.2012, W.P.No.28337 of 2012, was disposed of, with a direction to the respondents 2 and 3 therein, to refer the matter to the District Collector cum District Magistrate, the 1st respondent therein, to consider the objections of the petitioner and to pass appropriate orders. Pursuant to the same, the District Collector, sent a notice directing the petitioner to appear and in response to the same, the petitioner submitted her detailed written objection and written arguments on 25.02.2013 and 11.03.2013, respectively.
7. Learned Senior Counsel further submitted that without considering her objections in proper perspective, the District CollectorcumDistrict Magistrate, the 1st respondent, vide impugned proceedings in Na.Ka.No.354/2013/k4, dated 13.06.2013, has rejected her request. In the abovesaid circumstances, the petitioner is constrained to prefer this writ petition, for a Certiorarified Mandamus, to quash the proceedings of the 1st respondent made in Na.Ka.No.354/2013/k4, dated 13.06.2013 and to forbear the respondents 2 and 3, from in any manner, erecting or installing, High Tension Electricity Line 765 Kilo Volt DC Line, over her lands, in Survey Nos.275/4, 278/3, 278/8 and 278/9, Solakalipalayam, Chenna Sumuthram Village, Kodumudi Taluk, Erode District. In support of the above submissions, Learned Senior Counsel invited the attention of this Court to the documents enclosed in the typed set of papers.
8. The Chief Engineer, Power Grid Corporation of India Ltd., has filed a detailed counter affidavit, wherein, he has contended that Power Grid Corporation of India Ltd., is a Government of India Enterprise & Central Transmission Utility. It is a Corporation of National Importance, incorporated as a "Government Company", under the provisions of the Companies Act, 1956, by Government of India, with a view to develop an efficient power Transmission System Network, throughout the country and to establish the National Power Grid, in the Country. The Corporation is a Deemed Transmission Licensee in the capacity of Central Transmission Utility, as envisaged under Sections 38, 85 and 40 of the Electricity Act, 2003.
9. The 3rd respondent has further submitted that the Government of India, in exercise of powers conferred by sub-Section (1) of Section 38 of the Electricity Act, 2003 (36 of 2003), has notified the respondent-Corporation as the 'Central Transmission Utility', vide Notification, dated 27th November, 2003, published vide Gazette of India No.1084, dated 4th December, 2003. As per Section 14 of the Electricity Act, 2003, 'Central Transmission Utility' shall be deemed to be a 'Transmission Licensee' under the Act. As per Section 164 of the Electricity Act, 2003, the Appropriate Government, may by order in writing, for the placing of electric lines or electrical plant for the transmission of electricity, confer upon the 'Licensee' any of the powers which the Telegraph Authority possesses under the Indian Telegraph Act, 1885.
10. The 3rd respondent has further submitted that the Government of India, in exercise of powers conferred by Section 164 of the Electricity Act, 2003, has passed an order, dated 24.12.2003, vide Gazette of India No.1148, authorising the respondent-Corporation, to exercise all the powers vested in the Telegraph Authority, under Part III of the Indian Telegraph Act, 1885, in respect of Electrical Lines and Electrical Plants established or maintained or to be so established or maintained for Transmission of Electricity or for the purpose of Telephonic or Telegraphic communication, necessary for proper co-ordination of the works.
11. The 3rd respondent has further submitted that Part III of the Indian Telegraph Act, 1885, relates to power to place Telegraph Lines and Posts. Under Section 10 thereof, the telegraph authority may, from time to time, place and maintain telegraph lines under, over, along or across, and posts in or upon, any immovable property, provided that 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. Section 11 empowers the telegraph authority, at any time, for the purpose of examining, repairing, altering or removing any telegraph line or post, to enter on the property under, over, along, across, in or upon which the line or post has been placed. The statutory provisions, referred to supra, clearly empower the respondent Corporation, to place and maintain Transmission Lines under, over, along or across and Posts/Towers in or upon any immovable property. For the said purpose, the Corporation need not acquire any right other than that of user only in the property under, over, along or across, in or upon which the respondent Corporation places Transmission Lines or Posts/Towers.
12. The 3rd respondent has further submitted that the subject matter of the present Writ Petition is 765 KV Power Transmission line from Tuticorin Pooling Station (Kovilpatti) to Salem Pooling Station (Dharmapuri), as part of transmission system associated with LTOA generation projects, in Tuticorin area, which this respondent Corporation has been entrusted with, under approval of Government of India, vide No.11/4/2007-PG dated 23.06.2010. The anticipated length of the Transmission Line is about 367 KMs with 1000 Towers. It is submitted that route of the transmission line and that of tower positions were finalized on the basis of techno economical consideration. Pursuant to the approval accorded by the Ministry of Power, Government of India, the work has commenced and as on the date of filing of the counter affidavit, foundations numbering 850 had already been completed. Erection of towers numbering 125 had also been completed.
13. The 3rd respondent has further submitted that the transmission line passes through the petitioner's property, connection Location Nos.AMK 9/0 and AMK 10/0. Foundation work in respect of Location No.AMK 10/0 was completed, six months ago. Foundation work in respect of Location No.AMK 9/0 is in progress. The cost of the project/scheme is estimated at Rs.1,940.00 Crores and it has been envisaged, to cater to the power requirements of all southern states and Tamil Nadu, in particular, and scheduled to be commissioned by February 2014.
14. It is further submitted that 33.5 meters on either side of the alignment line, between two towers (along the route), is the electrical safety zone, wherein, trees beyond a particular height and permanent structures, beyond safety clearance are prohibited. In case of interference or interruption of trees to the conveyance or transmission of electricity or the accessibility of any works, they are required to be cut and removed. It is submitted that route of the transmission line, as well as tower positions have been finalized, purely, on the merits of techno-economic consideration.
15. It is further submitted that on 24.09.2012, the Petitioner's husband addressed a letter to the Corporation to erect the transmission line, without affecting the Petitioner's land. On 08.10.2012, the Petitioner addressed a letter to District Collector-cum-District Magistrate, Erode District, 1st respondent herein, objecting to erection of HT lines, over her land and requested for taking the same, to the eastern side of her land, leaving 140 to 150 feet width approximately.
16. The petitioner has filed W.P.No.28337 of 2012, for a Writ of Mandamus forbearing the Corporation from erecting of installing High Tension electricity line over her properties. This Court, by an order, dated 18.10.2012, has directed the Corporation to refer the matter to the 1st respondent herein, for consideration of the objections of the Petitioner, within a period of two weeks, from the date of receipt of copy of the order and the 1st respondent was directed to issue notices to the parties concerned, hear them and to conduct an enquiry and pass appropriate orders, on merits, particularly, considering Section 16 of the Indian Telegraph Act, 1885, within a period of four weeks, thereafter.
17. It is further submitted that pursuant to the order passed by this Court, on 08.01.2013, the Chief Engineer, Power Grid Corporation of India, Erode, 3rd respondent, addressed a letter to the 1st respondent herein, seeking of right of way, for erection of HT line, over the property of the Petitioner. On 01.03.2013, the 1st respondent inspected the land in question, and conducted an enquiry on 11.03.2013 and that the Petitioner was represented by her Learned Counsel. During the enquiry, the petitioner requested for shifting the HT line from the original alignment by 80 feet towards eastern side of her property, so as to cause minimum damage to her lands.
18. It has been represented on behalf of the Corporation before the 1st Respondent that, if the request of the Petitioner to shift the HT line by 80 feet, has to be acceded to, then the lines will have to pass through inhabited house sites and it would also result in cutting of more number of coconut trees. It was also contended by the Corporation that as per the Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010, an overhead line shall not cross over an existing building, as far as possible. It was also contended by the Corporation that the original alignment has been finalized, on the basis of techno economical consideration. The District Collector-cum-District Magistrate, Erode, 1st Respondent, after taking into consideration the materials placed before him, by impugned order, dated 13.06.2013, granted permission, under Section 16 of the Indian Telegraph Act, 1885, to the Corporation, for laying of HT lines over the Petitioner's property.
19. The 3rd respondent has further submitted that Section 10 of the Indian Telegraph Act, 1885, does not contemplate issuance of any notice, for the purpose of carrying out its works, as empowered. It is further submitted that the request of the petitioner for shifting the HT line from the original alignment by 80 feet was considered by the 1st Respondent, at the time of enquiry and rejected by the 1st Respondent, by a detailed speaking order. While rejecting the request of the Petitioner, the 1st Respondent has also stated that if the HT line has to be shifted by 80 feet, it would affect houses and lot of coconut trees. While considering the case of the petitioner, the 1st Respondent has also referred to the Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010. If the case of the Petitioner has to be accepted, then it would result in maximum damage, being caused to the inhabited houses, in and around the area. It is further submitted that the google map would show that three houses, would be get affected, if the line has to be shifted by 80 feet, towards the eastern side, as requested by the petitioner.
20. The 3rd respondent has further submitted that the alignment of the route was finalized, on the basis of techno economical considerations, the dwelling houses, on either side of the transmission line and other factors, like road crossing, canal and the coconut grooves, in the particular area. The project is envisaged for a public purpose. The 1st respondent has rightly concluded that the provisions of Section 17(3) of the Act will apply only in respect of the existing lines, and that the same will not apply to new lines, as in the case on hand.
21. The 3rd respondent has further submitted that as per Sub-Rule (4) of Rule 3 of the said Rules, "nothing contained in Rule 3 shall affect the powers conferred upon any Licensee under Section 164 of the Act". The Government of India in exercise of powers conferred by Section 164 of The Electricity Act, 2003, has passed an order, dated 24.12.2003, vide Gazette of India No.1148, authorizing the 3rd respondent-Corporation, to exercise all the powers vested in the Telegraph Authority, under part III of The Indian Telegraph Act, 1885, in respect of Electrical Lines and Electrical plants, established or maintained, or to be so established or maintained for the Transmission of Electricity or for the purpose of Telephonic or Telegraphic communication, necessary for proper co-ordination of works. As per the said provision of law, the Corporation is empowered to place and maintain power transmission lines under, over, along or across, and posts/towers in or upon, any immovable property. It does not stipulate issuance of personal notice or prior consent from the private land owners.
22. The 3rd respondent has further submitted that the 1st respondent has described the property as a vacant land, since there is no permanent building in the property. Only in that context, the 1st respondent has stated that the land is vacant. With regard to coconut trees, the Corporation has submitted that the petitioner would be paid compensation for the same, as they have to be cut, for the purpose of laying of transmission line. In so far as turmeric plants are concerned, the Corporation has submitted that the Petitioner can continue to grow the same, and damage, if any to the same, during the execution/construction would be suitably compensated. Reiterating the above, Mr.Jayesh B.Dolia, learned counsel appearing for the 3rd respondent made submissions and prayed to dismiss the writ petition.
23. Denying the averments contained in the counter affidavit filed by the respondents 2 and 3 and based on the averments in the reply affidavit, Mr.R.Gandhi, Learned Senior Counsel for the petitioner submitted that the market value of the said land is more than Rs.3 Crores. Since the lands are abutting Erode-Karur Highways Road, the value of the subject land, is on the rise. Drawing High Tension (HT) transmission line in the middle of the land would affect the petitioner's land. The land will be unfit for human habitation/dwelling. Income from the lands would be reduced. He further submitted that the third respondent herein, without following the law, rules and regulations, has deviated the route, in order to fulfill the interest of the petitioner's adjacent land owner, by deviating the original alignment in a zig zag manner, which is evident from the picture taken from the google map. Only for extraneous consideration, deviation has been made, to avoid the value of adjacent land, being affected. He further submitted that the power and license conferred by the Central Government, as per the documents relied on by the respondent Corporation have been misused by the Power Grid Corporation. They have misused the words, Techno-economic consideration, as a shield to safeguard the illegality, for deviating the original alignment and the specific allegation raised in the affidavit filed in support of the writ petition, has not been properly denied or explained by the third respondent.
24. Learned Senior Counsel further submitted that the foundation work in respect of AMK 10/0 was completed six months ago. But it is evident that, after filing of the earlier Writ Petition before this Court, after receiving the objection from the petitioner and without getting the permission from the District Collector, Erode, 1st respondent herein, respondents 2 and 3, in a hurried manner, have completed the foundation, insofar as location AMK 9/0 is concerned. Learned Senior Counsel further submitted that the petitioner has requested the authorities to shift the transmission lines from the proposed alignment to 80 feet, on the eastern side, along the boundary of the property and that she has not asked for shifting of the lines, affecting the interest of any third party. According to him, if shifting is done, necessity to cut more number of coconut trees will not arise. He further submitted that there is no necessity to invoke the Central Electricity Authority (Measures relating to safety and electric supply Regulation) 2010. There is no existing building, in and around the petitioner's land.
25. According to him, Regulation 2010 is not at all applicable to the case on hand and he has denied the contention of the respondents that there are three houses, located adjacent to the petitioner's land and that the same would be affected, if the line has to be shifted, 80 feet on the eastern side, as requested by the petitioner. He further submitted that Section 17(3) of Indian Telegraph act deals with the power of the District Magistrate, when any objection is raised by the land owner, for removal (or) alteration of telegraphic line or post on property, other than the property of the local authority.
26. It is his further contention that nowhere in Section 17(3) of the Indian Telegraph Act, it is stated that the said Section would apply only to the existing line and not applicable to new lines. He further submitted that the 1st respondent has not considered the valid objections raised by the petitioner for shifting the line 80 feet, on the eastern side of the petitioner's land and not given proper reasons, for rejecting the petitioner's claim. He further submitted that Section 10(d) of the Telegraph Act, specifically emphasizes that while exercising the power conferred by the authorities, they shall do little damage, by laying line or post, in a particular property and it does not empower them to alter the entire route alignment. For the abovesaid reasons, he prayed to set aside the impugned orders.
Heard the learned counsel for the parties and perused the materials available on record.
27. The impugned order of the District Collector-cum-District Magistrate, Erode, dated 13.06.2013, reads as follows:
<nuhL khtl;l Ml;rpj;jiytu; mtu;fspd; bray;Kiwfs;.
Kd;dpiy Kidtu; nt/f/rz;Kfk;. ,/M/g/ e/f/354-2013-nf4 ehs; 13/06/2013 bghUs;: EiHt[ mDkjp ? <nuhL khtl;lk; ?
<nuhL tl;lk; ? bfhLko cs;tl;lk; ?
brd;drKj;jpuk; fpuhkk; ? g[y vz;/275-4. 278-3. 8 kw;Wk; 9 g[y';fs;
tHpahf cau;kpd; mGj;j kpd;ghij mikj;jy; ? Ml;nrgpj;J jpUkjp/ o/g[tnd!;thp vd;gtu; brd;id cau;ePjpkd;wj;jpy; hpl; kD jhf;fy;
bra;jJ ? khtl;l Ml;rpj;jiytu;
tprhuiz bra;J cj;jut[ gpwg;gpj;jy;
? bjhlu;ghf ghu;it: 1/brd;id cau;ePjpkd;w ePjpg;nguhiz kD vz;/28337-2012 jPu;g;g[iu ehs;
18/10/2012/ 2/jp-s;/ gtu; fphpl; fhu;g;gnuc&d; Mg;
,e;jpah ypl;/. foj ehs; 08/01/2013 3/khtl;l Ml;rpj;jiytu;
g[yj;jzpf;if ehs; 01/03/2013 4/ khtl;l Ml;rpj;jiytu; mtu;fspd;
tprhuiz ehs; 11/03/2013 ?????
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d;go kpd;ghij mikf;Fk;nghJ epy chpikahsu;fSf;F Fiwthf ,Hg;gPL Vw;gLk; tpjj;jpy; mikf;fntz;Lk; vd bjhptpf;fg;gl;Ls;sJ/ Mdhy; gtu;fpnul; fhu;g;nuc&d; ghpt[ 10(o)?d;go epy chpikahsUf;F Fiwthd ,Gg;gPL Vw;gLk; tifapy; bray;glhky; vdJ g{kpapy; kpd; ghijia tist[ bespthf bfhz;L brd;W mjpf ,Hg;gPL Vw;gLj;jpa[s;sdu;/ vdnt ,e;jp je;jpr;rl;lk; gphpt[ 17(2)?d;go kpd;ghijia khw;wp mikf;f ghprPyiz bra;J gphpt[ 17(3)?d;go khtl;l Ml;rpj;jiytu; Miz tH';FkhW bjhptpj;Js;shu;/ ,J bjhlu;ghd tprhuizapd; nghJ gtu;fphpl; fhu;g;gnurd; Kjd;ik nkyhsu; nehy; M$uhfp Ml;nrgizf;F fPH;f;fz;lthW gjpy; mspj;Js;shu;/ kpd;ghij mikg;gJ bjhlu;ghf gphpt[ 10?19gp ,e;jpa je;jp rl;lk; 1885 kw;Wk; gphpt[ 164 ,e;jpad; vyf;hprpl;o rl;lk; 2003?d;go muRbtspaPL S.O.1463(E) ehs; 24/12/2003?d;go gpuRhpf;fg;gl;lLs;sJ/ J}j;Jf;Fo Kjy; jUkg[hp tiu 765 kpd;ghij mikg;gJ bjhu;ghf kj;jpa kpd;rhu Jiw fojk; 11-4-2007-PG ehs; 23/06/2010?d;go mDkjpaspj;Js;sJ/ Ml;nrgizjhuu; bjhptpj;Js;sthW kpd;ghijia 80 mo fpHf;F g[wkhf khw;wp mikf;Fk; gl;rj;jpy; m';F jw;nghJ epiyapy; cs;s tPLfspd; nkyhf kpd;ghij mika[k;epiy Vw;gLfpwJ/ nkYk; epiwa bjd;id ku';fis btl;lntz;oa fl;lhak; Vw;gLfpwJ/ ,jdhy; ,d;Dk; gy gpur;ridfs; Vw;gl tha;g;g[s;sJ/ epiwa egu;fs; Ml;nrgid bjhptpf;Fk; tha;g;g[s;sJ/ ,e;jpa kpd; tpepnahfr;rl;lk; kw;Wk; xG';FKiw rl;lk; 2010 gphpt[ 60(1)?d;go Vw;fdnt fl;lg;gl;oUf;Fk; tPl;od;kPJ kpd;ghij jlk; bry;fpd;w tifapy; jpl;lk; mikf;f ,ayhJ/ Ml;nrgizjhuu; ,e;jpa je;jpr; rl;lk; gphpt[ 17?y; 2?d;go kpd;ghijia 80 mo fpHg[wkhf khw;wp mikf;f ghprPyid bra;J gphpt[ 17(3) ?d;go khtl;l Ml;rpj;jiytu; Miz tH';Fk;go nfl;Lf;bfhz;Ls;shu;/ ,e;ja je;jpr;rl;lk; gphpt[ 17 vd;gJ Vw;fdnt kpd;ghij mikf;fg;gl;oUg;gpd; mjid ghprPyiz bra;J khw;wp mikf;f cj;jutpLtjw;fhd rl;lkhFk;/ ,e;neu;tpy; kpd;ghij VJk; mikf;fg;gltpy;iy/ vdnt ,g;gphptpy; Ml;nrgizjhuu; nfhhpf;if Vw;f ,ayhJ/ jw;nghJ mikf;fg;gl cs;s kpd;ghij Techo Economical Considerations?d; mog;gilapy; Kgj;jpl;lkhdJ epy chpikahsUf;F Fiwtha ,Hg;gPL Vw;gLk; gl;rj;jpy; ru;ntbra;J jpl;lk; mikg;g[ Kot[bra;ag;gl;lJ/ ,e;neu;tpy; Ml;nrgizjhuu; xUtuJ nfhhpf;ifapd;go kpd;ghijia khw;wp mikf;f ,ayhJ/ mt;thW fpHg[wk; 80 mo khw;wp mikj;jhy; kDjhuUf;F Vw;gLk; ,Hg;gPl;iltpl mjpf ,Hg;gPL muRf;F Vw;gLk; epiy cs;sJ/ nkYk; kpd;ghij nfhg[uk; AMK 10/10 (152/0) mLj;jjhf mika[k; AMK 9-0 kpd; nfhg[uj;jpw;F Vw;whw;nghy; mikf;fg;gl;Ls;sJ/ jw;nghJ mjid khw;wpdhy; AMK10-0 nfhg[uk; ,of;fg;gl ntz;Lk;/ mt;thW ,of;fg;gl;L kpd;ghijia khw;wp mikj;jhy; muRf;F nkYk; mjpf ,Hg;g[ Vw;gLk;/ ,jdhy; Vw;fdnt ru;nt bra;J mikf;fg;gl;l ghijia rpwpJk; khw;wp mikf;f tHptifna ,y;iy/ kDjhuUf;F Vw;gLk; ,Hg;gpw;F ,Hg;gPL tH';f ,e;jpa je;jpr;rl;lk; gphpt[ 10(o) ?d;go nghJkhd tpjpKiwfs; cs;sd vdt[k;. vdnt jw;nghJ cs;s jpl;lj;jpd;gona cau;kpd; mGj;j ghij mikf;f cj;jut[ tH';FkhWk; nfl;Lf;bfhz;lhu;/ Ml;nrgizjhuhpd; nfhhpf;if gtu;fphpl; fhu;gnuc&d; Mg; ,e;jpah ypl;/. Kjd;ik nkyhsu; tpsf;fk; kw;Wk; khtl;l Ml;rpj;jiythpd; g[yj;jpzf;if kw;Wk; tprhuizapd; mog;gilapy; fPH;f;fz;l tpgu';fs; mwpatUfpwJ/ 1 jw;nghJ kpd;ghij mikf;f Ml;nrgiz bra;a[k; jpUkjp/o/g[tnd!;thp vd;gtuJ g{kp fhypaplkhf cs;sJ/ 2/ Ml;nrgizjhuu; bjhptpj;Js;sthW kpd;ghij khw;wp mikf;Fk; gl;rj;jpy; tPLfs;. epiwa bjd;id ku';fs; Mfpait ghjpf;Fk; epiy cs;sjhy; epiwa egu;fs; Ml;nrgiz bra;a tha;g;g[ cs;sJ/ 3/ kpd;ghijia khw;wp mikf;Fk; gl;rj;jpy; ghy tpiuak;. BghUs; tpiuak; Vw;gl;L bghJ eyd; ghjpf;Fk; epiy Vw;gLk;/ 4/ kj;jpa kpd;rhu ghJfhg;g[ kw;Wk; tH';Fjy; xG';FKiw rl;lk; 2010?d;go Vw;fdnt fl;lg;gl;oUf;Fk; tPL kw;Wk; epiyahd fl;Lkhd';fSf;F nkyhf cau;kpd;dGj;j ghij bfhz;L bry;y rl;lj;jpy; tHptif ,y;iy/ 5/ ,e;jpa je;jpr;rl;lk; gphpt[ 10(o) ?d;go kpd;ghij mikf;Fk;nghJ epy chpikahsu;fSf;F Fiwthf ,Hg;gPL Vw;gK; tpjj;jpy; mikf;fntz;Lk;/ vdnt ,itfspd; mog;gilapy; bghJ eyd; fUjpa[k; epy chpikahsuJ Ml;nrgidapid epuhfhpj;J <nuhL khtl;lk;. <nuhL tl;lk;. bfhLko cs;tl;lk;. brd;drKj;jpuk; fpuhkk; g[y vz;/275-4. 278-3. 8 kw;Wk; 9 g[y';fs; tHpahf kpd;ghij mikj;jpl ,e;jpa je;jp rl;lk; 1885 gphpt[ 16?d;go gtu;fphpl; fhu;g;gnuc&d; Mg; ,e;jpah ypl;/. epWtdj;jpw;F mDkjp tH';fp cj;jutplg;gLfpwJ/ Xk;/-? nt/f/rz;Kfk;.
khtl;l Ml;rpj;jiytu;
<nuhL/
-cz;ik efy; - cj;jut[g;go-
khtl;l Ml;rpaUf;fhf Translated version of the above contents are as follows:
Proceedings of the District Collector, Erode District Present: Dr.V.K.Shanmugam, I.A.S. R.C.354/2013/K4 Dated: 13.06.2013
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Sub: Laying of High Tension Electrical Line through lands in Survey No.275/4, 278/3, 8 and 9 in Chennasamudram Village - Kodumudi Sub-Taluk, Erode Taluk, Erode District - one Tmt.T.Bhuvaneshwari, filed a Writ Petition before the Chennai High Court stating for objections District Collector enquired and issued orders - regarding.
Ref: 1. Order dated 18.10.2012 in the Writ Petition No.28337/2012 on the file of High Court, Madras. 2. Letter dated 08.01.2013 of M/s.Power Grid Corporation of India Ltd.
3. Spot Inspection, of the District Collector on 01.03.2013.
4. Enquiry of the District Collector on 11.03.2013.
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ORDERS :-
One Tmt.T.Bhuvaneshwari has filed a W.P.No.28337/2012 in the High Court, Madras objecting to lay an Electric Line passing through the land in Survey Nos.275/4, 278/3, 8 and 9 in Chennasamudram Village, Kodumudi Sub-Taluk, Erode Taluk, Erode District and orders were passed under reference 1st cited. Accordingly, the Chief Manager of Power Grid Corporation of India has requested in his letter under reference 2nd cited to inspect the aforesaid land and to set right the objections.
The District Collector enquired and conducted the Spot Inspection in the said place. One Tmt.Bhuvaneshwari, filed W.P.No.28337/2012 in the High Court, Madras and objected to the laying of High Tension Electric Line through the lands in Survey No.275/4, 278/3, 8 and 9 at Chennasamudram Village, Erode Taluk and orders were passed on 18.10.2012, in this case. In that Order, it was directed to enquire and decide U/s.16 of Indian Telegraph Act and to pass orders. Based on that, enquiry was conducted. In the enquiry, one Tmt.T.Bhuvaneshwari, the objector informed as stated below, in her Affidavit which was submitted to the District Collector through her advocate on 11.03.2013.
She has stated that she owned a land of 2.02 acres in Survey No.275/4, 278/3, 8 and 9 at Chennasamudram Village, Kodumudi Sub-Taluk, Erode Taluk, Erode District and that high tension electrical line has been laying in the middle of her land. They cultivate turmeric in the said land of 40 cents. The said land has the facility of being irrigated through Kalingarayan canal. The said land is situated in the State High Road from Erode to Karur. She has proposed to construct a residential building in the said land for her sons. In this situation, the Manager, Power Grid Corporation of India has proposed to lay a High Tension Electric Line in the middle of her lands. If such Electric Line is laid, she could not construct a house in the said land. Further, if the Power Grid Corporation of India, lays a High Tension Electric Line without curves and bends but straightly on the margin of the eastern boundary by 80 feet on the alternate way, the High Tension Electrical Line, would be on the eastern boundary of her land. Moreover, on the road side, there would be place 140 to 150 feet, available on one side. If it is set up like that, she could utilise a portion of the land. In that place, she would be able to construct houses for her sons. Further, as per section 10(D) of Telegraph Act, the Power Grid Corporation did not act so that minimum loss would be caused to the owner of the land but laid the electrical line with bends and curves over her land, thereby, causing much loss. Therefore, the District Collector has stated that after examination as per section 17(2) of Indian Telegraph Act and directed to pass order as per section 17(3). The Chief Manager of Power Grid Corporation appeared in person during the enquiry regarding this and replied to the objection, which is as follows :-
The Government publication in S.O.1463(E) dated 24.12.2003 has been published as per section 10-19B, Indian Telegraph Act 1885 and section 164 of Indian Electricity Act 2003, regarding the laying of electrical line.
The Central Electricity Department in its letter dated 23.06.2010 has granted approval for laying 765 KV, electrical line from Tuticorin to Dharmapuri.
As has been informed by the objector; in the event of changing the electricity line by 80 feet on the eastern side; there is a situation in which the electricity line would be crossing over the houses, which are there presently. Further, there arises a compulsion for felling down a large number of coconut trees. Consequently, there is a chance of several issues cropping up leading to many individuals raising objections in this regard. As per section 60(1) of the Indian Electricity Distribution Act and Regulation Act, 2010; scheme could not be formulated in such a manner that the electricity line crosses over the houses already constructed. The objector has requested the District Collector to examine the change of electricity line by 80 feet on the eastern side as per section 17(2) of the Indian Telegraph Act and issue order u/s 17(3) of the said act. Section 17 of the Indian Telegraph Act contemplates that if electricity line has already been laid it should be examined and orders shall be passed for changing it. In this instance, there is no electricity line laid. Hence, under this section, the demand of the objector could not be accepted.
The present electricity line, which has been laid on the basis of the Techno Economical considerations, is a comprehensive scheme. It was decided to survey and implement the said scheme, so that the owner of the land will incur minimum loss. In this instance, as per the demand put forth by an objector; the electricity line could not be changed and laid. If it is laid by altering 80 feet on the eastern side the loss incurred by the Government will be more than the loss incurred by the petitioner. Further, the electrical tower AMK 10/0 (152/0) has been formed, suitable to the electrical tower AMK 9/0, next to it. If it is altered presently, the AMK 10/0 tower would have to be demolished. If it is demolished like that, the Government would incur further an excessive loss. Therefore, there is not even any possibility for altering the path (electrical line) which has been already surveyed and laid. There are sufficient rules and regulations as per section 10(D) of Indian Telegraph Act to give compensation to the petitioner for the loss incurred by him.
On the basis of the demand made by the objector; the explanation given by the Principal Manager of Power Grid Corporation of India Ltd., the spot inspection of the District Collector enquiry; the following details have come to be known.
1. The land belonging to Tmt.T.Bhuvaneshwari, who has presently raised objection to set up the electricity line; is a vacant land.
2. In the event of the objector seeking for altering the electricity line route; since the houses, a lot of coconut trees would be adversely affected; there is possibility of many individuals who would raise objection.
3. In case the electricity line route is changed, there would be waste of time and money; as a result of which the Public Welfare would be affected.
4. As per the Central Electricity Safety and Supply Regulation Act, 2010; there is no provision in the Act to take the high voltage electricity line, over the already constructed houses and the permanent structures.
5. As per section 10(d) of the Indian Telegraph Act; while putting up the electricity line, it should be done in such a manner that the owners of the land will incur lesser loss.
Therefore, on the basis of all these factors and considering the Public Welfare; the objection raised by the land owner is rejected. It is ordered that permission is granted to the Power Grid Corporation of India Company as per section 16 of Indian Telegraph Act 1885 to lay the electricity line over the land in Survey No.275/4, 278/3, 8, 9 Chennasamudram Village, Kodumudi Sub-Taluk, Erode Taluk, Erode District.
Sd/- V.K.Shanmugam, District Collector, Erode
Sd/- For the District Collector.
To
1. Tmt.D.Bhuvaneshwari,
W/o.Thandavan,
E-23, Anna Nagar,
Chennai - 1.
2. Principal Manager,
M/s.Power Grid Corporation of India Ltd.,
17/4-G, Vivekanandar Street,
Nasiyanur Road,
Erode.
28. Before adverting to the facts of this case, let me have a cursory look at the few provisions of the Electricity Act, 2003.
(20) "electric line", means any line which is used for carrying electricity for any purpose and includes--
(a) any support for any such line, that is to say, any structure, tower, pole or other thing in, on, by or from which any such line is, or may be, supported, carried or suspended; and
(b) any apparatus connected to any such line for the purpose of carrying electricity;
(22) "electrical plant" means any plant, equipment, apparatus or appliance or any part thereof used for, or connected with, the generation, transmission, distribution or supply of electricity but does not include--
(a) an electric line; or
(b) a meter used for ascertaining the quantity of electricity supplied to any premises; or
(c) an electrical equipment, apparatus or appliance under the control of a consumer;
(40) "line", which means any wire, cable, tube, pipe, insulator, conductor or other similar thing (including its casing or coating) which is designed or adapted for use in carrying electricity and includes any line which surrounds or supports, or is surrounded or supported by or is installed in close proximity to, or is supported, carried or suspended in association with, any such line;
(48) "overhead line" means an electric line which is placed above the ground and in the open air but does not include live rails of a traction system;
(61) "service-line" means any electric supply-line through which electricity is, or is intended to be, supplied--
(a) to a single consumer either from a distributing main or immediately from the Distribution Licensee's premises; or
(b) from a distributing main to a group of consumers on the same premises or on contiguous premises supplied from the same point of the distributing main;
(72) "transmission lines" means all high pressure cables and overhead lines (not being an essential part of the distribution system of a licensee) transmitting electricity from a generating station to another generating station or a sub-station, together with any step-up and step-down transformers, switch-gear and other works necessary to and used for the control of such cables or overhead lines, and such buildings or part thereof as may be required to accommodate such transformers, switch-gear and other works.
29. Section 68 of the Electricity Act, 2003, deals with overhead lines and the said Section is extracted hereunder:
68.Overhead lines:- (1) An overhead line shall, with prior approval of the Appropriate Government, be installed or kept installed above ground in accordance with the provisions of sub-section (2).
(2) The provisions contained in sub-section (1) shall not apply--
(a) in relation to an electric line which has a nominal voltage not exceeding 11 kilovolts and is used or intended to be used for supplying to a single consumer;
(b) in relation to so much of an electric line as is or will be within premises in the occupation or control of the person responsible for its installation; or
(c) in such other cases, as may be prescribed.
(3) The Appropriate Government shall, while granting approval under sub- section (1), impose such conditions (including conditions as to the ownership and operation of the line) as appear to it to be necessary.
(4) The Appropriate Government may vary or revoke the approval at any time after the end of such period as may be stipulated in the approval granted by it.
(5) Where any tree standing or lying near an overhead line or where any structure or other object which has been placed or has fallen near an overhead line subsequent to the placing of such line, interrupts or interferes with, or is likely to interrupt or interfere with, the placing of such line, interrupts or interferes with, or is likely to interrupt or interfere with, the conveyance or transmission of electricity or the accessibility of any works, an Executive Magistrate or authority specified by the Appropriate Government may, on the application of the licensee, cause the tree, structure or object to be removed or otherwise dealt with as he or it thinks fit.
(6) When disposing of an application under sub-section (5), an Executive Magistrate or authority specified under that sub-section shall, in the case of any tree in existence before the placing of the overhead line, award to the person interested in the tree such compensation as he thinks reasonable, and such person may recover the same from the licensee.
(emphasis supplied)
30. Section 164 of the Electricity Act, 2003 deals with exercise of powers of Telegraph Authority in certain cases, which is extracted hereunder:
The Appropriate Government may, by order in writing, for the placing of electric lines or electrical plant for the transmission of electricity or for the purpose of telephonic or telegraphic communications necessary for the proper coordination of works, confer upon any public officer, licensee or any other person engaged in the business of supplying electricity under this Act, subject to such conditions and restrictions, if any, as the Appropriate Government may think fit to impose and to the provisions of the Indian Telegraph Act, 1885, 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.
31. Sections 173, 174 and 175, deal with Inconsistency in laws, Act to have overriding effect, and provisions of this Act to be in addition to and not in derogation of other laws respectively and the said Sections are extracted hereunder:
173. Inconsistency in laws.--Nothing contained in this Act or any rule or regulation made thereunder or any instrument having effect by virtue of this Act, rule or regulation shall have effect insofar as it is inconsistent with any other provisions of the Consumer Protection Act, 1986 or the Atomic Energy Act, 1962 or the Railways Act, 1989.
174. Act to have overriding effect.--Save as otherwise provided in Section 173, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
175. Provisions of this Act to be in addition to and not in derogation of other laws.--The provisions of this Act are in addition to and not in derogation of any other law for the time being in force.
32. Section 185 of the Electricity Act, 2003 deals with repeal and saving. The said Section reads as follows:
"185. Repeal and saving.
(1) Save as otherwise provided in this Act, the Indian Electricity Act, 1910 (9 of 2010), the Electricity (Supply) Act, 1948 (54 of 1948) and the Electricity Regulatory Commissions Act, 1998 (14 of 1998) are hereby repealed.
(2) Notwithstanding such repeal,
(a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission, authorisation or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act;
(b) the provisions contained in sections 12 to 18 of the Indian Electricity Act, 1910 (9 of 1910), and rules made thereunder shall have effect until the rules under sections 67 to 69 of this Act are made;
(c) the Indian Electricity Rules, 1956 made under section 37 of the Indian Electricity Act, 1910 (9 of 1910) as it stood before such repeal shall continue to be in force till the regulations under section 53 of this Act are made.
(d) all rules made under subsection (1) of section 69 of the Electricity (Supply) Act, 1948 (54 of 1948) shall continue to have effect until such rules are rescinded or modified, as the case may be;
(e) all directives issued, before the commencement of this Act, by a State Government under the enactments specified in the Schedule shall continue to apply for the period for which such directions were issued by the State Government.
(3) The provisions of the enactments specified in the Schedule, not inconsistent with the provisions of this Act, shall apply to the States in which such enactments are applicable.
(4) The Central Government may, as and when considered necessary, by notification, amend the Schedule.
(5) Save as otherwise provided in subsection (2), the mention of particular matters in that section, shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897), with regard to the effect of repeals.
33. Some of the provisions of the Indian Telegraph Act, 1885, are extracted hereunder:
"10. Power for telegraph authority to place and maintain telegraph lines and posts.--
The telegraph authority may, from time to time, place and maintain a telegraph line under, over, along or across, and posts in or upon, any immovable property:
Provided that--
(a) the telegraph authority shall not exercise the powers conferred by this section except for the purposes of a telegraph established or maintained by the Central Government, or to be so established or maintained;
(b) the Central Government shall not acquire any right other than that of user only in the property under, over, along, across, in or upon which the telegraph authority places any telegraph line or post;
(c) except as hereinafter provided, the telegraph authority shall not exercise those powers in respect of any property vested in or under the control or management of any local authority, without the permission of that authority; and
(d) in the exercise of the powers conferred by this section, the telegraph authority shall do as little damage as possible, and, when it has exercised those powers in respect of any property other than that referred to in clause (c); shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers.
11. Power to enter on property in order to repair or remove telegraph lines or posts.--The telegraph authority may, at any time, for the purpose of examining, repairing, altering or removing any telegraph line or post, enter on the property under, over, along, across, in or upon which the line or post has been placed.
14. Power to alter position of gas or water pipes or drains.--The telegraph authority may, for the purpose of exercising the powers conferred upon it by this Act in respect of any property vested in or under the control or management of a local authority, alter the position thereunder of any pipe (not being a main) for the supply of gas or water, or of any drain (not being a main drain):
Provided that--
(a) when the telegraph authority desires to alter the position of any such pipe or drain it shall give reasonable notice of its intention to do so, specifying the time when it will begin to do so, to the local authority, and, when the pipe or drain is not under the control of the local authority, to the person under whose control the pipe or drain is;
(b) a local authority or person receiving notice under clause (a) may send a person to superintended the work, and the telegraph authority shall execute the work to the reasonable satisfaction of the person so sent.
16. Exercise of powers conferred by Section 10, and disputes as to compensation, in case of property other than that of a local authority.-
(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 (45 of 1860).
(3) If any dispute arises concerning the sufficiency of the compensation to be paid under Section 10, clause (d), it shall, on application for the 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, whose 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 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.
17. Removal or alteration of telegraph line or post on property other than that of a local authority.--
(1) When, under the foregoing provisions of this Act, a telegraph line or posts has been placed by the telegraph authority under, over, along, across, in or upon any property, not being property vested in or under the control or management of a local authority, and any person entitled to do so desires to deal with that property in such a manner as to render it necessary or convenient that the telegraph line or post should be removed to another part or thereof or to a higher or lower level or altered in from, he may require the telegraph authority to remove or alter the line or post accordingly:
Provided that, if compensation has been paid under Section 10, clause(d), he shall, when making an requisition, tender to the telegraph authority the amount requisite to defray the expense of the removal or alteration, or half of the amount paid as compensation, whichever may be smaller sum.
(2) If the telegraph authority omits to comply with the requisition, the person making it may apply to the District Magistrate within whose jurisdiction the property is situate to order the removal or alteration.
(3) A District Magistrate receiving an application under sub-section (2) may, in his discretion, reject the same or make an order, absolutely or subject to conditions, for the removal of the telegraph line or post to any other part of the property or to a higher or lower level or for the alteration of its form; and the order so made shall be final.
34. Section 42 of the Electricity (Supply) Act,1948, deals with Powers to Board for placing wires, poles and the same is as follows:
"42. Powers to Board for placing wires, poles, etc. - [(1)] Notwithstanding anything contained in Sections 12 to 16 and 18 and 19 of the Indian Electricity Act,1910 (9 of 1910), but without prejudice to the requirements of Section 17 of that Act "where provision in such behalf is made in a sanctioned scheme, the Board shall have, for the placing of any wires, poles, wall-brackets, stays apparatus and appliance for the transmission and distribution of electricity, or for the transmission of telegraphic or telephonic communications necessary for the proper co-ordination of the works of the Board, all the powers which the telegraph authority possesses under Part III of the Indian Telegraph Act,1885 (13 of 1885) with regard to a telegraph established or maintained by the Government or to be so established or maintained: Provided that where a sanctioned scheme does not make such provision as aforesaid, all the provisions of Sections 12 to 19 of the first mentioned Act shall apply to the works of the Board.
(2) A generating company may, for the placing of wires, poles, wall-brackets, stays apparatus and appliances for the transmission of electricity, or for the transmission of telegraphic or telephonic communications necessary for the proper co-ordination of the works of the generating company, exercise all or any of the powers which the Board may exercise under sub-section (1) and subject to the conditions referred to therein."
35. Section 43 of the Electricity Act, 2003, deals with the duty to supply on request and the said Section reads as follows:
"(1) Save as otherwise provided in tis Act, every distribution licensee, shall, on an application by the owner or occupier of any premises, give supply of electricity to such premises, within one month after receipt of the application requiring such supply :
Provided that where such supply requires extension of distribution mains, or commissioning of new sub-stations, the distribution licensee shall supply the electricity to such premises immediately after such extension or commissioning or within such period as may be specified by the Appropriate Commission.
Provided further that in case of a village or hamlet or area wherein no provision for supply of electricity exists, the Appropriate Commission may extend the said period as it may consider necessary for electrification of such village or hamlet or area.
(2) It shall be the duty of every distribution licensee to provide, if required, electric plant or electric line for giving electric supply to the premises specified in sub-section (1) :
Provided that no person shall be entitled to demand, or to continue to receive, from a licensee a supply of electricity for any premises having a separate supply unless he has agreed with the licensee to pay to him such price as determined by the Appropriate Commission.
(3) If a distribution licensee fails to supply the electricity within the period specified in sub-section (1), he shall be liable to a penalty which may extend to one thousand rupees for each day of default."
36. The scheme of the Indian Telegraph Act, 1885, has been explained in a Full Bench of Kerala High Court in Mammoo vs. State of Kerala, reported in 1979 Kerala Law Times 801 and at paragraph 13, the Full Bench observed thus:
"13. The scheme of the Indian Telegraph Act may now be adverted to Section 10 of the Act, as already indicated, gives the Telegraph authority power to place and maintain telegraph line in or upon any immovable property. The proviso indicates that such power is to be exercised only for telegraph established or maintained by the Central Government or to be so established and maintained, that the Central Government acquires only the right of user, that in the case of local authority the exercise has to be with permission of that authority and that in the exercise of such power as little damage as possible is to be caused. These are in the nature of restrictions in the exercise of the power and do not restrict the discretion to determine the property over which the lines are to pass or posts are to be erected. That discretion is in the telegraph authority. If he is resisted or restricted he seeks permission from the District Magistrate whose adjudication does not cover the question whether line is to be drawn over any specific item of property or whether posts are to 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. (emphasis supplied)
37. In Binapani Basu v. Union of India reported in AIR 1984 Cal. 258, at Paragraph 8, the Calcutta High Court, held as follows:
"Section 10 gives legal sanction for committing trespass which the telegraph authorities would not have been entitled to commit but for such sanction. Such trespass again may result in some damages. But Section 10(d) does not limit the compensation to such damage only. It speaks of any damage sustained by reason of exercise of such powers. Clause (d) of Section 10 clearly indicates that in doing any act within the sanction of Section 10 the telegraph authority must take the caution of causing as little damage as possible. When such an act is done, the authorities shall pay full compensation for any damage sustained by reason of exercise of such powers. Such damage, covers not only the damage for the trespass itself but any damage that may be sustained due to any tortious action on the part of the telegraph authorities while exercising their powers under Section 10. The tortious act is not an independent act; it arises from negligent exercise of powers under Section 10 involving the immovable property in respect of which such power is being exercised."
38. In Maharastra State Electricity Board v. Janardhan Bhausaheb Desai reported in AIR 1988 Bom. 75, a notification was issued empowering the Electricity Board to exercise all the powers under Section 42 of the Electricity Act, 2003. However, the notification did not specifically state that the Board is empowered to enter upon any property for placing wires, erect poles, etc. By a resolution, the Board framed the scheme for established of 110 KV, EHV sub-stations at Shiroli and other places in Kolhapur District. The case of the Board was that for the execution of the said Scheme, the powers of the Telegraph Authority under Section 10 of the Indian Telegraph Act, 1885 was vested in it, as provided under Section 42 of the Act of 1948 and thereby, the Board was empowered to enter upon any land, to erect poles and lay wires, cables, etc., for transmission of electricity. The Board has chartered the route of the said transmission line. During the course of construction of the transmission line, under the aforesaid scheme, some of the land owners objected. As a result of the objection raised, the Board made an application before the concerned District Magistrate, under Section 16 of the Indian Telegraph Act, and that the District Magistrate permitted the Board to proceed further, in exercise of the powers under the Telegraph Act and the Act of 1948. Thereafter, the land owners filed a suit for a perpetual injunction and mandatory injunction. The said suit, after trial, has been decreed, as aforesaid and that the appeal preferred by the Board, has also been dismissed by the first appellate Court, giving rise to second appeal, before the Bombay High Court. The land owners also challenged the order of the District Magistrate, passed under Section 16 of the Telegraph Act in Writ Petition No.5302 of 1992 and that a Hon'ble Division Bench of the Bombay High Court, disposed of the writ petition, by observing that the impugned order of the District Magistrate would merge in the final order to be passed in the second appeal, arising out of the suit filed by the land owners against the Board. After considering the statement of objects and reasons of the Indian Electricity Act, 1948 (as amended), and the relevant provisions, viz., Sections 28 and 42 of the said Act, at Paragraph 11, the Bombay High Court, at Paragraph 11, held as follows:
"11. The very fact that the notification states that for execution of this scheme the Board shall exercise all the powers of Telegraph Authority vested in it as provided in Section 42 of the said Act means the power has been given to the Board under Section 42 for exercising the powers of the Telegraph Authority notwithstanding the provisions contained in Sections 12 to 16 and 18 and 19 of the Indian Electricity Act, 1910. There was absolutely no necessity in restating in the notification that the Board shall have all the powers which the Telegraph Authority possesses under the Indian Telegraph Act for placing of any wires, poles, wall-brackets, stays, apparatus and appliances for the transmission and distribution of electricity when the notification states that the Board shall exercise all the powers of Telegraph Authority vested in it as provided under Section 42 of the said Act. The notification, therefore, clearly empowers the Board, its officers, servants and agents to exercise all the powers of Telegraph Authority under the Indian Telegraph Act for execution of the scheme which has been sanctioned and, therefore, the provisions of Sections 12 to 19 of the Indian Electricity Act would not apply. The Courts below, therefore, seriously erred in holding that in the notification published under Section 28(3), the Board has not been empowered the powers of Telegraph Authority under the Indian Telegraph Act and that the provisions of Section 12 to 19 of the Indian Electricity Act were required to be followed."
Taking note of the decision made in Bharat Plywood and Timber Products Private Ltd., v. Kerala State Electricity Board, Trivandrum reported in AIR 1972 Ker. 47, wherein, the Full Bench of the Kerala High Court considered the legality and constitutionality of Section 51 of the Indian Electricity Act, which is quite similar to Section 42 of Act, 1948, a Hon'ble Single Judge of Bombay High Court in Janardhan Bhausaheb Desai's case reported in AIR 1988 Bom. 75, at Paragraph 13, held as follows:
"13. There can be no doubt that laying of electric supply lines is of utmost importance, need of hour and life and blood of progress and development and the said process cannot be allowed to be blocked on technical grounds. In the present case, the notification dated 30-10-1986 means that the Board exercises the powers of Telegraph Authority in execution of the scheme, and, therefore, there is no impediment for the Board and its officials to exercise the powers of the Telegraph Authority possessed under Part III of Indian Telegraph Act and do all such acts necessary for execution of the Scheme."
It is worthwhile to reproduce the judgment made in Bharat Plywood and Timber Products Private Ltd.,'s case (cited supra), considered in Janardhan Bhausaheb Desai's case (stated supra), as follows:
"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 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."
In Janardhan Bhausaheb Desai's case (stated supra), Bombay High Court, taking note of a decision in Rajak v. National Thermal Power Corporation Ltd.. Indore reported in AIR 1988 MP 172, wherein, the Madhya Pradesh High Court held that, "once the power has been conferred under Section 42 of the Act read with Part III of the Indian Telegraph Act there can be no valid objection to the implementation of the sanctioned scheme on the principles of natural justice or on the ground of unauthorised user of the petitioner's land."
39. In Rajak and ors. vs. National Thermal Power Corporation Ltd., Indore and anr., reported in AIR 1988 Madhya Pradesh 172, a Hon'ble Division Bench of the Madhya Pradesh High Court held that the petitioner therein could not object to the implementation of a scheme for erection of tower and laying of transmission lines over certain lands on the ground that no notice is served on the land owners and the principles of natural justice are not complied with.
40. In Jiviben Motibhai Patel v. Executive Engineer (C &M) Gujarat Electricity Board, Baroda reported in 1996 (1) GLR 470 : 1995 AIHC 6359, the Gujarat High Court, at Paragraphs 25 and 28, held 25. It becomes very clear from the provisions of Section 10 to 19 of the Indian Telegraph Act coupled with provisions of Section 51 of the Indian Electricity Act that the Board was not required to obtain consent of the petitioner for doing the impugned work or for any works as defined in Section 2(n). It is also no! obligatory on the part of the competent authority which has been conferred powers of the Indian Telegraph Act under Section 10 of the said Act, to issue prior notice to the owner of the property over which electric supply line is proposed and before exercising power under Section 10. In view of the conjoint reading of the provisions of Section 51 of the Electricity Act and Section 10 of the Indian Telegraph Act, for exercise of powers in laying down poles and construction of electric line, consent or prior intimation was not necessary. The only right to the owner or the occupier, as the case may be, is to claim compensation compensation has already been awarded by the Additional District Magistrate. Therefore, the act of placing poles and laying over head electric line in the field of the petitioner cannot be said to be unauthorised in the absence of prior permission of the District Magistrate.
28. Now, relevant section is Section 16 of the Indian Telegraph Act. The exercise of powers under Section 10 is not conditional on compliance of provisions of Section 16(1). The powers given under Section 10 are, as such, absolute. It is only when there is obstruction or resistance in exercise of powers, then in that event, the authority is obliged to approach the District Magistrate. In absence of any resistance or obstruction, it would not be necessary at all for the authority to approach the District Magistrate. In the present case, no objection or resistance was made until the poles were installed. Therefore, there was no necessity to obtain order of the District Magistrate under Section 16(1) of the Indian Telegraph Act. Therefore, on that ground also, the second contention is also not sustainable.
41. On the aspect, as to whether, prior consent is required, this Court has considered a case in E.Venkatesan v. Chairman, Tamil Nadu Electricity Board, Madras reported in AIR 1997 Mad. 64, wherein, writ petitions were filed, by the land owners, objecting to the digging up of pits for erecting poles in order to draw electric wires/cables over the lands. It was contended that no notice was given to the pattadars and in the absence of any consent of the owners of patta lands, the respondents-Electricity Board has no jurisdiction or power or authority to enter into the patta lands, dig pits, erect poles or draw high tension wires over patta lands. It was also contended that the electric wires be drawn from the nearby poramboke land, available abundantly on the eastern side of the lands. Therefore, a Writ of Prohibition or a Mandamus, forbearing them from erecting pole or drawing high tension wires or cables over the lands of an extent of 0.39.5 hectares. Defending the action, the Board submitted that Section 42 of the Electricity Supply Act, 1948, gives authority for placing the poles or towers in private lands. It was also contended that under Section 51 of the Indian Electricity Act, the Board can exercise the powers under Sections 10 to 19 and 19-A of Telegraph Act, 1885, for laying lines. It was further stated that in exercise of powers under Section 51 of the Electricity Act, the Government has issued Orders in G.O.Ms.No.1455, dated 06.06.1961 and in view of the power exercised under Telegraph Act read with Electricity Act and also Electricity Supply Act, they are entitled to draw electric lines, and the land owners are entitled to claim only compensation for damages, if any, caused to the property. Added to that, the Board has further contended that the interests of the public has to be taken into consideration. On the abovesaid grounds, dismissal of the writ petition was prayed for. After considering Section 10 of the Telegraph Act and Section 51 of the Electricity Act and the decisions in Provash Chandra Sett v. Gouripore Electric Supply Co. Ltd., reported in AIR 1960 Cal. 311, Bharat Plywoods & T.Products v. EL. Board reported in AIR 1972 Kerala 47, Deva Raj v. U.P. State Electricity Board, Lucknow reported in AIR 1977 ALL. 452, Mammoo v. State of Kerala reported in AIR 1980 Kerala 18 (FB) and H.Bhadur Singh v. The Divisional Engineer, Andhra Pradesh State Electricity Board, Transmission Line Division reported in (1991) 2 Andh.L.T. 7 and having regard to the Notification of 1961, issued by the Telegraph Act, Hon'ble Mr.Justice S.S.Subramani, (as he then was), held as follows:
"13. In this connection, it may also be useful to consider the scheme under Section 10 of the Indian Telegraph Act. It gives the telegraph authority power to place and maintain a telegraph line under, over, along or across and posts in or upon any immovable property. The proviso indicates that such power is to be exercised only for telegraph established or maintained by the Central Government or to be so established and maintained, that the Central Government Acquires only the Right of User, that in the case of local authority the exercise has to be with permission of that authority and that in the exercise of such power as little damage as possible is to be caused. These are in the nature of restrictions in the exercise of the power and do not restrict the discretion .to determine the property over which the lines are to pass or posts are to be erected. The discretion is in the Telegraph Authority. (AIR 1980 Kerala 18 (FB) - Mammoo v. State of Kerala).
14. In view of the Notification of 1961, the words 'Telegraph Authority' in Section 10 of the Telegraph Act have been substituted by the words 'State Electricity Board'. In view of the substitution, the State Electricity Board gets power to locate towers on any land owned by any person.
In this connection, it is also better to take note of paragraph 18 of the Full Bench Decision of the Kerala High Court reported in Bharat Plywood and Timber Products Private Ltd., v. Kerala State Electricity Board, Trivandrum reported in AIR 1972 Ker. 47. The said paragraph reads thus:--
"The power that can be conferred under Sec. 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 S. 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 guidelines 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 S. 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 interest 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."
While explaining the obligation on the part of the Government or the Licencee, to provide electricity, Bharat Plywood and Timber Products Private Ltd., v. Kerala State Electricity Board, Trivandrum reported in AIR 1972 Ker. 47, as extracted in E.Venkatesan's case, is worth reproduction, In the same decision, their Lordships further held thus (at pp. 51-52 of AIR) :-
".....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 the 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, and also particularly by S. 51 of the Electricity Act read with S. 10 of the Telegraph Act."
15. A Division Bench of the Kerala High Court had occasion to consider the scope of Section 51 of the electricity Act in the case (AIR 1973 Kerala 95) Kerala State Electricity Board v. P. M. Maitheyan). There, the question was, whether mandatory injunction could be issued against the Kerala Electricity Board for installing a power over the property of a person from whom written consent was not obtained. Their Lordships, while considering Section 10 of the Telegraph Act read with Section 51 of the Electricity Act, came to the conclusion that the Electricity Board has been conferred with powers and they have got the power to lay electric lines over properties belonging to private persons and no consent of the owner of the land is required for that purpose. Following an earlier Full Bench decision of that High Court in Bharath Plywood and Timber Products Private Limited case (supra), their Lordships said that the officer of the Electricity Board has only lawfully drawn electric lines through the private property and that consent is not required. In paragraph 3 of the judgment (at page 542) (of Ker LT) : (at p. 96 of AIR), their Lordships have held thus :--
"......The subject has been discussed elaborately by a Full Bench of this court in Bharat Plywood & Timber Products Pvt. Ltd. v. Kerala State Electricity Board, (FB). There, it is laid down that the power conferred under Sec. 51 upon any public officer, licensee or any other person is for the purpose of placing electric supply lines, that under the Act if any individual has any objection to the lines being laid across his property, he has to raise objection to the laying of the lines and that the Electricity Authorities are then bound to approach the District Magistrate for obtaining permission to lay the lines. It is clear from the provisions in sub Ss. 1 and 2 of S. 16 of the Telegraph Act that the telegraph authority is bound, in case of resistance or obstruction by the owner of occupier, to resort to the procedure indicated in sub-S. 1 of S. 16, In other words, the authority has to get an order from the district Magistrate before exercising the power so conferred. In this case, the owner of the property has raised no resistance or objection when the lines were laid over this property. It was long after the lines were laid that the respondent purchased the property from the original owner. There is no justification in his now saying that the lines should not have been laid over the property as the law had permitted him the right to object to the laying of the line."
In the same volume, i.e. 1972 Ker LT 856 (Poulo kunj ouseph v. K. S. E. Board), the question that arose for consideration was, what is the consequence of a consent originally given but subsequently withdrawn. A learned Judge of the Kerala High Court held in that case thus:--
"A survey of the provisions contained in Ss. 18(c), 26 and 42 of the Electricity (supply) Act, 1948, S. 51 of the Indian Electricity Act, 1910, and S. 10 of the Indian Telegraph Act, 1885, would make it clear that the placing and carrying of electric lines over the properties even of private individulas by the Electricity Board and its officers in discharge of the statutory obligations laid on the Board under the provisions of the Acts in question are not in any way dependant upon the consent of the individuals concerned being so, the legal position appears to be plain that the withdrawal of consent by the third respondent by itself cannot automatically entail a dismantling or removal of the electric lines laid by the Board or its officers over the third respondent's property for the purpose of giving service connection to the petitioner. Counsel for respondents 1 and 2 attempted an argument that the provisions of the section would not be applicable to service lines such as what is involved in this writ petition. On the language of the section which refers to the placing of electric supply lines....... it is not possible to read this restriction in the section. Nor is it possible to find any such restriction in the remaining words or language used in the section."
18. A learned Judge of this court also had occasion to consider this question, and the same is reported in 1994 Writ LR 445 (M.Nithyanadham v. The Chairman, Tamil Nadu Electricity Board), where their Lordships followed the Full Bench decision of various other High Courts, and came to the conclusion that the owner of the property is entitled only to claim compensation as provided under Section 16 of the Telegraph Act for damage caused to the property. It was held in that case thus:--
"As the provisions stand it is hot obligatory on the part of the competent Authority to issue prior notice before exercising power under the provisions of the Act. No doubt, it will be proper and certainly desirable that the owner of occupier should be informed before acts are done on his property. It is conceivable that when the parties are so informed, the exact location and the alignment of the line can be settled without resistance or obstruction by mutual understanding and discussion. However that be, considering the provisions in the Telegraphs Act and the provisions of the Indian Electricity Act, it is not necessary that there should be prior notice. A Full Bench of the Kerala High Court has also taken a similar view. Provisions of S, 42 are very clear, and at the end of the 20th century, it is no longer open to anybody to contend that high tension towers cannot be put up.
S. 42 of the Electricity (Supply) Act, 1948, gives authority for placing the poles or the towers in a private land and clause (d) referred to above provides for payment of compensation. S. 16(1) provides for the Board approaching the District Magistrate in case of resistance by the owner S. 16(3) provides for the mode for fixing the compensation in case of dispute regarding the sufficiency of the compensation.
In the light of the non-obstante clause in S. 42, excluding in categoric terms the applicability of Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910, in my considered opinion, it is not open to the petitioners to rely on S. 12 of the Indian Electricity Act, 1910.
As rightly pointed out in the Division Bench of the Allahabad High Court in , the only right that persons like the petitioners are left with is to obtain compensation from the authorities concerned.
The counsel for the Electricity Board has also fairly conceded at the time of hearing that the petitioners have a right to obtain compensation for the loss they have suffered. Therefore, the Electricity Board is directed that on receipt of application from the petitioners for payment of compensation, it should fix the amount of compensation payable to them on the basis of the market value prevalent on the date of erection of poles. A duty is cast on the Electricity Board to decide the compensation payable to the petitioners for the loss suffered by them. Therefore, the Electricity Board has to decide the compensation amount payable to the petitioners within three months from the date of receipt of application from them.
Now that the Electricity Board is given permission to take the high power tension line through the lands of the petitioners in the interest of public, the Madras Metropolitan Development Authority and other Municipal and public authorities are directed to consider the applications, if any, filed by the petitioners for planning permission, etc., and sanction the same as per Rules except on the ground of passing of the high tension power line."
On the aspect, as to whether, the user of the land by the licencee amounts to acquisition, at Paragraph 19 of the judgment, this Court held that, "19. From the above settled position of law, it is clear that when the Electricity Board exercises power under Section 51 of the Electricity Act read with Section 10 of the Telegraphs Act, they are not acquiring any land. They are only making use of the land for the purpose of laying electric lines for which full compensation is given for the damage caused. It is also clear therefrom that no notice is required to the owner before laying the poles or constructing any tower, nor any consent is required from them.
20. In this case, the fact that there was a notification in 1961 is not a matter in dispute. Subsequently proceedings have been issued by the first respondent on 18-12-1993 whereby the scheme was approved, and it was also declared that the Board will exercise power of Telegraph Authority under Section 45 of the Electricity Supply Act, and, therefore, the Electricity Board shall not be bound by the provisions of Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910. In view of the notification and also the approved Scheme, no argument can be put forward by the petitioners that the officers of the Electricity Board are not entitled to enter the property or to draw the electric line. Once the power under the Telegraphs Act is given to the public officers of the Board, they are also entitled to dig pits and also instal towers over the property. The question of consent from the petitioners does not arise for consideration, nor is it required under law."
It is worthwhile to reproduce some of the decisions considered in E.Venkatesan's case (cited supra), on the aspect, as to whether notice is required to be given to the land owners, which are as follows:
"9. As seen from the decision ( Provash Chandra Sett v. Gouripore Electric Supply Co. Ltd., reported in AIR 1960 Cal. 311) A learned Judge of that High Court said that for empowering Public Officers to perform the duties under the Telegraph Act, notice need not be given to any of the parties since no dispute was being decided. In that decision, it was held thus:--
"Section 51 does not require the State Government to determine or decide any dispute between two contending parties. Supposing the State Government was minded to confer upon the licensee powers which the telegraph authority possesses, in general terms, S. 51 or any other provision of the Electricity Act does not contain any provision whereby the State Government is required to hear any person or persons who may in future be affected by the exercise of such powers. Indeed when such general powers are sought to be conferred, it is not even known which person or persons may in future be affected by the exercise of such powers. Even when the power is conferred in restricted terms the State Government while exercising the powers under S. 51 is not called upon to decide a dispute arising out of a claim made by one party and opposition by the other and to determine the respective rights of the contesting parties. The State Government cannot be said to exercise a quasi-judicial power while conferring upon the licensee powers under S. 51 whether general or special, and the State Government is not required to give the party affected an opportunity of being heard.
An administrative power conferred by any statute upon any public authority must always be exercised reasonably and in good faith. Cases may arise where such a power cannot be said to have been exercised reasonably unless notice has been given to the person interested before the exercise of such power and such persons have been asked to show cause why the power should not be exercised. However, a provision for the giving of a notice ought not to be implied in S. 51. The giving of such a notice could not be reasonably insisted upon where the power was being conferred in general terms. Similarly, it is not incumbent upon the State Government to give such a notice even when the power is conferred in special or restricted terms".
10. A similar question came for consideration before a Full Bench of the Kerala High Court, and the decision rendered thereon is corresponding to 1970 Ker LT 872 (Full Bench) Bharat Plywoods & T. Products v. El. Board). Their Lordships said that while invoking the power under Section 51 of the Electricity Act, the Authorities are not acquiring any land and, therefore, there is no question of any acquisition or requisition, as contended by the petitioners. Their Lordships held thus (At pp. 50-51 of AIR):--
"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 under S. 51 has no power to take initiative for the acquisition of land under the Land Acquisition Act by virtue of the conferment of such power. There is no acquisition or requisition of land involved when the powers under S. 10 of the Telegraph Act are exercised. This is clear from the poriviso (b) to Sec. 10 of the Telegraph Act. The only right involved is the right of user of the property for the purposes mentioned in the Section. The fact that an authority on whom powers under Sec. 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 he whether her the stadtutory provision in S. 51 of the Electricity Act or that in S. 10 of the Telegraph Act is discriminatory. The power to acquire under the Land Acquisition Act can be exercised only by the State Government or the Collector, as the case may be. There can, therefore, be no question of discrimination".
11. In the decision reported in AIR 1977 All. 452 (Deva Raj v. U.P. State Electricity Board, Lucknow), a Division Bench of that High Court has held thus :--
"By virtue of the notification issued under Section 51 of the Electricity Act of 1910, the words "Telegraph authority" in Section 10 of . the Telegraph Act were substituted by the "State Electricity Board". In view of the notification read with Section 10 of the Telegraph Act, it is not possible to contend that the State Electricity Board, had no power to locate towers on the land owned by a person.
Neither Section 51 of the Electricity Act of 1910 nor Section 10 of the Telegraph Act provides any procedure under which compensation shall be determined. It is thus not necessary for the owner of the land to make any formal application for determination of compensation for loss, if any, suffered by him, on account of the action of the Electricity Board".
12. The Andhra Pradesh High Court had occasion to consider a similar question, and the same is reported in (1991) 2 Andh LT 7 (H. Bhadur Singh v. The Divisional Engineer, Andhra Pradesh State Electricity Board, Transmission Line Division). In the said decision, a learned Judge of that High Court has held thus:--
"By virtue of S. 42 of the Electricity Supply Act vesting in the Board the power possessed by the Telegraphic authorky, the Board for the limited purpose of erecting a transmission line is not obliged to acquire any land belonging to any person.
The grievance of the petitioner is that he will be put to much loss and damage due to erection of poles. If the petitioner is really aggrieved by the action of the respondents, he has got a right to claim compensation and this is not the proper forum for redressal of his grievance, if any. When the Board has got ample power to lay the lines for public purpose and in public interest without recourse to the provisions of the Land Acquisition Act, the petitioner has no right to question the same in writ proceedings under Article 226 of the Constitution. There are no merits warranting interference by the High Court. The petitioner is at liberty to claim compensation before the competent authority, if he so desires".
42. In S.M. Rao v. State of Karnataka reported in AIR 1999 Karnataka 475, the Court, at Paragraphs 17 and 25, held as follows:
"17. The next contention is that Section 28 notification has not been duly published. As said earlier it is not an acquisition proceeding. 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.
20. The contention urged, namely, that consent of the owners of the land through which the line travels 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 Talegraph Act. If there is an order in this behalf, then no consent is called for."
43. In K.Maruthamuthu v. The District Magistrate [W.P.(MD)No.4388 of 2007, dated 24.05.2007], after referring to Sections 172, 185, 67(2) of the Electricity Act, 2003 and Section 14 of the Act, empowering the appropriate Government to grant licence to any person to transmit electricity, as a licensee or to distribute electricity, The Hon'ble Mr.P.K.Misra, at Paragraphs 10 to 12, held as follows:
10.A conjoint reading of aforesaid provisions makes it clear that the State Electricity Board, which was constituted under the Electricity (Supply) Act, 1948 is deemed to be the State Transmission Utility and a licensee under the provisions of the Electricity Act, 2003 and as such shall be deemed to be a State Transmission Utility and a licensee under the Act, which would have power to erect transmission lines and for the aforesaid purpose it is obviously vested with the jurisdiction to erect towers, if necessary even on the lands belonging to private persons. However, by virtue of the provisions contained under Section 10 of the Indian Telegraph Act, 1885 as well as Rule 3 of the Rules, if any objection is raised by any person relating to erection of power supply lines, necessary permission from the District Magistrate is required.
11.It is of course true that under Section 10(d) of the Indian Telegraph Act, 1885, the concerned Authority is obliged to do as little damage as possible and he is also required to pay compensation to all persons interested for any damage sustained by such persons by reason of the exercise of such power. Similarly, under Rule 3(2) of the Rules, the District Magistrate is required to fix the amount of compensation or annual rent or of both to be paid by the licensee to the owner or occupier. In the present case, no assessment regarding compensation payable has been made by the District Magistrate. This may be because the writ petitioners have not specifically claimed any compensation to be paid. However, merely because the District Magistrate has not assessed the compensation payable, it cannot be said that the order passed by the District Magistrate permitting the Electricity Board to erect the towers for supporting the electricity supply lines cannot be characterised as void or without jurisdiction. There is no provision either under the Indian Telegraph Act, 1885 or under the Rules which makes the payment of compensation as a condition precedent for the permission to be granted. The provisions of the Indian Telegraph Act, 1885 and the Rules contemplate that there is statutory obligation on the Authority concerned, including the licensee to pay such compensation and failure to do so would attract penal provisions. However, payment of such compensation can be a condition subsequent rather than a condition precedent.
12.Both under Section 10 of the Indian Telegraph Act, 1885 as well as under the Rules, it is expected that the licensee shall cause the least damage. In the present case, it has been pointed out that the Electricity Board has carefully chosen the places where the towers are to be erected with a view to cause least inconvenience and damage to the persons concerned. Nothing was specifically pointed out before the District Magistrate to come to a conclusion that in fact the damage likely to be caused could have been minimised by erecting the towers on any other part of the lands. Similarly, nothing has been averred specifically in the present writ petitions in support of the submissions that the provisions contained in Section 10 of the Indian Telegraph Act, 1885 or in the Rules were transgressed in any manner. As already indicated, the main contention seems to be the lack of authority on the part of the Electricity Board on various legal grounds. However, factually, no assertion seems to have been made that the places have been selected arbitrarily or are in any way inconvenient or inappropriate. In the abovesaid judgment, the learned counsel for the petitioner has argued that the observation of the District Magistrate, contained in the internal page 9 of his order, to the effect that the Tamil Nadu Electricity Board has already got the authority from the Government to exercise the powers of the Telegraph Authority under the provisions of Section 164 of the Electricity Act, 2003 is not correct inasmuch as no such authority has been issued specifically under the Electricity Act, 2003. It has been argued by the petitioner therein that the observation of the District Magistrate may appear to be slightly inappropriate, in the sense that, there does not appear to be specific authorisation under Section 164 of the Electricity Act, 2003 after such Act has come into force. However, the learned Judge observed that such authorisation issued under Section 51 of the Indian Electricity Act, 1910 can be said to be still holding the field, by virtue of the provisions contained in Section 185(2) of the Electricity Act, 2003. This Court held that, To sum up the conclusions, it can be said that the Tamil Nadu Electricity Board shall be deemed to be the State Transmission Utility and a licensee under the provisions of the Electricity Act, 2003 by virtue of the provisions contained in Section 172(a) read with the notifications issued from time to time by the State Government under the proviso to the said Section. In view of the authorisation issued under Section 51 of the Indian Electricity Act, 1910, which can be deemed to be continuing by virtue of Section 185(2) of the Electricity Act, 2003, the Tamil Nadu Electricity Board can be considered as the State Transmission Utility as well as the licensee and authorised to exercise the powers under the Indian Telegraph Act, 1885. The exercise of the power by the Electricity Board is obviously for the public purpose and it cannot be said that there is any embargo on the Board under Section 39 of the Electricity Act, 2003. This is so because the Tamil Nadu Electricity Board can be considered not only as a State Transmission Utility but also as a licensee under the Electricity Act, 2003. There is nothing on record to show that the places proposed to be utilised for erecting the towers are likely to cause more damage than necessary. However, the land owners are entitled to get compensation which has to be ascertained by the District Magistrate and for the aforesaid purpose an enquiry shall be held by the District Magistrate which should be concluded after giving opportunity of hearing to all concerned, including the owners of the property, as expeditiously as possible, preferably within a period of two months from the date of receipt of a copy of this order. Since there is a statutory obligation on the part of the Tamil Nadu Electricity Board to pay compensation, it is expected that the Board would pay such compensation within a period of one month from the date of determination by the District Magistrate. However, it would be open tot he owners to raise appropriate dispute before the appropriate forum relating to extent of compensation, if they are so advised. Notwithstanding the direction that the District Magistrate is required to assess the compensation payable, it is always open to the petitioners and the Electricity Board and respondent No.3 to fix the amount of compensation payable on the basis of mutual discussion. The Electricity Board can proceed with the work in respect of the lands of the three writ petitioners and this need not await the determination/payment of compensation.
44. In Ajay Munjal Memorial Trust v. Power Grid Corporation of India reported in AIR 2008 Jhar. 34, the Jharkand High Court has observed as follows:
5. Section 12 of the Indian Electricity Act, 1910 (Electricity Act, 1910 for short) inter alia authorized the licensee to lay down or place electric supply lines with consent of the owner or the occupier of the land. Section 51 of this Act provided inter alia that notwithstanding anything contained in Sections 12, the Central Government for inter-State transmission system, could confer upon a licensee, any of the powers vested in the Telegraph Authority under the Indian Telegraph Act, 1885. Similar provisions are made in Section 164 of the Electricity Act, 2003 which also provides that appropriate Government may vest powers of Telegraph Authority with the licensee.
Section 67(1) of Electricity Act, 2003 inter alia provides that a licensee may lay down or place electric supply lines. Section 67(2)(a to d) inter alia provides that the Appropriate Government may, make rules specifying- (a) the cases and circumstances in which the consent in writing of the owner or occupier shall be required for carrying out works; (b) the appropriate authority which may grant permission where the owner or occupier objects; (c) the nature and period of notice to be given by the licensee before carrying out works; and (d) the procedure and manner of consideration of objections and suggestions etc. Section 176(2)(e) inter alia provides that the Central Government may make Rules, about the works of licensees affecting the property of owner or occupier under Section 67(2). Rules 2006 are made in exercise of such powers. Rule 3 inter alia authorizes the licensee to carry out works, lay down or place electric supply lines or other works on or over any land, with the prior consent of the owner or occupier of land. Sub-rule (4) of Rule 3 provides that Nothing contained in this rule shall effect the powers conferred upon any licensee under Section 164 of the Act (emphasis supplied). Thus even if it is accepted that Section 12 of the Electricity Act, 1910 continued as per Section 185 of the Electricity Act, 2003, till the rules under Section 67 of this Act, 2003, were made; powers under Section 164 of this 2003 Act, which are akin to the powers contained in Section 51 of the Electricity Act, 1910, was exercised by notification dated 24.12.2003. As already noticed above, the provisions of Section 12 of the Electricity Act, 1910, were subject to the provision of Section 51 of that Act.
6. There appears to be some purpose behind the provisions contained in Section 51 of the Electricity Act, 1910; Section 164 of the Electricity Act, 2003; and Sub-rule (4) of Rule 3 of the Rules, 2006. For early completion of important projects, power has been reserved with the appropriate Government, to issue notification vesting Powers of Telegraph Authority with the licensees, where consent is not required, under Section 10 of the Telegraph Act. Section 51 of the Electricity Act, 1910 had overriding effect over Section 12 of that Act. Similarly, Section 164 read with Sub-rule (4) of Page 1801 Rule 3 of the Rules, 2006, has overriding effect over Rule 3(1) to (3). Section 42 of the Indian Electricity (Supply) Act, 1948 also reserves such powers, and is exception to Section 12 of the Electricity Act, 1910.
8. In view of scheme of the Electricity Act, 1910, Electricity (Supply) Act, 1948, Electricity Act, 2003, the Rules of 2006 and Section 10 of the Telegraph Act; and the notifications dated 24.12.2003, it is clear that prior consent from the petitioners was/is not required. It is worthwhile to reproduce the judgments relied on, in Ajay Munjal Memorial Trust's case, as follows:
In the Division Bench Judgment of Patna High Court reported in 1992 (2) PLJR 134, Suku Mahto v. State of Bihar, one of the disputes was that, the licensee could not place transmission line without taking consent as provided under Section 12(2) of the Electricity Act, 1910. The High Court refused to exercise jurisdiction under Article 226 of the Constitution of India taking into consideration that the project was of national importance and was nearing completion; and if the licensee is directed to approach the District Magistrate to obtain necessary permission as per Section 12(2) of the Electricity Act, the same may cause further delay in the project. It was further noticed that the right of an individual sometimes has got to give way to the right of public at large.
11. Paragraph 19 of the judgment in Venkatesan v. Chairman, Tamilnadu Electricity Board, Madras, reads as follows:
From the above settled position of law, it is clear that when the Electricity Board exercises power under Section 51 of the Electricity Act read with Section 10 of the Telegraphs Act, they are not acquiring any land. They are only making use of the land for the purpose of laying electric lines for which full compensation Page 1802 is given for the damage caused. It is also clear therefrom that no notice is required to the owner before laying the poles or constructing any tower, nor any consent is required from them.
12. In paragraph 15 of the judgment in Rajak and Ors. v. National Thermal Power Corporation Ltd., Indore, it was observed as follows:
In view of the power vested in the Generating Company NTPC under Section 42 of the Act read with part III of the Indian Telegraph Act, there can be no valid objection by the petitioners to the implementation of the sanctioned scheme either on the principles of natural justice or on the ground of unauthorized user of petitioner's land in respect of which compensation has been provided for under proviso (d) to Section 10 of the Indian Telegraph Act.
45. In T.S.T.Kaznavi v. Tamil Nadu Electricity Board reported in 2008 (2) MLJ 703, the land owner filed a writ petition, challenging erection of high tension electric line tower in his land, on the ground that no notice was given to him. It was also contended that the property was sought to be acquired, without following due process of law. The Tamil Nadu Electricity Board has contended that as per Sections 164 and 185(2)(a) of the Electricity Act, 2003, the Board has the power of the Telegraph Authority under the Indian Telegraph Act,1885, with regard to laying of lines and erecting poles. The said power has already been conferred on the Electricity Board by the Appropriate Government viz., Government of Tamil Nadu under Section 51 of the Indian Electricity Act, 1910 in G.O.Ms.No.1455 (P.W.D.) dated 06.06.1961 and extended by Notification dated 28.06.2004, and as such, the Electricity Board, being the Transmission Licensee under the Electricity Act,2003, is not bound by the provisions of Sections 12 to 16, 18 and 19 of Indian Electricity Act, 1910. After considering the relevant provisions, viz., Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910, Section 42 of the Electricity (Supply) Act, 1948 and Electricity Act, 2003, a learned Single Judge of this Court discussed the powers of the State Government to issue a notification, the powers of the telegraph authority, etc., and at Paragraphs 9, 13 and 14, held as follows:
9. Under the Electricity (Supply) Act,1948, the Electricity Board had the power of placing any wires or poles, wall brackets, stays apparatus and appliances for transmission and distribution of electricity or for the transmission of telegraphic or telephonic communications necessary for the proper co-ordination of the works of the Board, which power the telegraph authority possesses under Indian Telegraph Act,1885. However, the said power of the Board under the said Act was notwithstanding anything contained in Sections 12 to 16, 18 and 19 of the Indian Electricity Act,1910 and without prejudice to the requirement of Section 17 of the said Act......
13. Now, coming to the provisions of the Indian Telegraph Act,1885, Part III Section 10 of the said Act empowers the telegraph authority to place and maintain telegraph lines and posts. The said provision makes it very clear that while doing the said work to maintain telegraph-line upon any immovable property, the Central Government does not use the power of acquisition of any right except the right of user in respect of the property under, over, along, across, in or upon which the telegraph authority places any telegraph-line. It also makes clear that while performing the function, the authority shall do all necessary things so as to make as little damage as possible. In cases of any damage caused and disputes raised in that regard, Section 16 provides the procedure for settling such disputes. It makes clear that when an occupier resists or obstructs the conduct of the authority, then the District Magistrate is empowered to grant permission to the authority and in cases where any dispute arises regarding the sufficiency of compensation to be paid under Section 10(d), then the procedure is contemplated to be followed by the District Judge within whose jurisdiction the property is situated......
14. The Electricity Act,2003, which holds the field received the assent of the President of India on 26.05.2003 and it was published in the gazette on 02.06.2003 to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity and generally for taking measures conducive to development of electricity industry, promoting competition therein, protecting interest of consumers and supply of electricity to all areas, rationalisation of electricity tariff, ensuring transparent policies regarding subsidies, promotion to efficient and environmentally benign policies, constitution of Central Electricity Authority, Regulatory Commissions and establishment of Appellate Tribunal, etc. The Electricity Act,2003 is having overriding effect subject to Section 173 of the Act, which relates to the Consumer Protection Act,1986 or the Atomic Energy Act,1962 or the Railways Act,1989. The provisions are also stated to be in addition to and not in derogation of other laws, under Sections 174 and 175.
The Court, at Paragraph 20, further held that, "20. As per Section 39(1) of the Electricity Act,2003, the State Government has notified the Tamil Nadu Electricity Board as "State Transmission Utility" as stated in the counter affidavit of the Board. By virtue of the powers under Section 67(2) of the Electricity Act,2003, the Government has framed Rules called, "The Works of Licensees Rules,2006". These Rules relate to the works of licensees pertaining to the distribution and supply of electricity to the consumers. Section 68 of the Electricity Act, 2003 enables the appropriate Government to grant approval regarding overhead lines. Section 185 of the Electricity Act,2003, which repealed the Indian Electricity Act,1910, Electricity (Supply) Act,1948 and the Electricity Regulatory Commission Act,1998, saves any action taken under the previous Acts and Laws in so far as it is not inconsistent with the provisions of Act,2003, stating that such acts are deemed to be the acts under the new Act.
After considering Sections 164 and 185 of the Electricity Act, 2003, the Court further held that, "22. Thus by exercise of the powers under Sections 164 and 185(2)(a) of the Electricity Act,2003 and in continuation of the powers already conferred under Section 51 of the Indian Electricity Act,1910, the respondent Electricity Board acted as a telegraph authority under the Indian Telegraph Act,1885 in performing the functions as State Transmission Utility."
On the aspect of compensation and while construing the provision of Section 10 of the Indian Telegraph Act,1885, along with Section 42 of the Electricity (Supply) Act,1948, a Full Bench of Kerala High Court in Arya Antherjanam vs. Kerala State Electricity Board, Trivandraum (AIR 1996 Kerala 309 (FB)) held that in respect of cutting of trees for the purpose of erecting transmission lines, the land owners are entitled to claim compensation for diminution in market value of the property. The decision of the Full Bench in Arya Antherjanam's case, as extracted in T.S.T.Kaznavi's case (cited supra), is worth reproduction:
"11. We find merit in the contention of the claimants that since capitalisation method is not being adopted for assessing the quantum of compensation for cutting trees it is open to the land owners to claim compensation for diminution in market value of the property. Section 10 proviso (d) makes it mandatory that while drawing the line through any property in exercise of the powers given under S.10 the authority shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of such power. In 1961 Ker LT 238: (AIR 1961 Ker 237) (supra) the Division Bench of this Court observed that destruction of trees standing on agricultural land is one of the items of damage, which can be valued and assessed. We are in agreement with the view. It would mean that apart from the compensation for damage done to the trees there can be other damage to the land for which compensation can be claimed. As mentioned earlier, in 1967 Ker LT 938 (supra) a Division Bench of this Court has accepted the principle that even after granting compensation for destruction of the trees owners of the property can claim compensation for diminution in market value of the land by the erection of transmission towers and of electric posts and by the stringing of electric wires. The same view was taken in 1989 (1) Ker LT 451:(AIR 1989 KER 198) as follows (at p.208 of AIR):-
"Since the compensation payable under S.10(d) of the Telegraph Act is the just equivalent of what the owner has been deprived of, he is entitled also to any diminution in value of land for the reason of the drawal of overhead power lines across the land".
We are in full agreement with the above view taken by the two Benches of this Court regarding the eligibility for compensation on diminution of land value."
The Full Bench has also held that while deciding about the compensation regarding the diminution of the value, it is the duty on the part of the claimant to mitigate the damages in the following terms:
" 20. In the light of the above discussion we are inclined to take the view that the claimants have duty to mitigate the damage by resorting to any other cultivation which is reasonably possible in the land covered by the electric line and can be carried on economically. Of course the Board cannot compel the claimants to carry on cultivation underneath the electric line. But if such cultivation is reasonably possible and at the same time they failed to carry on such cultivation it will be a factor for consideration at the time of quantification of the damages."
Ultimately, the Full Bench has held as follows:
" 22. In this case it is the claimant who knows best as to how his land could be cultivated with other crops which would not violate the restrictions regarding open space to be left from the electric lines, towers and posts. It is quite plausible that every landowner would be using the land beneath the electric lines (be they of high tension or low tension) to raise cultivation or for some other purpose except of course for growing tall tress or constructing high structures. Thus, regard being had to the common course of natural events, the Court can draw a presumption that agricultural operation in a reasonably profitable manner can be carried on in the affected land except growing tall trees. Hence the burden is on the claimant to rebut the said presumption.
23. The upshot of the above discussion is that it is open to the owners of the land to claim compensation for diminution in land value when towers and poles are erected on and electric lines drawn over their lands subject to the conditions detailed in this judgement. The quantum of damages shall be fixed on the basis of the principles enunciated hereinabove. Whether claimants had taken reasonable steps to mitigate the damage or not is a question to be considered by the District Judge on the evidence in each case and subject to the presumption and onus indicated above."
On the aspect of compensation, in M.Nithyanandham and two others vs. Chairman, Tamil Nadu Electricity Board, Madras-2 and others (1994 WLR 445), The Hon'ble Dr. Justice AR.Lakshmanan,J.(as he then was), while analysing the provisions of the Indian Electricity Act,1910; Electricity (Supply) Act,1948 and Section 10 of the Indian Telegraph Act,1885, held that there is no obligation on the part of the competent authority to issue any prior notice. It was held that it is not open to anybody to contend that high tension towers cannot be put up and in the light of the non-obstante clause in Section 42 of the Electricity (Supply) Act,1948, the applicability of Sections 12 to 16, 18 and 19 of the Indian Electricity Act,1910 are excluded and the only option open to the affected person is to claim compensation as damages as per the provisions of the Indian Telegraph Act,1885. The decision of the Full Bench in M.Nithyanandham's case, as extracted in T.S.T.Kaznavi's case (cited supra), is worth reproduction:
"26. The above section, in my opinion, authority for placing the poles or the towers of private land and clause (d) referred to above provides for payment of compensation. S.16(1) provides for the Board approaching the District Magistrate in case of resistance by the owner. S.16(3) provides for the mode for fixing the compensation in case of dispute retarding the sufficiency of the compensation.
27. In the light of the non-obstante clause S.42, excluding in categoric terms the applicability of Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910, in my considered opinion, it is not open to the petitioners to rely on S.12 of the Indian Electricity Act, 1910. As stated above, the petitioners strongly relied on the decision reported in 1959 (II) MLJ 446. In that case, Basheer Ahemd Sayeed, J., was pleased to deal only with the scope of S.12. The scope of S.42 was apparently not brought to the notice of the learned Judge. Therefore, the petitioners herein cannot call in aid the said decision.
28. It was argued by Mr.A.Venkatesan, learned counsel for the petitioners, that the learned Judge had observed in the above decision that only apparatus and appliances to be placed and high tension wire cannot at all be used or put up. The petitioners cannot rely upon the observations made by the learned Judge. Provisions of S.42 are very clear and at the end of the 20th century, it is no longer open to anybody to contend that high tension towers cannot be put up.
29. A decision of Sethuraman,J., in 91 L.W.558 was also brought to my notice wherein the learned Judge has held that the Electricity Board can fix compensation.
30. Thus, I am of the view, that as the provisions stand and discussed above, I do not think that it is obligatory on the part of the competent authority to issue prior notice before exercising power under the provisions of the Act. 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 the parties are so informed, the exact location and the alignment of the line can be settled without resistance or obstruction by mutual understanding and discussion. However that be, as I understand the provisions in the Telegraphs Act and the provisions of the Indian Electricity Act, I do not consider it necessary that there should be prior notice. A Full Bench of the Kerala High Court has also taken a similar view in the decision reported in AIR 1972 Kerala 47 cited supra."
In T.S.T.Kaznavi's case (cited supra), this Court has considered the decision of this Court in E.Venkatesan and Others v. Chairman, Tamil Nadu Electricity Board, Madras (AIR 1997 Madras 64), wherein, Hon'ble Mr. Justice S.S.Subramani (as he then was), while construing Section 51 of the Electricity (Supply) Act,1948 along with Section 10 of the Indian Telegraph Act,1885, has held that while coordinating the work of transmission, the Electricity Board need not acquire lands and therefore, no notice is required to the owner before laying poles or constructing any tower, nor any consent is required, as the lands are used only for the purpose of laying electric lines. After analysing the entire case law as well as the provisions of the Act, in detail, the learned Judge held as under:
"19. From the above settled position of law, it is clear that when the Electricity Board exercises power under Section 51 of the Electricity Act read with Section 10 of the Telegraphs Act, they are not acquiring any land. They are only making use of the land for the purpose of laying electric lines for which full compensation is given for the damage caused. It is also clear therefrom that no notice is required to the owner before laying the poles or constructing any tower, nor any consent is required from them."
In T.S.T.Kaznavi's case (cited supra), a learned Single Judge also considered a decision made in W.P.No.49172 of 2006, etc., batch, dated 18.01.2007 and distinguished the same, as hereunder:
"27. In the present case, it is crystal clear that the Board acted as the State Transmission Utility as per Section 2(67) of the Electricity Act,2003 and by virtue of Notification issued by the State Government under Section 39 (1) of the said Act, the Board is not engaged in the business of trading of electricity and therefore, it is certainly different from the Power Grid Corporation and in that view of the matter, the above said judgement is distinguishable from the facts of the present case. The powers of the Board as "State Transmission Utility" is that of telegraph authority traceable under Section 10 of the Indian Telegraph Act,1885 and therefore, in cases of dispute as to compensation regarding the properties, necessarily the procedure under Section 16 of the Indian Telegraph Act,1885 has to be followed.
28. In any event, on the facts and circumstances of this case, the major point which is urged by the petitioner is that the property was sought to be acquired without following due process of law and by virtue of various judgements, especially relating to the powers of the Board as "State Transmission Utility", there is no necessity to give any notice for the purpose of erection of tower or for making "transmission lines" and therefore, the petitioner is not entitled for the relief as claimed, except the right under Section 10(d) of the Indian Telegraph Act,1885, which enables the petitioner to get compensation for any damages sustained by him while the Board exercising its powers as "State Transmission Utility" and the compensation is determinable as per Section 16 of the Indian Telegraph Act, 1885.
46. In Braham Singh vs. State of U.P. & Ors. AIR 2008 (NOC) 2034 (ALL), placing reliance on the judgment of the Madras High Court in E.Venkatesan & Ors. vs. Chairman, Tamil Nadu Electricity Board Madras & Ors. [AIR 1977 Madras 64], the Allahabad High Court held that when a Licensee exercises powers under Section 51 of the Electricity Act read with Section 10 of the Telegraph Act, the owner is not entitled to any notice before laying the poll or construct any tower, nor any consent is required from them.
47. On the issue, as to whether, consent is required or whether there is any need to initiate any land acquisition proceedings for the user of the land by the licencee is dealt with, in G.V.S.Rama Krishna v. A.P.Transco reported in AIR 2009 AP 158, the petitioners therein, alleged that the original route for erecting the poles and transmission lines, has been changed at the instance of certain influential ryots and the respondents intended to draw the lines through the lands owned by them. They further contended that without obtaining any consent, the officials have trespassed into their lands. Despite the protest, poles were sought to be erected and hence, the writ petition. A contention has been raised that the respondents therein are bound to initiate proceedings under acquisition lands. In the counter affidavit filed in opposition, A.P.Transco, rep., by its Managing Director, has contended that the Government issued G.O.Ms.No.115, dated 07-10-2003, has authorised A.P. Transco to place the electricity lines for the transmission of electricity or for the purpose of telephonic or telegraphic communications under the provisions of Indian Telegraph Act, 1885. In view of the said powers conferred on the Transmission Corporation, a notification was issued, and that the same was published in A.P. Gazette, dated 17-07-2007, notifying the transmission scheme for two Nos.400 KV double circuit lines for loop-in and loop-out of Nunna-Srisailam / Narasaraopet, 400 KV double circuit lines to VTPS(Stage-IV). The Transco also envisaged erection of 400 KV LILO of 400 KV Srisailam-Nunna DC Line to VTPS- IV stage at Vijayawada, to evacuate 500 MV power generated from VTPS-IV stage. This was essential to strengthen the 400 KV network to improve and stabilize the voltage profile of the power system network. It was further stated that laying of the electric lines was with a view to augment the power supply and the total cost of the project was Rs.19 Crores and if the line was not laid before 1st March, the department would be suffering a loss of Rs.12 Crores per day as the VTPS would be producing 500 MW power and the same has to be evacuated by March, 2009. So far as the title claimed by the petitioners in respect of the lands in question and the allegation that the respondents have illegally entered into possession of their land, it was stated that the respondents have followed the procedure contemplated under the provisions of the Electricity Act, 2003 and that a Gazette notification has been issued on 17-07-2007. Since no objections were received pursuant to the said Gazette notification, Transco decided to proceed ahead with the scheme. Though the plea that initially, it was intended by the respondents to lay the line in the property belonging to the Railways was not disputed, it was explained therein that since the same required lot of time to get necessary clearance and due to certain technical reasons, the proposal had been changed and it was decided to lay the line adjacent to the existing line. It was explained that the existing line was erected more than ten years ago and by laying a new parallel line, the farmers would be put to minimum inconvenience. Thus it was pleaded that the decision to lay the present line was only in the best interest of the farmers and not for any other extraneous reasons, as alleged by the petitioners. It was also contended that as a matter of fact series of meetings were held in the office of the Sub-collector and most of the persons in whose lands the lines were proposed to be laid attended the said meetings, and gave their consent for laying the line. Some of the petitioners before the Court, also attended the meeting and agreed for laying the lines through their lands. It was also explained that marking for commencement of construction of the lines in question was taken on 29-12-2008, after serving notices to all the concerned farmers through registered post. A notice was also pasted at Panchayat Office for intimation to the farmers. Thus it was contended that the action taken by the respondents was strictly in accordance with the provisions of the Electricity Act, 2003 and that acquisition of the land, as contended by the petitioners was not provided under the law. It was further explained that since the existing line of 220 KV would be dismantled, after the new line is laid, no damage would be caused to the petitioners as alleged. After considering a catena of decisions, the Andhra Pradesh High Court, at Paragraphs 8, 9, 13, 14 and 15, held as follows:
8. The Electricity Act, 2003 (Central Act 36 of 2003) has been enacted consolidating the laws relating to generation, transmission, distribution, trading and use of electricity and thereby repealing the Indian Electricity Act, 1910, Electricity (Supply) Act, 1948 and Electricity Regulatory Commissions Act, 1998. The said Act came into force w.e.f. 10.06.2003.
9. The material on record shows that in exercise of the powers conferred under Section 164 of the Electricity Act, 2003, the Government of A.P. issued G.O.Ms.No.115, Energy PR.III, dated 07-10-2003 thereby conferring upon the A.P. Transco the powers for placing of the electric supply lines or electric plant for the transmission of electricity or for the purpose of telephonic or telegraphic communications necessary for the proper coordination of works that a telegraph authority possesses under the provisions of the Indian Telegraph Act, 1885.
13. As noticed above, prior to the enactment of the Electricity Act, 2003, the Indian Electricity Act, 1910, and the Electricity (Supply) Act, 1948 were in force and there were various provisions governing erection of transmission lines or other connected work through, in or upon or under the private lands.
14. As per Section 12 of the Indian Electricity Act, 1910, the consent of the local authority or of the concerned owner or occupier is necessary to enable the licensee to lay down or place any electric supply line or other work in, through or against any building or on, over or under any land not dedicated to public use whereon any electric supply line or work has not already been lawfully laid down by such licensee. Under Section 51 of the Electricity Act, 1910, it was permissible for the Government to confer upon any public officer, Transmission Utility, Transmission Licensee or any other person engaged in the business of transmission or supplying energy to the public, any of the powers which the telegraph authorities possess under the Indian Telegraph Act, 1885 for the placing of electric supply lines.
15. That apart, Section 28 of the Electricity (Supply) Act, 1948, provided for preparation of a sanctioned scheme relating to the laying of transmission lines by a generating company and under Section 29 every such scheme estimated to involve a capital expenditure exceeding such sum as may be fixed by Central Government shall be submitted to the Central Electricity Authority constituted under the said Act for its concurrence. That apart, sub-section (2) of Section 29 mandated that the generating company shall cause such scheme to be published in the Official Gazette of the State and in local news papers granting not less than two months time to the persons interested to make representations on such scheme. Section 42 of the Electricity (Supply) Act, 1948, further provided that where a provision is made in a sanctioned scheme for placing electric supply lines, notwithstanding anything contained in Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910, the State Electricity Board shall have all the powers which the telegraph authority possesses under Part-III of the Indian Telegraph Act, 1885 with regard to a telegraph established by the Government for placing of any wires, poles and etc., for the transmission of electricity. The proviso to Section 42 (1) further made it clear that where a sanctioned scheme does not make a provision as aforesaid, all the provisions of Sections 12 to 19 of the Indian Electricity Act, 1910 shall apply. As regards the scope of Section 42 of the Electricity (Supply) Act, 1948, the Andhra Pradesh High Court, at Paragraphs 17 and 18, has considered its earlier decisions, as follows:
17. So far as the scope of Section 42 of the Electricity (Supply) Act, 1948 is concerned, it was held by this Court in Bhaskara Housing (P) Ltd., Hyderabad Vs. APSEB, Hyderabad [1998 (6) ALT 436 = 1998 (6) ALD 781, as under:
A cumulative reading of provisions of sub-section.(1) of Section.42 of the Electricity(Supply) Act,1948 with that of proviso make it apparently clear that if the sanctioned scheme provides for any of the things contemplated under Sections.12 to 16, 18 and 19 of the Indian Electricity Act, 1910, the officers of the Board can exercise similar powers conferred upon the authorities of the Telegraph Department under Part-III of the Indian Telegraph Act,1885. In the instant case, since the sanctioned scheme provides for laying of lines and construction of towers, it should be held that the Board and its officers have the power to invoke the provisions of Part-III of the Indian Telegraph Act, 1885 and, therefore, prior consent is not necessary as required under Section 12 of the Indian Electricity Act, 1910.
18. An identical question was again considered in B.Krishna Mandadi Vs. Power Grid Corporation of India Limited, Hyderabad [2002 (1) LS 332] and it was held as under :
A generating company engaged in generation, transmission and supply of electricity is empowered under the provisions of Electricity (Supply) Act, 1948 to lay electric poles, construct transmission towers on any private land without giving any notice and without causing damage to the property provided there is a scheme published as required under Section 28. Even while erecting transmission lines, if any damage is caused, by reason of Section 10 of the Telegraph Act read with Section 42 (1) and (2) of the Electricity (Supply) Act, 1948, a generating company has to pay compensation for the damage sustained by the owners of the land or owners of the crops. As regards the aspect of consent from the owner or occupier, at Paragraph 19, the Andhra Pradesh High Court, further held as follows:
From the ratio laid down in the above decisions, it is clear that prior to the enactment of Electricity Act, 2003, consent of the owner or occupier was necessary where there was no authorization under Section 51 of the Indian Electricity Act, 1910. Similarly, where a sanctioned scheme is published as required under Section 28 read with Section 42 of the Electricity (Supply) Act, 1948, transmission towers or lines can be laid on any private land without giving any notice and without causing damage to the property. However, if any damage is caused, compensation shall be paid for the damage sustained as provided under Section 10 of the Indian Telegraph Act, 1885. After considering the provisions to Sections 67 and 164 of the Electricity Act, 2003, the Court, at Paragraph 20, further held as follows:
Both the Indian Electricity Act, 1910 and the Electricity (Supply) Act, 1948 stood repealed under the Electricity Act, 2003 which came into force with effect from 10.06.2003. Under the new Act i.e., Electricity Act, 2003 though there is no provision with regard to preparation and sanctioning of any scheme relating to establishment of generating stations, sub-stations or transmission lines as required under Section 28 of the repealed Electricity (Supply) Act, 1948, provisions similar to Sections 12 and 51 of the Indian Electricity Act, 1910 have been incorporated under Section 67 and Section 164 respectively. On the aspect, as to whether, consent from the landowner is required, as provided for, under Section 12 of the Act, when the appropriate Government issued an order, under Section 164 of the Electricity Act, 2003, finally, at Paragraph 22, the Andhra Pradesh High Court held as follows:
"23. Admittedly no such Rules have been made till today. What shall be done till such Rules are made is provided under Section 185 of the Electricity Act, 2003 and the same may be extracted hereunder :
S. 185 Repeal and saving (1) Save as otherwise Provided in this Act, the Indian Electricity Act, 1910 (9 of 1910), the Electricity (Supply) Act, 1948 (54 of 1948) and the Electricity Regulatory Commissions Act, 1998 (14 of 1998) are hereby repealed. (2) Notwithstanding such repeal,-
(a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission, authorisation or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act;
(b) the provisions contained in sections 12 to 18 of the Indian Electricity Act, 1910 (9 of 1910) and rules made thereunder shall have effect until the rules under sections 67 to 69 of this Act are made; ( emphasis supplied )
(c) the Indian Electricity Rules, 1956 made under S.37 of the Indian Electricity Act,1910 (9 of 1910) as it stood before such repeal shall continue to be in force till the regulations under section 53 of this Act are made.
(d) all rules made under sub-section (1) of S.69 of the Electricity (Supply) Act, 1948 (54 of 1948) shall continue to have effect until such rules are rescinded or modified, as the case may be;
(e) all directives issued, before the commencement of this Act, by a State Government under the enactments specified in the Schedule shall continue to apply for the period for which such directions were issued by the State Government.
(3) The provisions of the enactments specified in the Schedule, not inconsistent with the provisions of this Act, shall apply to the States in which such enactments are applicable.
(4) The Central Government may, as and when considered necessary, by notification, amend the Schedule.
(5) Save as otherwise Provided in sub-section (2), the mention of particular matters in that section, shall not be held to prejudice or affect the general application of S.6 of the General Clauses Act, 1897 (10 of 1897), with regard to the effect of repeals.
24. In view of Section 185 (2) (b) of the Electricity Act, 2003, it is not in dispute that the provisions contained in Sections 12 to 18 of the Indian Electricity Act, 1910, still govern the field since as on today no rules are made under Section 67 (2) of the Electricity Act, 2003.
25. Therefore, the legality or otherwise of the impugned action of the respondents in proposing to erect the poles for two Nos.400 KV Double Circuit Lines through the lands of the petitioners has to be examined in the light of Sections 67 of the Electricity Act, 2003 read with Sections 12 to 18 of the Indian Electricity Act, 1910 and Section 164 of the Electricity Act, 2003. After considering Section 12 of the Old Act, 1910, at Paragraph 27 to 29 and 31 to 35, the Andhra Pradesh High Court held as follows:
27. A reading of Section 12 (2) of the Indian Electricity Act, 1910 makes it clear that the acts specified under Section 12 (1) cannot be carried out without the consent of the concerned owner or occupier. However, the question that arises for consideration is whether Section 12 of the Indian Electricity Act, 1910 is applicable to the case on hand.
28. On an analysis of Section 67 and Section 164 of the Electricity Act, 2003, it is apparent that whenever an order is passed by the appropriate Government in exercise of the powers under Section 164 of the Electricity Act, 2003 for the placing of electric lines for the transmission of electricity, conferring upon any public officer, licensee or any other person engaged in the business of supplying electricity any of the powers which the telegraph authority possesses under the Indian Telegraph Act, 1885 with respect to the placing of telegraphic lines and posts for the purposes of a telegraph established by the Government, such public officer, licensee or any other person engaged in the business of supplying electricity stands in the same position as regards the exercise of power as the telegraph authority under the Indian Telegraph Act, 1885. However, in the absence of such an order under Section 164 of the Electricity Act, 2003, if a licensee i.e., a person who has been granted a licence to transmit electricity or to distribute electricity under the Act, proposes to place electric lines, electric plant or other works necessary for transmission or supply of electricity, Section 67 of the Electricity Act, 2003 comes into operation and consequently it is mandatory to obtain the consent of the concerned owner or occupier as required under Section 12 (2) of the Indian Electricity Act, 1910.
29. In the instant case, Section 164 of the Electricity Act, 2003 has admittedly been invoked and in exercise of the powers conferred thereunder the Government of A.P. conferred on the A.P. Transco the powers which the telegraph authority possess under the Indian Telegraph Act, 1885. Consequently, Section 12 of the Indian Electricity Act, 1910 has no application and the A.P. Transco, for the purpose of placing the electric supply lines in the private lands, is competent to exercise all the powers possessed by the telegraph authority under the Indian Telegraph Act, 1885.
.....
31. As could be seen, Section 10 of the Indian Telegraph Act, 1885 empowers the telegraph authorities to place and maintain the telegraph lines under, over, along or across and posts in or upon any immovable property. However, the said power 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. The proviso (d) to Section 10 of Indian Telegraph Act, 1885 further made it clear that while exercising powers conferred under Section 10 the Telegraph authority shall do as little damage as possible and when it has exercised those powers in respect of any property other than the property under the control or management of the local authority shall pay full compensation to all the persons interested for any damage sustained by them by reason of exercise of the said powers. It is also relevant to note that as per proviso (b) of Section 10 of the Indian Telegraph Act, 1885, 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 lines or posts.
32. Thus it is clear that the powers under Section 10 of the Indian Telegraph Act, 1885 can be exercised without acquiring the land in question, however, the only right that can be exercised is the right of user in the property and for the purposes mentioned in that Section.
33. For the aforesaid reasons, I am of the opinion that Section 164 of the Electricity Act, 2003 read with Section 10 of the Indian Telegraph Act, 1885 recognized the absolute power of the A.P. Transco to proceed with placing of electric supply lines or electric posts for the transmission of electricity on or over the private lands subject to the right of the owner/occupier to claim compensation if any damage is sustained by him by reason of placing of such electric supply lines. In other words, neither the acquisition of the lands is necessary nor there is any need for consent of the owner or occupier.
34. It is also relevant to note that since Sections 28 or 42 of the Electricity (Supply) Act, 1948 are not saved under Section 185 of the Electricity Act, 2003, there is no need to publish a sanctioned scheme nor it is necessary to give any notice by publication in local news papers as required under Section 29 (2) of the Electricity (Supply) Act, 1948. In spite of the same, the notification dated 14.07.2008 was published in the A.P. Gazette as well as two local dailies inviting objections from the interested / aggrieved persons and no objections were received from anyone.
35. In the circumstances, the impugned action of the respondents cannot be held to be arbitrary, illegal or contrary to the provisions of the Electricity Act, 2003 on any ground whatsoever. Hence, no Mandamus can be issued restraining the respondents from proceeding with the erection of poles and transmission lines through the lands of the petitioners. However, this shall not preclude the petitioners to claim the compensation by working out the appropriate remedy as available under law in case any damage is sustained to their property.
48. In W.P.No.5827 (W) of 2009, dated 25.08.2009 [Calendula Realtors Private Limited v. CESC Limited], the question that was posed to Calcutta Court was, on being resisted by the petitioner therein, whether the licencee CESE Ltd, was required to obtain permission of the District Magistrate to proceed further for installation of the Overhead Transmission Line. In the said case, in terms of Section 164 of the Electricity Act, 2003, the State Government has authorised CESC, to exercise all powers vested in the telegraph authority, under Part III of the Indian Telegraph Act, 1885. It was contended that the order of the Government passed under Section 164 of the Electricity Act, authorised to exercise all the powers in the Telegraph Authority under Part III of the Indian Telegraph Act, 1885, in respect of the electrical lines and electrical plants. In exercise of the powers conferred by Section 164 of the Electricity Act, 2003, CESC has been authorized to exercise all the powers vested in the Telegraph Authority under Part-III of the Indian Telegraph Act, 1885, in respect of the electrical lines and electrical plant established or maintained, or to be so established or maintained for the supply of electricity or for the purpose of telephonic or telegraphic communication necessary for the proper co- ordination of the works within the licensed area of the CESC. The above authorization was subject to compliance by the CESC to the requirements of the provisions of the Electricity Act, 2003 and the rules made thereunder.
49. In the above reported case, on the aspect of natural justice to the property owner, the argument advanced by the learned counsel for the parties therein, is as follows:
Next, he argued that providing natural justice to a property owner that is contemplated in terms of provisions contained in Section 16(1) or Section 17 of the 1885 Act has been provided to the petitioner even before commencement of the work in compliance with the said authorization and the order of approval issued by the State Government on October 30, 2006 in pursuance whereof the said notification was issued. If right to resist/obstruct in terms of Section 16(1) of the 1885 Act is to be recognized, resistance/obstruction would be a never ending process. It may so happen that between the date of publishing the said notification and date of exercise of powers under Section 10 of the 1885 Act, transfer of property by sale may be effected and the transferee would then claim a right either to resist/obstruct the work when trespass is committed and/or even after completion of the project, relocation or removal could be asked for. This, according to him, cannot be the intent of the statutory provisions particularly when a project of immense public importance is involved. In support of his contention that prior consent of the property owner is not required to be obtained when the licensee intends to lay lines or place towers over/on private property,
50. The further submission made by the learned counsel for the petitioner therein, in the above case was that the special terms imposed by the State Government does not mean that the right envisaged by Section 16(1) of the 1885 Act is done away with and that the same does not also, contemplate non-compliance of Sections 10 and 16 thereof. It has been further argued that the provisions of the 1885 Act cannot have truncated application; either it applies as a whole or not at all. It has been submitted that in terms of Section 17 of the 1885 Act, a property owner even has the right to claim relocation of lines or poles and since the District Magistrate has even the power to direct removal of lines or posts to any other part of the property to a higher or lower level or to direct alteration of its form, it is too late in the day to contend that so far as erection of towers by CESC is concerned, the petitioner would have no right at all.
51. According to the learned counsel for the petitioner therein, all the three provisions i.e. Sections 10, 16 and 17 of the 1885 Act would have application. According to him, the petitioner has a right to resist, which has been exercised and therefore CESC must comply with the statutory provision i.e. obtain the permission of the District Magistrate before it proceeds further to excavate land and/or dig holes for laying foundation of the tower proposed to be erected on plot No.2278.
52. With reference to the West Bengal Works of Licence Rules, 2006, a further contention has been made in the above unreported case that even in terms thereof, a licencee cannot encroach upon the private property, without the consent of the owner and that the permission of the officers in rule 3 must be obtained, prior to the commencement of work. After considering the relevant statutory provisions and a plethora of judgments, the Calcutta High Court that, The scheme of the 1885 Act appears to be that while the telegraph authority exercises the power to place and maintain a telegraph line, under, over, along or across, and posts under or upon, any immovable property, it is under an obligation to do as little damage as possible and it shall be liable to pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers. It seems to be settled law that by necessary implication compliance with principles of natural justice while a telegraph authority exercises power conferred by Section 10 of the 1885 Act is excluded and consent of the landowner of the immovable property on which posts/poles are required to be erected is not a condition precedent. It may be so, in a given case, that the authority to commit trespass is non-existent. It is in such a situation, the legislature intended that once the telegraph authority is resisted or obstructed while it exercises powers conferred by Section 10 in respect of a property referred to in clause (d) thereof that the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them. As has rightly been held in Bharat Plywood (supra), the expression "shall be permitted to exercise them" is significant. The District Magistrate himself has no power to authorize trespass but he has power to allow/permit trespass. That would obviously depend on his satisfaction that the telegraph authority has been conferred power in terms of the Section 4 of the 1885 Act. In my reading of the 1885 Act, however, the choice of the property for the purpose of drawing the line or erection of tower made by the telegraph authority under Section 10 of the 1885 Act cannot be interfered with by the District Magistrate while he exercises power envisaged in Section 16(1) thereof. If that power is to be conceded, it would militate against absolute power to trespass conferred by Section 10 in terms of authorization under Section 4. I am inclined to hold that the District Magistrate's enquiry would be a limited one, - he must satisfy himself that requisite permission has been given to the authority mentioned in Section 10 to discharge the functions enumerated thereunder and that resistance or obstruction which a property owner may raise, on a reasonable construction of the relevant statutory provisions [Section 10 (d) read with Section 16(1)], must be confined to the question as to whether the licensee has authority to exercise Section 10 powers or not, and Section 16 can never be read in a manner to authorize a property owner to stall the entire programme of installation of posts and lines. It would clearly be contrary to the spirit of the 1885 Act to accept a contention that a land-owner would have the right of seeking removal or alteration of a telegraph line after execution of the work has commenced even though he may not have any such right before actual commencement of execution.
Any discussion on the topic, in my view, would be incomplete if I do not refer to the observation of another Full Bench of the Kerala High Court in Mammoo vs. State of Kerala, reported in 1979 Kerala Law Times 801. In paragraph 13 of the decision, it has been observed thus :
"13. The scheme of the Indian Telegraph Act may now be adverted to. S.10 of the Act, as already indicated, gives the Telegraph authority power to place and maintain telegraph line in or upon any immovable property. The proviso indicates that such power is to be exercised only for telegraph established or maintained by the Central Government or to be so established and maintained, that the Central Government acquires only the right of user, that in the case of local authority the exercise has to be with permission of that authority and that in the exercise of such power as little damage as possible is to be caused. These are in the nature of restrictions in the exercise of the power and do not restrict the discretion to determine the property over which the lines are to pass or posts are to be erected. That discretion is in the telegraph authority. If he is resisted or restricted he seeks permission from the District Magistrate whose adjudication does not cover the question whether line is to be drawn over any specific item of property or whether posts are to erected or not in any specific item of property. S.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 S.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 S.16(1) provides that in granting permission to the Telegraph Authority the District Magistrate is to exercise his discretion.
The above observations were considered necessary to be made because relying on the decision in Bharat Plywood (supra) it was contended on behalf of the petitioner that the District Magistrate functioning under Section 16(1) was required to reach a judicial decision. After considering contents of paragraph 23 of Bharat Plywood extracted supra, the Full Bench further observed, "We cannot read this to mean that in reaching the decision the District Magistrate acts as a Court or that his proceedings are judicial proceedings."
The law laid down in Mammoo (supra) has been followed in Kunjulakshmi vs. District Magistrate, reported in 1986 Kerala Law Times 1320. I share the views expressed by the Kerala High Court in these decisions, and I also agree with the dicta in Scindia Potteries v. Purolator India Ltd., AIR 1980 Del 157 that power under Section 10 is absolute, that Section 16 of the 1885 Act is in aid of the discharge of statutory duty and exercise of statutory power postulated by Section 10, and that Section 16 cannot be regarded as a condition precedent to the exercise of that power while disagreeing with the view expressed in Bharat Plywood (supra) to the contrary.
Relying on the decision in Uttar Pradesh State Electricity Board, Varanasi & Ors., v. XIth Additional District Judge, Varnasi & Ors., reported in 1996 AIHC 3936 (Allahabad), I further hold that apart from compensation on account of trespass and damage to property, a property owner would not be entitled to anything more in case a licensee exercises power to erect towers/lay down overhead line for transmission of electricity. Section 10(d) read with Section 16(1) makes the intent of the statutory provisions clear.
The requirement of complying with natural justice at the pre-execution stage, which is excluded by necessary implication and limited application thereof at the stage contemplated in Section 16(1) of the 1885 Act, has been made a condition precedent in the present case by the State Government while it issued written order under Section 68 of the 2003 Act, thereby making it obligatory for CESC to hear the affected persons if they intended to object in response to the said notification published in the newspapers. It would not be fair, just and reasonable to assume that when power possessed by a telegraph authority under Part III of the 1885 Act is conferred on a licensee engaged in transmission of electricity, that would necessarily carry with it powers exercisable by a property owner to resist/obstruct once power is exercised in terms of Section 10.
53. In Ramakrishna Poultry v. R.Challappan reported in 2009 (16) SCC 743, the appellant therein filed a Writ Petition before the High Court, seeking for a re-alignment of the transmission lines, so that, either his poultry sheds could be avoided or the height of the tower/pylon could be raised. The main thrust of the challenge was with regard to the jurisdiction of the District Magistrate, to direct change of alignment of a transmission line, under Section 16 of the Telegraph Act, in he light of Section 51 of The Indian Electricity Act, 1910, which is equivalent to Section 164 of the Electricity Act, 2003, empowering the appropriate Government to confer on any Authority or person engaged in the business of supplying electricity under the Act, any of the powers, which the Telegraph Authority possesses under the Telegraph Act, with respect to placing of telephonic lines or posts for the purpose of a telephone established or maintained by the Government or to be so established or maintained.
54. In the above reported case, on behalf of the appellant therein, it has been submitted that the Hon'ble Division Bench went wrong in holding that under Section 16 of the Telegraph Act, the District Magistrate had no power to change the alignment and that the Hon'ble Division Bench has failed to notice that the order of the District Magistrate was not under Section 16, but under Section 17(3) of the said Act.
55. Another ground of challenge in the above reported case was that the impugned order of the Hon'ble Division Bench was contrary to the earlier order dated 31st January, 2007, directing the Corporation to approach the District Magistrate concerned, in each case for permission to deal with the objections raised by the petitioners therein, with the further direction that the said District Magistrate would consider the objections, and pass orders, in accordance with the provisions, indicated in the said order.
56. It has also been urged in the above unreported case that since the same had become final between the parties, there was no scope for any contrary order to be passed, as has been done in terms of the impugned order of the Hon'ble Division Bench in Writ Appeal No.522/08, holding that under Section 16 of the Telegraph Act, the District Collector is not empowered to change the alignment.
57. It has been further contended that as application submitted by the appellant therein, being one under Section 17 of the Telegraph Act, it is within the power and jurisdiction of the District Magistrate to direct a small deviation of the transmission line over the appellant's own lands, the expenses wherefor would be borne by the appellant, so as to avoid its passing directly over the poultry sheds.
58. Per contra, it has been contended that the Government of India, in exercise of its powers conferred under Section 164 of the Electricity Act of 2003, have passed an order, authorizing the Corporation to exercise all the powers vested in the Telegraph Authority, under Part III of the Indian Telegraph Act, 1885, in respect of electrical lines and electrical plants established or maintained, or to be so established or maintained for transmission of electricity or for the purpose of telephonic or telegraphic communication necessary for the proper coordination of work. After considering the rival contentions of both sides, at Paragraph 27, the Apex Court, held as follows:
27. However, what goes against the case of the Appellant-Company is the fact that the purchases of the land for starting the poultry business and the erection of the poultry sheds were effected at a point of time when the process of identifying the route of the transmission lines was already in progress and survey work was being undertaken. We find it difficult to accept that the Appellant- company did not have knowledge of the ongoing project, which is for the benefit of a large number of people of the area as against the interest of a single individual. In view of the objections on behalf of the Power Grid Corporation that the deviation in the transmission lines, as suggested on behalf of the Appellant-company, could not be practically achieved, we are left with the next best solution, i.e., to increase the clearance between the lowest point of the sag of the transmission cable and the top most portion of the appellant's poultry sheds. It should not also be forgotten that from the point of the sag on both sides the cable moves upwards and the clearance becomes even greater on both sides of the lowest spot. During the hearing we had asked Mr. Tripathi to confirm with the Engineers of the Power Grid Corporation to explore the possibility of raising the height of the towers even further to lessen the damage, if any, that may be caused to the egg laying capacity of the layers in the appellant's poultry farm.
59. In K.Subba Raju v. Executive Engineer, TLC Division, APTRANSCO and Ors., reported in 2010 (4) ALD 358 = 2010 (4) ALT 758 = 2010 (2) APLJ 243, owner of the land, being aggrieved by the rejection of the request of the petitioner to lay the underground cable, and against the action of TRANSCO to proceed with the overhead lines, over the property of the petitioner, has sought for a Mandamus. Having regard to the position that no rules have been framed under Section 67(c) of the Electricity Act, 2003, at Paragraphs 4 to 7, the Andhra Pradesh Court, summed up the arguments, as follows:
4. The powers of the authority under the Electricity Act, 2003 for erection of poles and transmission lines on private land was considered by this Court in detail in G.V.S. RAMA KRISHNA v. A.P. TRANSCO, HYDERABAD [2009 (3) ALT 502] and it was held that Section 164 of the Electricity Act, 2003 read with Section 10 of the Indian Telegraph Act, 1885 recognized the absolute power of the A. P. TRANSCO to proceed with placing of electric supply lines or electric posts for the transmission of electricity on or over the private lands subject to the right of the owner/occupier to claim compensation if any damage was caused by reason of placing of such electric supply lines.
5. It is to be noticed that Section 67 (1) of the Electricity Act, 2003 empowers a licensee to carry out works to lay down and place electric lines, electrical plant and other works. Section 67 (2) further provides that the appropriate Government may, by rules made by it, specify the cases and circumstances in which the consent in writing of the appropriate government, local authority, owner or occupier as the case may be shall be required for carrying out the said work.
6. While observing that no such rules were made by the appropriate Government in exercise of rule making power under Section 67 (2) of the Electricity Act, 2003, this Court in G.V.S. RAMA KRISHNA'S case (cited supra) held that in terms of the Repeal and Savings clause under Section 185 (2) (b) of the Electricity Act, 2003, the provisions contained in Sections 12 to 18 of the repealed Indian Electricity Act, 1910 continue to govern the field and consequently in the absence of an order under Section 164 of the Electricity Act, 2003 the consent of the owner or occupier under Section 12 (1) of the repealed Act was essential.
7. The learned counsel appearing for the respondents, while relying upon the above decision and while drawing the attention of this Court to the contents of the counter-affidavit, wherein it was explained that G.O.Ms.No.115, dated 7.10.2003 was issued in exercise of the powers conferred under Section 164 of the Electricity Act, 2003, conferring the powers on the AP TRANSCO, submitted that the ratio laid down in G.V.S. RAMA KRISHNA'S case (cited supra) squarely applies to the present case and therefore the impugned proceedings cannot be held to be vitiated merely on the ground that consent of the petitioners was not obtained. After considering the submissions, at Paragraphs 9 to 12, held as follows:
9. Having carefully considered the above submissions, I do not find any substance in any of the contentions raised by the learned counsel for the petitioner. It is true that the Works of Licensees Rules, 2006 made under Section 67 (2) of the Electricity Act, 2003 were not taken into consideration in G.V.S. RAMA KRISHNA'S case (cited supra) and this Court proceeded on the basis that no Rules were made under Section 67 (2) of the Electricity Act, 2003. While observing that as per Section 185 (2) (b) of the Electricity Act, 2003, the provisions contained in Section 12 (2) of the repealed Indian Electricity Act, 1910 under which the consent of the owner or occupier was essential, shall have effect until the Rules are made under Section 67 of the Electricity Act, 2003, this Court made it clear that such consent of the owner or occupier was necessary only in the absence of an order under Section 164 of the Electricity Act, 2003.
10. It is also relevant to note that in G.V.S. RAMA KRISHNA'S case (cited supra), Section 164 of the Electricity Act, 2003 was invoked conferring on the AP TRANSCO the powers which the Telegraph Authority possess under the Indian Telegraph Act, 1885. In the circumstances, on facts it was concluded in G.V.S.RAMA KRISHNA'S case (cited supra) that Section 12 of the Indian Electricity Act, 1910 which provided for the consent of owner / occupier had no application and therefore the action impugned was neither arbitrary nor illegal.
11. The provisions of the Works of Licensees Rules, 2006 made under Section 67 (2) of the Electricity Act, 2003 are in pari materia to Section 12 of the repealed Indian Electricity Act, 1910. Admittedly the Works of Licensees Rules, 2006 are applicable only where the works have been taken up by the licensee under Section 67 (1) of the Electricity Act, 2003. As clarified in G.V.S.RAMA KRISHNA'S case (cited supra), Section 67 (1) of the Electricity Act, 2003 as well as the rules made under Section 67 (2) govern the field only in the absence of an order under Section 164 of the Electricity Act, 2003. In a case where an order is passed by the appropriate government in exercise of the powers under Section 164 of the Electricity Act, 2003, the licensee is competent to exercise the powers which the Telegraph Authority possessed under the Indian Telegraph Act, 1885 with respect to the placing of telegraphic lines and posts for the purpose of a telegraph established by the Government. Since the powers under Section 10 of the Indian Telegraph Act, 1885 can be exercised without acquiring the land in question, once an order is passed by the appropriate government under Section 164 of the Electricity Act, 2003, the public officer, licensee or any other person engaged in the business of supplying electricity shall be entitled to proceed with the works of placing the electric lines without acquiring the land in question.
12. It is not in dispute that in the instant case a notification has been issued invoking Section 164 of the Electricity Act, 2003. Therefore, Section 67 (1) of the said Act or the Works of Licensees Rules, 2006 made under Section 67 (2) are not attracted and as per Section 164 of the Electricity Act, 2003 read with Section 10 of the Indian Telegraph Act, 1885, the respondents can proceed with the placing of electric supply lines or electric poles for the transmission of the electricity on or over the lands of the petitioner without acquiring the same and there is also no need to obtain his consent.
60. In Ajith K.N., v. State of Kerala [W.P.(C)No.3278 of 2010 (H), dated 18.05.2010], the Kerala High Court, observed as follows:
10. With regard to the legal position, it is very much evident that the exercise of powers of the telegraph authorities by the officers authorised by notification issued by the Government, under Section 51 of the Electricity Act, 1910 (similar to the relevant provisions in the Electricity Act, 2003) stands very much settled and it does not amount to any unreasonable restriction on the right to hold the property conferred under Article 19(1)(f) of the Constitution of India, as made clear by the Full Bench of this Court in 1970 KLT 872.
61. In Himmatbhai Vallbhbhai Patel v. Chief Engineer (Project), Gujarat Energy Transmission reported in AIR 2011 Guj. 405, the objection of the petitioner therein was that poles were sought to be erected on his agricultural lands and that no consent was obtained, under Rule 3 of the Works of Licencee's Rules, 2006, framed in accordance with Section 67 of the Act. The Writ Petition was dismissed. The contentions raised in the appeal, as formulated by the Hon'ble Division Bench, are as follows:
(a) that the action of the respondents in proposing to erect polls for laying 66 K.V. overhead electricity lines passing through the agricultural land of the appellant is arbitrary, illegal and in violation of the provisions of the Electricity Act, 2003. The main bone of contention in this regard was to the effect that the respondents are bound to initiate appropriate proceedings for acquisition of the lands and the consent of the owners ought to have been obtained with prior notice before entering into their property;
(b) the second contention was to the effect that public notice dated 29th July 2010 published by the respondents in this regard makes reference of the provisions of Repeal Act and that names of the villages where lands are situated and/or their survey numbers are not mentioned therein and, therefore, the notice is of no consequence. The contention was that the area where the land of the appellant herein is situated is not mentioned in the notification. To put it more elaborately, the respondents cannot undertake works in that area which are not included, mentioned in the notice dated 29th July 2010.
(c) the third contention before the learned Single Judge was to the effect that respondent no.3 Company is a transmission company and is not engaged in the business of supply of electricity under the Electricity Act, 2003, and that, therefore, cannot undertake the process of laying overhead electricity lines, without obtaining consent from the owner of the property, in view of the provisions contained under Rule 3 of "Works of Licensees Rules, 2006" framed in exercise of powers conferred by Section 67 of the Act, which, inter alia, provides that the licensee may carry out works with the prior consent of the owner for occupation of any particular building or land, however, any prior consent of the owner has not been taken by the respondent Company. After extracting the public notice issued under Section 29 and 42 of the Electricity Act, 1948, at Paragraphs 10 and 11, the Hon'ble Division Bench, discussed the scope of Section 12 of the Indian Electricity Act, 1910 and Section 28 of the Electricity (Supply) Act, 1948, as hereunder, 10. As per Section 12 of the Indian Electricity Act, 1910, the consent of the local authority or of the concerned owner or occupier is necessary to enable the licensee to lay down or place any electric supply line or other work in, through or against any building or on, over or under any land not dedicated to public use whereon any electric supply line or work has not already been lawfully laid down by such licensee. Under Section 51 of the Electricity Act, 1910, it was permissible for the Government to confer upon any public officer, Transmission Utility, Transmission Licensee or any other person engaged in the business of transmission or supplying energy to the public, any of the powers which the telegraph authorities possess under the Indian Telegraph Act, 1885 for the placing of electric supply lines.
11. That apart, Section 28 of the Electricity (Supply) Act, 1948, provided for preparation of a sanctioned scheme relating to the laying of transmission lines by a generating company and under Section 29 every such scheme estimated to involve a capital expenditure exceeding such sum as may be fixed by Central Government shall be submitted to the Central Electricity Authority constituted under the said Act for its concurrence. That apart, Section (2) of Section 29 mandated that the generating company shall cause such scheme to be published in the Official Gazette of the State and in local news papers granting not less than two months time to the persons interested to make representations on such scheme. Section 42 of the Electricity (Supply) Act, 1948, further provided that where a provision is made in a sanctioned scheme for placing electric supply lines, notwithstanding anything contained in Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910, the State Electricity Board shall have all the powers which the telegraph authority possesses under Part-III of the Indian Telegraph Act, 1885 with regard to a telegraph established by the Government for placing of any wires, poles and etc., for the transmission of electricity. The proviso to Section 42 (1) further made it clear that where a sanctioned scheme does not make a provision as aforesaid, all the provisions of Sections 12 to 19 of the Indian Electricity Act, 1910 shall apply. After considering the judgment in Bharat Plywood and Timber Products Private Ltd., v. Kerala State Electricity Board, Trivandrum and others reported in AIR 1972 Ker. 47 (FB),Bhaskara Housing (P) Ltd., Hyderabad Vs. APSEB, Hyderabad [1998 (6) ALT 436 = 1998 (6) ALD 781 and B.Krishna Mandadi Vs. Power Grid Corporation of India Limited, Hyderabad [2002 (1) LS 332], at Paragraphs 15 and 16, in Himmatbhai Vallbhbhai Patel's (cited supra), the Court observed as follows:
15. From the ratio laid down in the above decisions, with which we are in complete agreement, it is clear that prior to the enactment of Electricity Act, 2003, consent of the owner or occupier was necessary where there was no authorization under Section 51 of the Indian Electricity Act, 1910. Similarly, where a sanctioned scheme is published as required under Section 28 read with Section 42 of the Electricity (Supply) Act, 1948, transmission towers or lines can be laid on any private land without giving any notice and without causing damage to the property. However, if any damage is caused, compensation shall be paid for the damage sustained as provided under Section 10 of the Indian Telegraph Act, 1885.
16. Both the Indian Electricity Act, 1910 and the Electricity (Supply) Act, 1948 stood repealed under the Electricity Act, 2003 which came into force with effect from 10.06.2003. Under the new Act i.e., Electricity Act, 2003 though there is no provision with regard to preparation and sanctioning of any scheme relating to establishment of generating stations, sub-stations or transmission lines as required under Section 28 of the repealed Electricity (Supply) Act, 1948, provisions similar to Sections 12 and 51 of the Indian Electricity Act, 1910 have been incorporated under Section 67 and Section 164 respectively. After extracting Section 67 and 184 of the Electricity Act, 2003, the Court, further observed as follows:
As could be seen, though Section 67 (1) of the Electricity Act, 2003 is identical to Section 12 (1) of, the Indian Electricity Act, 1910, Section 67 (2) of the Electricity Act, 2003 varies from Section 12 (2) of the repealed Indian Electricity Act, 1910. Section 67 (2) does not say that the consent of the owner or occupier is mandatory but the matters where the property of other persons is affected by the works of the licensee have been left to be provided by the appropriate Government by way of Rules in exercise of its rule making power. Taking note of the fact that no rules have been framed under Section 67 of the Act, 2003, the Court, after extracting Section 185, repeal and the saving provision, and having regard to the statutory position, as per Section 185(2)(b) of the Electricity Act, 2003, Sections 12 to 18 of the Indian Electricity Act, 1910, would still govern the field, the Court proposed to examine the correctness of the action of the respondent in erecting the poles, in the light of Section 67 of the Electricity Act, 2003, read with Sections 12 to 18 of the Indian Electricity Act, 1910 and Section 164 of the Electricity Act, 2003 and after extracting paragraphs 22 to 27 from G.V.S.Ramakrishna's case, the Gujarat High Court, at Paragraph 30, held as follows:
30. We have exhaustively dealt with this issue in the above referred paragraphs and we have explained as to why consent is not necessary. The paragraph which has been relied upon by the learned counsel of the above referred judgment itself makes it clear that principles of natural justice can be read into a statute which is silent unless a statutory provision specifically or by necessary implications dispenses with the principles of natural justice. These observations are important.
On the aspect, as to prior notice and consent, at Paragraph 31, the Court held as follows:
"31. As explained earlier that when the Electricity Board exercises power under Section 164 of the Electricity Act read with Section 10 of the Telegraphs Act, they are not acquiring any land, they are only making use of the land for the purpose of laying electric lines, for which, full compensation is given for the damage caused. It is clear therefrom that no notice is required to the owner before laying the polls or constructing any tower, nor any consent is required from them.
As regards the contention, as to whether, there is any need to give a detailed public notice and in the event of failure to give all the particulars in such notice, is fatal to the execution of the work, the Court at Paragraph 32, held as follows:
32. It is also relevant to note that since Section 28 or 42 of the Electricity (Supply) Act, 1948 are not saved under Section 185 of the Electricity Act, 2003, there is no need to publish a sanctioned scheme nor it is necessary to give any notice by publication in local news papers as required under Section 29 (2) of the Electricity (Supply) Act, 1948. In spite of the same, the notification dated 29-7-2010 was published in the Gujarat Government Gazette as well as local dailies inviting objections from the interested/aggrieved persons and no objections were received from anyone. While doing so, the Court in Himmatbhai's case (cited supra), considered a portion of the judgment in S.M.Rao v/s. State of Karnataka, reported in AIR 1999 Karnataka 475, dealing with public notice and consent, which is extracted hereunder:
35. We may refer to one judgment rendered by the Karnataka High Court in this regard in the matter of S.M.Rao v/s. State of Karnataka, reported in AIR 1999 Karnataka 475. In paragraphs 17 and 20, the High Court observed as under:
"17. The next contention is that Section 28 notification has not been duly published. As said earlier it is not an acquisition proceeding. 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.
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."
62. In P.Santhana Raj v. The Chief Engineer, Non-Conventional Energy Source, Chennai [W.P.(MD)No.8844 of 2011, dated 08.11.2011], The Hon'ble Mr. Justice Ramasubramanian, considered a case, where the landowners opposed to the erection of poles, because their consent was not acquired, as required under Section 12 of the Indian Electricity Act, 1910. While considering the arguments of the petitioners therein that, as per Section 185(2)(b) of the Electricity Act, 2003, the provisions of Sections 12 to 18 of the Indian Electricity Act, 1910, would continue to operate, until the Rules under Sections 67 to 69 of the Electricity Act, 2003, are made and that therefore, consent of the owners of the land, ought to have been obtained by the authority, The Hon'ble Judge, after considering the entire gamut of law on the subject, at Paragraph 40, held as follows:
40. A combined reading of Section 67 (2) (a) to (d) of the 2003 Act together with (I) Rule 3 (1) and 3 (4) of the Works of Licensees Rules 2006 (II) Section 164 of the 2003 Act and (III) Sections 10 and 16 of the Telegraph Act, 1885, would lead us to the following conclusions:-
(i) In normal circumstances, the licensee would require the prior consent of the owner or occupier of any land, by virtue of Rule 3(1)(a) of the Works of Licensees Rules 2006, read with Section 67 (2)(a) to (d) of the Electricity Act 2003.
(ii) But if the appropriate Government has, in terms of Section 164 of the 2003 Act, by order in writing, conferred upon any Public Officer or licensee, the powers of a telegraph Authority under the Indian Telegraph Act, 1885, for placing of electric lines or electric plant, then the requirement of prior consent under Rule 3(1)(a) need not be complied with. This is in view of Rule 3(4) of the Works of Licensees Rules 2006.
(iii) In other words, if the appropriate Government had passed an order empowering the licensee to exercise any of the powers conferred by the Telegraph Act, 1885, then the licensee can invoke Sections 10 and 11 of the Telegraph Act, 1885 and simply enter upon any private land and carry out necessary works, without the prior consent of the owner. But if the appropriate Government had not passed any order in terms of Section 164 of the Electricity Act, 2003 conferring such a power upon the licensee, to exercise any power under the Telegraph Act, then the licensee has to obtain prior consent of the owner or occupier, as per Rule 3(1)(a) of the Works of Licensees Rules 2006 to carry out the works. On the aspect, as to whether, prior consent of the owner is necessary, before erecting the poles, towers or supply lines, on a private land, The Hon'ble Judge, at Paragraph 41, further held that it depends upon whether the appropriate Government had conferred powers upon the licensee, under Section 164 of the Electricity Act, 2003 or not. Having regard to the statutory provisions, Section 164 of the Electricity Act, 2003 and Section 51 of the Indian Electricity Act, 1910, the proceedings of the Tamil Nadu Electricity Board, in Permanent B.P.(CH)No.368, Technical Branch, dated 25.08.2010, at Paragraphs 42, 43 and 44, the Court held as follows:
42. To find an answer to the above question, we may have to go back once again to the Electricity Act, 1910. Section 51 of the 1910 Act stipulated that notwithstanding anything contained in Sections 12 to 16 and 18 and 19, the appropriate Government may by order in writing, confer upon any Public Officer, Central/State Transmission Utility, Licensee, Transmission Licensee or any person engaged in the business of transmission, any of the powers of the Telegraph Authority under the Telegraph Act, 1885. As a matter of fact, Section 51 of the 1910 Act is in pari materia with Section 164 of the 2003 Act, with only a slight modification. While Section 51 of the 1910 Act refers to Central Government in the case of Inter State Transmission and the State Governments in the case of Intra State Transmission, Section 164 of the 2003 Act refers only to Appropriate Government. Additionally, Section 51 of the 1910 Act, speaks of electric supply lines, appliances and apparatus for transmission of energy. But Section 164 of the 2003 Act speaks of electric lines or electrical plant for the transmission of electricity. Except this, the provisions of both are almost identical.
43. It is seen from para 4 of the Board proceedings of the Tamil Nadu Electricity Board in Permanent B.P.(CH) No.368, Technical Branch, dated 25.8.2010, that the appropriate Government had already conferred powers upon the Electricity Board to exercise the powers of the Telegraph Authority under the Telegraph Act, 1885. This conferment had been made by the Government, in terms of Section 51 of the Electricity Act, 1910, much before the 2003 Act was issued. This conferment made under Section 51 of the 1910 Act should be deemed to be a conferment under the corresponding provision of the 2003 Act, namely Section 164, since it is not inconsistent with any of the provisions of the 2003 Act. This is in view of Section 185(2)(a) of the Electricity Act, 2003. Under Section 185 (2)(a) of the 2003 Act, any notification, declaration or authorisation made under the repealed enactments would be deemed to have been done under the corresponding provision of the 2003 Act, if it is not inconsistent with the 2003 Act. Since the power of the appropriate Government under Section 51 of the 1910 Act, to empower a licensee to exercise the powers of the Telegraph Authority, is retained in tact, under Section 164 of the 2003 Act, there is no inconsistency. Therefore, the only condition prescribed in Section 185(2)(a), namely that the act done in terms of the previous enactment should not be inconsistent with the provisions of the new Act, is also satisfied. Hence, the power conferred upon the TNEB by the State Government under Section 51 of the 1910 Act, is deemed to be the power conferred under the corresponding provision of the new Act viz., Section 164.
44. Thus it is clear that the respondents have been conferred with the powers exercisable by the Telegraph Authority in terms of Section 10 of the Telegraph Act, 1885. Therefore, Rule 3 (4) of the Works of Licensees Rules 2006, would come into play in the case on hand. Consequently, the requirement of prior consent of the owner or occupier, prescribed under Rule 3(1)(a) of these Rules will not affect the powers deemed to be conferred upon the respondents under Section 164 of the 2003 Act, by virtue of Section 185(2)(a) of the 2003 Act read with Section 51 of the 1910 Act. Summarising the legal position, at Paragraph 58, the Court held as follows:
58. Therefore, in the light of the foregoing discussion, the following conclusions emerge:-
(i) The provision of Section 12(2) of the Electricity Act, 1910, requiring the licensee to obtain consent of the owner or occupier of the land on which it is proposed to carry out certain works, stands repealed, in terms of Section 185 (1) and 185 (2) (b) of the Electricity Act, 2003, with the issue of the Works of Licensees Rules, 2006, in exercise of the power conferred by Section 67 (2) of the 2003 Act.
(ii) Primarily, Rule 3(1)(a) the Works of Licensees Rules, 2006 requires the licensee to obtain the prior consent of the owner or occupier of any building or land on which it is proposed to carry out certain works. (iii) If the owner or occupier refuses to give consent and raises objections, the licensee may obtain permission in writing from the District Magistrate or the Commissioner of Police, in terms of the first proviso under Rule 3(1).
(iv) But in cases where powers are conferred upon the licensee under Section 164 of the Electricity Act, 2003, the provisions of Rule 3(1) to (3) of the Works of Licensees Rules, 2006 will not apply. In other words, where the appropriate Government had conferred upon the licensee, the powers of a Telegraph Authority under the Telegraph Act, 1885, the licensee need not take recourse to the procedure prescribed by Rules 3(1) to (3) of the Works of Licensees Rules, 2006. But the licensee shall take recourse to the provisions of the Telegraph Act, 1885.
(v) Since Section 164 of the 2003 Act, corresponds to Section 51 of the 1910 Act, the power conferred by the Government upon a licensee, in terms of Section 51 of the 1910 Act, is saved by Section 185(2)(a) of the 2003 Act. Therefore, the power conferred upon the Tamil Nadu Electricity Board by the Government of Tamil Nadu under Section 51 of the 1910 Act, could continue to be exercised by the Board, as though those powers were conferred under Section 164 of the 2003 Act.
(vi) Section 10 of the Telegraph Act, 1885, does not contemplate consent or permission of the owner or occupier of a property, for the purpose of placing and maintaining a supply line, under, over, along or across and posts in or upon any immovable property. The only case where Section 10 contemplates permission is in respect of a property vested in or under the control or management of any local authority.
(vii) Though Section 10 of the Telegraph Act, 1885, does not make it incumbent upon the licensee to obtain permission of the owner or occupier, it does not also reduce his ownership or right of possession into something farcical. The right of the owner or occupier to resist or obstruct any act undertaken under Section 10, is recognised indirectly in Section 16(1), which requires the licensee to obtain an order of the District Magistrate, in such circumstances. A careful reading of Section 16(1) would show two things viz., (a) that the District Magistrate exercises his power under this Section, in his discretion and (b) that what the District Magistrate does under Section 16(1) is akin to the removal of obstruction as ordered by an Executing Court in terms of Order XXI, Rules 97 and 98 of the Code. Any resistance on the part of the owner or occupier after an order is passed by the District Magistrate becomes a punishable offence under Section 188 of the Indian Penal Code, by virtue of Section 16 (2) of the Telegraph Act, 1885.
(viii) The words resisted or obstructed appearing in Section 16(1) of the Telegraph Act, 1885 have to be given their ordinary meaning. They have to be understood as defensive acts as pointed out by the Apex Court in Santosh Kumar v. State [AIR 1951 SC 201]. Actual physical acts of omission and commission at site or on the spot, is not necessary to constitute resistance or obstruction, as held by the Supreme Court in C.C.E. v. Paradip Port Trust [1990(4) SCC 250]. The method of resistance/obstruction adopted by people, vary from person to person depending upon their status, level of education, mental orientation and social upbringing. Therefore, any kind of objection or protest by the land owner would tantamount to obstruction/ resistance. Such an interpretation is necessary in view of the fact that the Telegraph Act is a colonial Act of pre-Constitutional days, which came to be adapted after the Constitution and which has come to be borrowed by the Electricity Act, 2003 to interfere and infringe upon the rights of owners of private property to their unhindered enjoyment. The Supreme Court pointed out in Dev Sharan v. State of U.P., {2011 (4) SCC 769} that even the Land Acquisition Act, 1894, is "a pre-constitutional legislation of colonial vintage and is a drastic law, expropriatory in nature". Therefore, any interpretation to such enactments should conform to the Constitutional goals and rights. Despite the fact that the right to property is no more a fundamental right after the 44th Amendment to the Constitution, it is nevertheless a constitutional right under Article 300-A. In several decisions, the Supreme Court has held that to hold property is not only a Constitutional right but also a human right. {see Lachhman Dass v. Jagat Ram {2007 (10) SCC 448}, Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel {2008 (4) SCC 649}, N.Padmamma v. S.Ramakrishna Reddy {2008 (15) SCC 517}, Chandigarh Housing Board v. Major General Devinder Singh {2007 (9) SCC 67}. Therefore, a dignified protest, even in the form of a formal letter, notice or telegram, would amount to obstruction within the meaning of Section 16(1) of the Telegraph Act, 1885. Once such a protest is lodged, the licensee should seek an order from the District Magistrate.
63. In P.Nachimuthu and others v. The District Collector [W.P.No.22967 of 2011, dated 30.11.2011], it was the submission of the petitioners therein, that the first respondent therein, does not have the power or authority to pass the impugned order. Section 68(1) of the Electricity Act, 2003 only confers the power only on the appropriate Government, for granting permission to lay the overhead lines. Since no rules have been framed under Section 180 of the Electricity Act, 2003, the provision contained under Sections 6 to 12 of the Indian Electricity Act, 1910 will have to be made applicable. Section 185 of the Electricity Act, 2003 cannot over-ride Section 68 of the said Act. The provisions contained under Section 183 of the Electricity Act, 2003 cannot be made applicable to other provisions. The provisions contained under Section 10 of the Indian Telegraph Act, 1885 have not been followed.
64. It was further submitted that the cart track is a public property and therefore the petitioners have the locus standi to file these writ petitions and once a property becomes a public property, the same cannot be allowed to be used by other persons. Reliance has also been made to following decisions, viz., S.N.Chandrashekar and Another v. State of Karnataka and others [(2006) 3 SCC 208], A.Abdul Farook v. Municipal Council, Perambalur and others [(2009) 15 SCC 351], Hari Ram v. Jyoti Prasad and Another [(2011) 2 SCC 682], Jagpal Singh and Others v. State of Punjab and Others [AIR 2011 SC 1123], Power Grid Corporation of India ltd., v. Ram Naresh Singh and Others [AIR 2011 PATNA 83] and C.Ram Prakash and Another v. Power Grid Corporation of India Ltd., and Another [2011-4-L.W.924].
65. Per contra, the respondents have contended that in view of the Electricity [Removal of Difficulty] (fifth) Order, 2005, no licensee is required for the generating Company. Section 2(16) of the Electricity Act, 2003 deals with dedicated transmission lines and therefore, the same is governed by the Electricity [Removal of Difficulty] (fifth) Order, 2005. The appropriate Government under Section 2(5) of the Electricity Act, 2003 is the State Government. Action has been taken by the first respondent under Section 11 of the Electricity Act, 2003. The procedure contained under Section 10 of the Electricity Act, 2003 has been complied with. Since no rules have been framed under Section 180 read with 67(2) of the Electricity Act, 2003 by the State Government there is no basis for the contentions raised by the petitioners. The respondents have further contended that the above contentions have been raised, either before the first respondent therein, or in the affidavit. It was also contended that the petitioners do not have the locus standi to question the order of the first respondent. Inasmuch as the petitioners are neither owners nor occupiers as stipulated either under the Indian Telegraphic Act, 1885 or under the Indian Electricity Act, 1910, they cannot question the order impugned. The respondents placed reliance on the following decisions, viz., Bharat Plywood and Timber Products Pvt. Ltd., v. Kerala State Electricity Board [AIR 1972 KERALA 47], M.Nithyanandham and two others v. The Chairman, Tamil Nadu Electricity Board, Madras-2 and others [1994 WRIT L.R.445], E.Venkatesan and others v. Chairman, Tamil Nadu Electricity Board, Madras and others, [AIR 1997 MADRAS 64], T.S.T.Kaznavi v. Tamil Nadu Electricity Board [2008 (2) MLJ 703], R.Kannan v. Power Grid Corporation (India) Ltd., and others [W.A.NO.464 OF 2008, ORDER DATED 10.04.2008], R.Santhana Raj and Another v. The Chief Engineer, Non-Conventional Energy Source, Anna Salai, Chennai and Others [W.P.(MD)NO.8844 OF 2011, ORDER DATED 08.11.2011].
66. While distinguishing the difference between dedicated transmission lines, as defined in Section 2(16) and overhead lines in Section 2(48) of the Electricity Act and Section 2(72), which deals with transmission lines, The Hon'ble Mr. Justice M.M.Sundresh, at Paragraph 23 of the judgment, held as follows:
23. A conjoint reading of the above said provision would show that Section 2(16) of the Electricity Act, 2003 deals with dedicated transmission lines which is a separate category. The said dedicated transmission lines are confined to a generation station referable to section 10 of the Act. Section 2(72) of the Electricity Act, 2003 deals with all other transmission lines other than dedicated transmission lines. Overhead lines have been specifically dealt with under Section 2(48) of the Electricity Act, 2003. A combined and conjoint analysis of above three Sections would lead to the conclusion that they operate on their own distinct and separate fields. In other words, a dedicated transmission line as defined under Section 2(16) of the Electricity Act, 2003 is not a transmission line provided under Section 2(72) or a overhead line under Section 2(48) of the Electricity Act, 2003.
67. As regards the powers conferred under Sections 67, 68, 176, 180, 183 and 185 of the Electricity Act, 2003, the learned Judge, observed as follows:
Sections 67, 176 & 180 of the Electricity Act, 2003:
26.Section 67(2) of the Electricity Act, 2003 deals with the subjects over which, the appropriate Government may by rules specify. Section 67(2) sub-clause (d) of the Electricity Act, 2003 deals with the procedure and manner of consideration of objections. Section 176 of the Electricity Act, 2003 provides for the power of Central Government to make rules. Accordingly, Section 176(2)(e) of the Electricity Act, 2003 provides for rule making power over the works of licensees affecting the property of owner or occupier of sub-section (2) of Section 67 of the Electricity Act, 2003. A similar power has been provided by the State Government under Section 180 of the Electricity Act, 2003. Therefore under Sections 176, 180 read with 67(2) of the Electricity Act, 2003, the appropriate Government can make rules over the works of licensees affecting the right of the property of others. In accordance with the same, the Central Government has made rules, namely the Works of Licensees Rules, 2006. Unfortunately, no such rules have been framed by the State Government. Therefore, in the absence of any specific rules made by the State Government, under Section 180 read with 67(2) of the Electricity Act, 2003 the rules framed by the Central Government cannot be made applicable as it is not the appropriate Government under Section 2(5) of the Electricity Act, 2003.
Section 68 of the Electricity Act, 2003:
27.Section 68 of the Electricity Act, 2003 mandates that an overhead line shall be installed only with the prior approval of the appropriate Government. This Section has to be read with the definition of overhead line as provided under sub-clause 48 of Section 2. As discussed above, the definition of sub-section 48 of Section 2 would certainly exclude the dedicated transmission line as provided under sub-section 16 of Section 2 of the Electricity Act, 2003.
Section 183 and 185 of the Electricity Act, 2003:
28.Section 183 of the Electricity Act, 2003 speaks about the power of the Central Government to remove the difficulties by way of making the order removing the difficulties. The proviso to the said Section says that no such order shall be made after the expiry of two years from the date of commencement of the Act. It is under this provision, the Electricity [Removal of Difficulty] (fifth) Order, 2005 has been made by the Central Government by which exemption has been given to the generating company. Section 185 speaks about the repeal and saving. Under Section 185(2)(b) of the Electricity Act, 2003, the provisions contained under Sections 12 to 18 of the Indian Electricity Act, 1910 and rules made thereunder shall have effect until the rules under Sections 67 to 69 of the Electricity Act, 2003 are made. Therefore, this is no difficulty in holding that under Section 185 of the Electricity Act, 2003, the provisions contained under Sections 12 to 18 of the Indian Electricity Act, 1910 would be made applicable in the absence of any rules made by the State Government but the same provisions cannot be made applicable to the petitioners as they are neither the owners nor the occupiers.
Analysis:
29.In the light of the discussions made above, it is very clear that in view of the provisions contained in Electricity [Removal of Difficulty] (fifth) Order, 2005, no licence is required for the third respondent for establishing, operating or maintaining a dedicated transmission line. The legal contentions raised by the learned counsel for the petitioners have been answered by the Electricity [Removal of Difficulty] (fifth) Order, 2005 the said order is extracted hereunder:
"S.O. 794(E) Whereas the Electricity Act, 2003 (36 of 2003) (hereinafter referred to as the Act) came into force on the 10th June, 2003;
And whereas section 7 of the Act provides that any generating company may establish, operate and maintain a generating station without obtaining a licence under this Act if it complies with the technical standards relating to connectivity with the grid referred in clause (b) of section 73;
And whereas sub-section (1) of section 10 of the Act provides that subject to the provisions of this Act, the duties of a generating company shall be to establish, operate and maintain generating stations, tie-lines, sub-stations and dedicated transmission lines connected therewith in accordance with the provisions of this Act or the rules or regulations made thereunder;
And whereas sub-section (1) of section 9 of the Act provides that notwithstanding anything contained in this Act, a person may construct, maintain or operate a captive generating plant and dedicated transmission lines;
And whereas a dedicated transmission line in terms of sub-section (16) of section 2 of the Act is an electrical supply line for point-to-point transmission for connecting a captive generating plant or a generating station to any transmission line or sub-stations or generating stations or the load centre, as the case may be;
And whereas such a dedicated transmission line is neither a transmission line in terms of sub-section (72) of section 2 of the Act nor it is a distribution system connecting the point of a connection to the installation of consumer in terms of sub-section (19) of section 2 of the Act;
And whereas difficulties have arisen regarding the requirement of a transmission licence for establishing, operating or maintaining a dedicated transmission line;
Now, therefore, the Central Government in exercise of its powers conferred by section 183 of the Act hereby makes the order in respect of establishing, operating or maintaining a dedicated transmission line, not inconsistent with the provisions of the Act, to remove the difficulties, namely;
1. Short title and commencement:-
(1)This order may be called the Electricity [Removal of Difficulty] (fifth) Order, 2005.
(2)It shall come into force on the date of publication in the Official Gazette.
2. Establishment, operation or maintenance of dedicated transmission lines:-
A generation company or a person setting up a captive generating plant shall not be required to obtain license under the Act for establishing, operating or maintaining a dedicated transmission line if such company or person complies with the follows: (a) Grid code and standards of grid connectivity;
(b) Technical standards for construction of electrical lines;
(c) System of operation of such a dedicated transmission line as per the norms of system operation of the concerned State Load Despatch Centre (SLDC) of Regional Load Despatch Centre (RLDC)
(d) Directions of concerned SLDC or RLDC regarding operation of the dedicated transmission line.
68. In Sathya Sai Warehousing & Logistics Part (SSS) Pvt. Ltd., v. The Chairman, Tamil Nadu Electricity Board reported in 2012 (3) LW 625, the request of the petitioner for alternative route for erecting a tower line was rejected. The Superintending Engineer, proceeded with the erection of the tower line, as per the Electricity Act, 2003. Inter alia, it was challenged on the grounds that the tower line should not be erected, without the permission of the owner or occupier. Per contra, placing reliance on Section 164 of the Electricity Act, 2003, the Board has contended that G.O.Ms.No.102 Energy (C3) Department, dated 10.12.2009 has been issued by the Government, granting approval to the Board, for executing 230KV transmission lines, from Arasur 400 KV SS to Arasur 230 KV SS. The said Government Order is passed in terms of Sections 68 and 164 of The Electricity Act, 2003. It has been passed based on feasibility study and after considering the technical parameters. The Electricity Board has further submitted that for the purpose of laying electric lines or electrical transmission of electricity, Section 164 enables the Government or the authority to invoke the provisions under the Indian Telegraph Act. A contention has also been raised that objections of the land owner can be with reference only on the aspect of compensation, that would be determined under Section 16 of the Telegraph Act and that the land owner has no right to seek for any alignment of the route. Having regard to the above contentions, a learned Single Judge, at Paragraphs 8 to 11, held as follows:
8. A reading of Section 164 read with Sections 10 and 16 of the Indian Telegraph Act, 1885 would reveal that for the implementing the scheme as per Government Order the authority has the same power as that of the Telegraph authority. Section 10 of the Indian Telegraph Act, 1885 gives the power to enter upon and there is no restraint except complying with the requirement of Section 16 of the Indian Telegraph Act, 1885.
9. The petitioner in this case has asked for reallocation of the line based on certain technical parameters. There is no resistance or obstruction for the laying of the electric line. Therefore, Section 12 of the Indian Electricity Act, 1910 and Section 16(1) of the Indian Telegraph Act, 1885 does not come into play. The only question that remains to be considered is whether the line can be altered or relocated.
10. Section 164 of the Electricity Act, 2003 enables the appropriate Government to draw an evacuation scheme and implement it and it is not in dispute. Admittedly, no rules have been framed in terms of Section 67 of the Electricity Act, 2003. Section 185(2)(b) of the Electricity Act, 2003 which deals with Repeal and Saving provides that the provisions contained in Sections 12 to 18 of Indian Electricity Act, 1910 and the Rules made thereunder will apply. Further, Section 164 of the Electricity Act, 2003 also provides that the provisions of Indian Telegraph Act, 1885 will be made applicable for the purpose of implementing the Government order for placing of electrical line or electrical plant for the transmission of electricity. A reading of the above provisions makes it clear that in respect of a scheme the mode of implementation is by following the mandate of Section 164 of the Electricity Act, 2003. Sections 10 and 16 of the Indian Telegraph Act, 1885, provides for compensation and petitioner can have no grievance on that as the respondents are not denying it.
11. A Division Bench of this Court in C.Ram Prakash and another vs. Power Grid Corporation of India Ltd., and another reported in (2011) 8 MLJ 593 in its decision dated 23.08.2011 considered the scope of the term objection. Sections 10 and 16 of the Indian Telegraph Act made applicable in Section 164 of the Electricity Act, 2003 were considered by the Division Bench in the above cited decision, and held that it is not necessary that every obstruction or resistance should be considered and the authority should be approached. In the above referred decision, the Division Bench of this Court has clearly held the scope of Sections 10 and 16 of the Indian Telegraph Act, 1885 in paragraphs 22, 23 and 24.
22. Scope of Sections 10 and 16 of the Indian Telegraph Act, 1885:
The power under Section 10 of the Indian Telegraph Act, 1885 is rather wide and extensive. While exercising the power, it is not necessary for the respondent No.1 to put to individuals, who owned the land on notice. Admittedly, the respondent No.1 has got power under Sections 10 and 16 of the Indian Telegraph Act, 1885. Such a power has been conferred upon the respondent No.1 in public interest. The exercise of the said power by erecting the towers with overhead lines would not amount to an acquisition. It is true that such an action would diminish the value of the property of an individual, but at the same time, it cannot be termed as an acquisition. Since Section 16 of the Indian Telegraph Act, 1885 provides mechanism of compensation, the appellants can have no grievance.
23. Section 16 of the Indian Telegraph Act provides for a mechanism by which the respondent No.1 can approach the second respondent, if there is an obstruction or resistance, it is not necessary that in each and every case, the respondent No.1 will have to approach the second respondent whenever there is an objection. The word objection has got a different connotation than the words resistance or obstruction. A resistance or obstruction would mean preventing the statutory body from carrying out the public duty. Whereas an objection is merely a form of protest. Further, under Section 16 of the Indian Telegraph Act, the respondent No.2 has got no power to go into the merits of the case and find out as to whether the alignment proposed is correct or not and there is any possibility of realignment. The prescription of Section 16 of the Indian Telegraph Act is very specific to provide aid to the respondent No.1 to perform its statutory duty. Considering the scope of Section 10 of the Indian Telegraph Act vis-a-vis Section 16 of the Indian Telegraph Act, it has been held by the Division Bench of the Delhi High Court in Scindia Potteries v. Purolator India Ltd., AIR 1980 Del 157 as follows:
9... The exercise of power under Section 10 is not conditional on compliance with the provisions of Section 16(1) of the Act. The power given under Section 10 is absolute. It is only when there is a resistance or obstruction in the exercise of that power that the occasion to approach the District Magistrate arises. If there is no resistance or obstruction, there is no occasion for the telegraph authority to approach the District Magistrate. The alleged oral protest relied upon by the appellant appears to us to be a made up story. Two telegraph poles were affixed on the appellants' property in February, 1974. The telephone lines and connections were thereafter given from time to time. Till the landlord-tenant dispute arose between the appellant and Purolator India Ltd., no objection was raised by the appellant. No doubt in April, 1978 the appellant gave notice to the telegraph authority under Sections 17 and 19-A of the Act and may be that the telephone connections in May, 1978 can be treated as the ones objected to but then Sections 17 and 19-A have a different purport. The resistance and obstruction envisaged by Section 16(1) of the Act is different. This will be clear on a reading of sub-section (1) of Section 16 of the Act. It is for the purpose of Section 188 IPC., that an application is to be given under Section 16(1) of the Act to the District Magistrate. Section 188, IPC makes the disobedience of an order duly promulgated by the public servant an offence. Section 16 is really in aid of the discharge of statutory duty and exercise of statutory power postulated by Section 10. We are in respectful agreement with the ratio laid down therein.
24. The learned counsel for the appellants made reliance upon the judgment of the Full Bench of this Court in Arumugam v. State of Tamil Nadu (Supra). We are afraid that the said case has no relevance to the present case on hand. The Full Bench of this Court was dealing with a conscious omission made by the legislature touching upon Article 21 of the Constitution of India, whereas considering the object behind the Indian Telegraph Act and the Electricity Act, 2003, and in view of the power available under Section 10 of the Indian Telegraph Act, 1885, the respondent No.1 has got every jurisdiction to erect the towers. In Sathya Sai's case, the learned Single Judge, at Paragraphs 12 to 15, further observed that, "12. It has been clearly held by the Division Bench that the authority while considering the objection has no role insofar as alignment is concerned. In the present case as per the Government Order the approval for execution of power plant evacuation line, in exercise of power under Section 164 of the Electricity Act 2003 has been granted and therefore, there is no power vested with the Superintending Engineer to grant any relief as sought for in the representation for change of alignment.
13. The Division Bench decision clearly mandates that the objection of the land owner will not be of any consequence for the purpose of alignment but it can be only with regard to the issue relating to compensation that will be determined under Section 16 of the Telegraph Act. Therefore, the petitioner's plea for change of alignment cannot be considered by this Court.
14. In any event, the impugned letter is a reply given to the petitioner after considering the request for re-alignment. That has been considered by the Superintending Engineer and declined in view of the Government Order and scheme. The representation of the petitioner has been replied and it does not give a cause of action for the petitioner to file the writ petition. No provision of law is shown to have been breached to maintain this writ petition. There is no obstruction in order to force the respondents to approach any authority under the provisions of the Electricity Act or the Indian Telegraph Act.
15. My attention is drawn to the earlier order passed by a learned Single Judge in W.P.No.36566 of 2007 dated 28.1.2008 (T.S.T.Kaznavi vs. Tamil Nadu Electricity Board rep. by its Chairman and Others), which I had followed in an earlier occasion in W.P.No.6353 of 2010 dated 22.6.2010 relying upon a Full Bench Decision of the Kerala High Court in Bharat Plywood and Timber Products Private Limited vs. - Kerala State Electricity Board, Trivandrum and others reported in AIR 1972 Kerala 47 (V.59 C 10)(1). These cases are prior to the decision rendered by the Division Bench of this Court referred to above. After the decision of the Division Bench in C.Ram Prakash and another vs. Power Grid Corporation of India Ltd., and another reported in (2011) 8 MLJ 593 that proposition does not hold good any longer. The order of the Division Bench reported in [(2011)8 MLJ 593] will apply to the present scheme for evacuation of power by laying transmission lines in terms of Section 164 of the Electricity Act, 2003.
69. In The Chairman, TANTRANSCO v. The District Collector, Thiruvallur [W.P.No.23442 of 2012, dated 22.11.2012], the petitioner has challenged the order of the District Collector, giving directions to the petitioner-Corporation to erect the Tower and realign the power transmission lines along the approved alignment. It was the contention of the learned Advocate General appearing for the petitioner-Corporation that the District Collector has no jurisdiction to order re-alignment of transmission lines, as he is not technically competent to order realignment. He has relied on the order of this Court made in W.P.Nos.2305 and 2917 of 2012 dated 24.4.2012, wherein, it has been held that the District Collector has no jurisdiction to decide about the route of the transmission line. He has further submitted that the abovesaid order made in W.P.Nos.2305 and 2917 of 2012, dated 24.04.2012, of the learned single Judge, has been affirmed by the Hon'ble First Bench of this Court in W.A.No.1049, 1050 and 1051 of 2012, by judgment, dated 16.11.2012 and that therefore, the issue involved in W.P.No.23442 of 2012, filed by the Chairman, TANTRANSCO, is covered by the said Hon'ble Bench decision. The learned Advocate General has also submitted that except three towers, the remaining towers have been already erected and if the order of the District Collector, first respondent therein, is allowed to stand, the State will have to face power crisis and hence, in public interest, the impugned order therein, is liable to be set aside. After considering the decision of this Court in W.A.No.1049, 1050 and 1051 of 2012, dated 16.11.2012 and the Apex Court in Ramakrishna Poultry v. R.Challappan reported in 2009 (16) SCC 743, this Court held as follows:
21. Thus, from the facts which was the subject matter of the said decision, it is evidently clear that the same cannot be made applicable to the facts and circumstances of the case on hand. Further, in the instant case there was no direction to the District Collector to examine as to whether which route was more feasible. In fact it has been pointed out that initially the District Collector after holding discussions was of the firm view that the original route planned by the Board was more feasible as it passes along the existing Panchayat Road. Therefore, in our view the alternate route if adopted would be against public interest. Further, the order passed by the District Collector dated 18.07.2011, does not assign any reasons as to why the transmission line should not pass through the original route. Though the Collector has narrated the contention of the land owners and the view of the Electricity Board, in the penultimate portion of the order has altered the route. No reasons have been assigned as to why the original route should not be adopted. Thus the order of the District Collector apart from being without jurisdiction is also vitiated for not assigning reasons which would offend Article 14 of the Constitution of India.
70. In Shri Vivek Brajendra Singh vs State, Government Of Maharashtra [Writ Petition No.256 of 2012, dated 22.03.2012], the Bombay High Court, held as follows:
21. The provisions of the Indian Telegraph Act, 1885 contained in Part III of the Act and the provisions of the Electricity Act, 2003 contained in Part VIII of the Act and all incidental provisions must be treated as immune from challenge on the grounds of violation of Articles 14 and 19 by a virtue of Article 31A of the Constitution of India."
While adverting to the contention of the petitioners therein that the action of the respondents, in placing the electrical lines, over the lands, is violative of Section 12 of the Act, the Bombay High Court, at Paragraphs 26 and 28, further held that,
26. This contention is misplaced in view of the provisions of the Electricity Act, 2003. This Act was enacted for consolidating the laws relating to generation, transmission, distribution, trading and use of electricity and generally for taking measures conducive to development of electricity industry. The Statement of Objects and Reasons specifically referred to the need of harmonising and rationalising the provisions of the Indian Electricity Act, 1910 and the necessity to enact new legislation for regulating the electricity supply industry in the country which would replace the existing laws. Section 185 of the Electricity Act, 2003 repealed the Indian Electricity Act, 1910 containing Section 12 relied upon by the petitioners.
28. According to the petitioners since Rules have not been made under Sections 67 to 69 of the new Act of 2003, the provisions contained in Sections 12 to 18 continue to have effect as provided by Clause (b) above and, therefore, the respondents were bound to obtain the consent of the owners and occupiers of the land under Section 12. This submission is based on an erroneous assumption that the act of placing an electric line is being performed by the Transmission Company under Section 12 of the Electricity Act, 1910 which is temporarily saved as a transitory provision till the enactments of rules. On the other hand, the State of Maharashtra has issued a notification under Section 164 of the new Act of 2003 conferring powers with respect to the placing of telegraph lines and posts, which the Telegraph Authority possesses under the Indian Telegraph Act, 1885 for the purpose of placing of electric line for transmission of electricity on the Transmission Company. When such a notification is issued under the Electricity Act, 2003 in terms, the person authorized exercises powers of a Telegraph Authority under the provisions of the Indian Telegraph Act, 1885 and not powers under Sections 12 to 18 of the old Act, 1910 which are temporarily saved. It is obvious that after such authorization under Section 164 of the new Act 2003, the Transmission Company is bound to exercise the powers of a Telegraph Authority with respect of placing of telegraph lines and posts for the purpose of placing of an electric line for the transmission of electricity. These powers are found in Part III of the Indian Telegraph Act, 1885 vide Sections 10 to 16. None of these provisions provide for obtaining consent of an owner or occupier of the land. The legislative scheme in regard to the electric lines is that after the repeal of the Indian Electricity Act, 1910, the work of placing of electrical lines must be done under Sections 12 to 18 of the old Act 1910 till rules are framed under Sections 67 and 68 of the new Electricity Act, 2003. If there is any such notification under Section 164 of the new Act 2003, conferring powers of the Telegraph Authority for the purpose of placing electric lines, during the transitory period when rules are not framed under Sections 67 and 68 of the new Act 2003, the did not and cannot act under Sections 12 to 18 of the old Act, 1910. The contention on behalf of the petitioners is, therefore, rejected.
71. Part III of the Telegraph Act, 1885, deals with Power to Place Telegraph Lines and Posts" and there are other provisions in the said Act, applicable to all the properties. As seen from the plethora of cases, powers conferred on the telegraph authority to place and maintain telegraph lines and towers, are traceable to Sections 10, 11 and 14 of the abovesaid Act and by virtue of Section 164 of the Electricity Act, 2003, it is conferred on any public officer, licensee or any other person engaged in the business of supplying electricity.
72. As per Clause (c) to Section 10, the authority can exercise its powers in respect of the property of a local authority only, by obtaining permission of that authority, whereas, no such permission is required in relation to the property of others. Section 10 does not contemplate notice to an owner or occupier of land to show cause against laying of a line and it authorizes the telegraph authority, to place a telegraph line under, over, along or across any immovable property. Proviso makes it clear that the licencee or any other authorised person does not acquire any right, other than that of user of the property. The right conferred on the land owner is only to seek for payment of compensation for any damage sustained by him, by reason of exercise of the powers.
73. Section 10 of the Indian Telegraph Act, 1885, confers a legal sanction to a telegraph authority to enter into any private property, subject to the condition that, while entering into the property and during the course of execution of any work, the telegraph authority is under an obligation to cause as little damage, as possible, and shall pay full compensation to all persons interested for any damage sustained by them, while exercising the powers conferred under Section 10 of the Act.
74. When power of the telegraph authority to enter into any private property, is subject to the conditions to cause as little damage as possible, and when there is a provision for payment of compensation, the question as to whether, the said authority should seek for consent from the owner of the property, or provide him an opportunity of hearing before entering into the property, does not arise. However, the land owner may be informed of the work tobe executed.
75. Since the powers under Section 10 of the Indian Telegraph Act, 1885, can be exercised without acquiring the land in question, once an order is passed by the appropriate government under Section 164 of the Electricity Act, 2003, the public officer, licensee or any other person engaged in the business of supplying electricity shall be entitled to proceed with the works of placing the electric lines without acquiring the land in question. Usage of the land by the licencee or the authorised person, does not amount to acquisition.
76. Section 164 of the Electricity Act, 2003, empowers the State Government to confer, by an order in writing, powers which the telegraph authority possesses under the Indian Telegraph Act, 1885, with respect to placing of telegraph lines and posts, on any public officer, licensee or any other person engaged in the business of supplying electricity under that Act, for placing of electrical plants and electric lines, in terms of Section 2(20), which defines "electric line", as any line which is used for carrying electricity for any purpose and includes--
(a) any support for any such line, that is to say, any structure, tower, pole or other thing in, on, by or from which any such line is, or may be, supported, carried or suspended; and
(b) any apparatus connected to any such line for the purpose of carrying electricity;
77. The power conferred on any public officer, licensee or any other person engaged in the business of supplying electricity under the Electricity Act, for the abovesaid purpose, may be subject to such conditions, if any, the Government deems it fit to impose and also subject to the provisions of the Indian Telegraph Act, 1885.
78. The authorisation, in terms of Section 164 of the Electricity Act, 2003, read with Section 10 of the Indian Telegraph Act, 1885, authorising the public officer or licencee or any other person engaged in supplying electricity, all the powers of the Telegraph Authority, which includes power to enter into any private property, subject to the condition that while entering into the property and the public officer or licensee or any other person, authorised under the Act, is under an obligation to cause as little damage as possible, with a guarantee for payment of compensation for the owner of the land or the persons interested.
79. Sections 16 and 17 of the Indian Telegraph Act, 1885, do not limit the absolute powers of the telegraph authority to enter into any property for the purpose of enforcement of Section 10 of the Indian Telegraph Act, 1885, read with Section 164 of the Electricity Act, 2003, by which, the public officer or licensee or any other person engaged in the business of supplying electricity under this Act, is empowered to exercise all the powers, for the purpose of placing electrical plant, line, erection of towers, conductors, poles, etc.
80. The intention of the Legislature, is to provide electricity, in terms of Section 43 of the Electricity Act, 2003. When the purpose of the Act, is to provide basic amenity of electricity to the public at large, and if every objection/resistance has to be entertained under Section 16(1) of the Indian Telegraph Act, 1885, then it would render Section 10 of the Indian Telegraph Act, 1885 and Section 164 of the Electricity Act, 2003, meaningless, thereby, power conferred on the telegraph authority to enter into any property, subject to causing, as little damage as possible, with an assurance of payment of compensation to the damage, if any, would be redundant.
81. If Section 16(1) of the Act, has to be construed, conferring a right on the landowner to seek for an opportunity of prior notice or consent, then the very purpose of Section 10 of the Indian Telegraph Act, 1885 and Section 164 of the Electricity Act, 2003, would be defeated.
82. Vis-a-vis Section 185 (2) (b) of the Electricity Act, 2003 and Section 12 (2) of the repealed Indian Electricity Act, 1910, under which the consent of the owner or occupier is essential and on the issue, as to the enforceability of Section 12 of the Act, until the Rules are made under Section 67 of the Electricity Act, 2003, consent of the owner or occupier is necessary, only in the absence of any order, passed under Section 164 of the Electricity Act, 2003.
83. Having taken into consideration the relevant provisions of the Indian Telegraph Act, 1885 and Electricity Act, 2003 and analysis of Section 67 and section 164 of the Electricity Act, 2003, the legal position is that, whenever an order is passed by the appropriate Government, in exercise of powers under Section 164 of the Electricity Act, 2003, for placing of electric lines for the transmission of electricity, conferring upon any public officer, licensee or any other person engaged in the business of supplying electricity any of the powers which the telegraph authority possesses under the Indian Telegraph Act, 1885, with respect to the placing of telegraphic lines and posts for the purposes of a telegraph established by the Government, such public officer, licensee or any other person engaged in the business of supplying electricity, exercises all the powers, as that of the telegraph authority, under the Indian Telegraph act, 1885.
84. However, in the absence of such an order under Section 164 of the Electricity act, 2003, if a licensee i.e., a person who has been granted a licence to transmit electricity or to distribute electricity under the Act, proposes to place electric lines, electric plant or other works necessary for transmission or supply of electricity, Section 67 of the Electricity Act, 2003 comes into operation and consequently, prior consent of the concerned owner or occupier, may be required, under Section 12 (2) of the Indian Electricity Act, 1910.
85. The provisions of the Works of Licensees Rules, 2006 made under Section 67 (2) of the Electricity Act, 2003 are in pari materia to Section 12 of the repealed Indian Electricity Act, 1910. The Works of Licensees Rules, 2006 are applicable, only in a case, where the works have been taken up by the licensee, under Section 67 (1) of the Electricity Act, 2003. But Section 67 (1) of the Electricity Act, 2003, as well as the rules made under Section 67 (2) would govern the field, only in the absence of an order, under Section 164 of the Electricity Act, 2003.
86. Section 16 states that if there is any resistance or obstruction, the District Magistrate may in his discretion, order that the telegraph authority shall be permitted to exercise all the powers. Further, after such an order, a person offering any further resistance deemed to have committed offence under Section 188 of the Indian Penal Code. Once the technical feasibility of the project, has been approved by the appropriate Government, by issuing an order under Section 164 of the Electricity Act, 2003, no land owner or person interested can seek for shifting or re-aligning of the route, on the premise that the District Collector-cum-District Magistrate, has powers to do so. He has no powers to alter any route or alignment, except to remove the difficulties faced by the licencee or the person authorised, pursuant to the orders issued under Section 164 of the Act.
87. If the intention of the Legislature was to seek for consent or permission from every owner and if the right of such owner has to be recognised, in terms of Section 16(1) of the Telegraph Act, due to resistance/obstruction, then the execution of any work or project, would be stopped at every stage. Needless to state that execution of works, involving erection of towers and connection of overhead lines, is done, only after a detailed field study, by identifying a feasible route of the proposed transmission line, and while selecting suitable corridors, residential areas to be avoided, span length, the angle of deviation, extent of damage, likely to be caused, while erecting towers, maintenance cost of electric lines and towers and other factors, have to be considered. Public interest, in providing electricity to a large section of people and industrial establishments, etc., has to be given weightage over private interest.
88. If the authorities have to recognize the right of obstruction or resistance, in terms of Section 16(1) of the Indian Telegraph Act, 1885, then the moment, any notification is published, all the landowners or interested persons, who have the knowledge of the commencement of any development work, would immediately resist or obstruct the work, and may even seek for re-location or if the towers, posts had already been erected, may seek for re-alignment or removal of towers and plants, erected by the public officer or licensee or any other person, engaged in the business of supplying electricity, authorised to carry out the works, in terms of an order passed by the appropriate Government, under Section 164 of the Electricity Act, 2003.
89. When a project involves huge expenditure, erection of many towers at various places and when such project involves, greater public interest, then even a single owner, under the pretext of making objections/resistance, would attempt to stall the process of execution of the project. When entry into amu property is legally authorised, with payment of compensation to the land owner, no prior consent is required.
90. The Apex Court and other Courts in India, have categorically held that the action of the licencee or the competent authority, in erecting poles or posts, in the property or drawing lines over the property, does not amount to acquisition of lands and it amounts to only user of the property to the extent indicated and therefore, there is no requirement to intiate any land acquisition proceedings, giving opportunity to the land owners, when execution of the work, is ordered under Section 164 of the Act and accordingly, carried out by the licencee or any other competent authority.
91. Even if any Court gives any directions to consider the representation of any land owner or person interested, such directions are required to be considered only to the limited extent of payment of compensation, to be given by the licencee or the competent authority and the directions issued, if any, would not empower the District Collector-cum-District Magistrate, to pass any order, contrary to the orders, passed under Section 164 of the Act.
92. When the appropriate Government passes an order under Section 164 of the Act, the Collector is bound by the said order, and he is not superior to the Government, to hold that the Government has erred in passing an order, under Section 164 of the Act, authorising the licencee or the competent authority to carry out the work, in the route, which involves Techno-Economic Consideration.
93. The Act confers powers to the Telegraph Authority to determine the property over which the lines are to pass or posts to be erected. The powers of the District Magistrate under Section 16(1) of the Indian Telegraph Act, 1885, does not extent to any adjudication, as to from where and how, the line has to be drawn over any specific item of the property or where posts have to be erected or not, in any specific item of the property.
94. The Power of the District Magistrate is confined only to the extent of exercising his discretion in granting permission to the Telegraph Act, to execute the work, when an application is made by the licencee or the competent authority.
95. Section 10 of the Indian Telegraph Act gives legal sanction to the licencing authority to enter into any property, to lay poles or posts or draw electric lines. But while doing so, the damage of the property should be less. If there is any resistance, the licencee or the authorised person may approach the District Magistrate-cum-District Collector, to grant permission.
96. Once the power is conferred on the licencee or any other competent authority, there can be no objection to the implementation of the scheme, on the principles of natural justice or on the ground of unauthorised use of the land.
97. Legislature has conferred powers on the appropriate Government to authorize a public officer or a licencee, etc., under the Electricity Act to exercise the specific powers of an authority under the Indian Telegraph Act, 1885. The authorisation may be general in favour of a transmission company or in a given case, special. The route is decided by the transmission company. The decision to mark a route for laying an electric line is a highly specialized and technical. At that time, it is unrelated to any specific land owner. The route may be for over hundreds of kilometers passing over Government lands, lands of local authorities and private lands and it may not be practicable to hear the land owners along the entire route.
98. Having regard to the specialized and technical nature of the task, and the fact that the lines are laid for distribution of electricity, it is the view of this Court that, the Legislature has not provided for any notice or hearing to the public at large, or to the land owners. Therefore, when the appropriate Government authorises a person or any body under the Electricity Act, to exercise the powers of the Telegraph Authority, all the powers under the Indian Telegraph Act, 1885, are meant to be exercised.
99. Electricity Act, 2003, is a progressive enactment, with a specific purpose of providing electricity to a large number of people, across the country, to promote industrial and sustainable development in all walks of life. Right of a land owner to possess and enjoy the property, though recognised as a Constitutional Right, under Article 300-A of the Constitution of India, such right has to yield to Articles 14 and 21 of the Constitution of India, which strive to achieve the Constitutional Goals, enshrined in the basic structure of the Constitution of India.
100. In the case on hand, when the appropriate Government considers the Techno-Economic feasibility of execution of a project, in terms of Section 43 of the Act, which in the humble opinion of this Court, is in consonance with Articles 14 and 21 of the Constitution of India, a land owner has no right to object to the process involved in achieving the Constitutional Goals.
101. Telegraph Act authorises entry into any land, for the purpose of erection of poles or posts and drawing transmission lines over the property. While erecting posts or posts, in the land or drawing lines over the property, one may have to suffer damages, but in the larger interest of the public and considering the mandate to provide electricity, right to use the property, in the manner, as desired by the owner of the property, stands eclipsed by Articles 14 and 21 of the Constitution of India, read with the provisions of the Indian Telegraph Act, 1885 and Electricity Acts. The owner can only seek for compensation to the extent of damage caused.
102. User of the land by the licencee or the competent authority does not amount to acquisition of land and therefore, the land owner is entitled to compensation, only to the extent of usage by the licencee or competent authority, for erecting poles or posts or drawing lines over the land.
103. It is not in dispute that in the instant case, a notification has been issued invoking Section 164 of the Electricity Act, 2003. Therefore, Section 67 (1) of the said Act or the Works of Licensees Rules, 2006 made under Section 67 (2) are not attracted and as per Section 164 of the Electricity Act, 2003 read with Section 10 of the Indian Telegraph Act, 1885, the respondents can proceed with the placing of electric supply lines or electric poles for the transmission of the electricity in or over any land, without acquiring the same, and there is no need to obtain the consent of the land owner.
104. In the instant case, the District Collector-cum-District Magistrate has passed the orders, after considering the objections of the petitioner in proper perspective, in consonance with the legal position. The contentions of the petitioner that due to objections raised by the adjacent land owners, alignment has been changed, is not substantiated. While considering the right of the land owner or any person interested to claim compensation, in the light of Section 16(1) of the Telegraph Act, 1885 and the orders passed under Section 164 of the Electricity Act, 2003, reduction in time, utility of the land and diminution in the value, can be raised, as a ground, while making a claim on the adequacy of compensation and the District Collector would consider the same, subject of course to the entitlement of such land owner.
105. In the light of the decisions and discussion, this Court is of the view that there is no manifest illegality in the impugned order, warranting interference. The impugned order is sustained. In the result, the Writ Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed.
29.11.2013 Index: Yes Internet: Yes skm To
1. The District Collector cum District Magistrate, Erode District. Erode.
2. The Deputy General Manager, Power Grid Corporation of India Ltd., K.R.Thoppu, Konakkapadi (PO), Karukalwadi Village, Tharamangalam (Via), Omalur Taluk, Salem District, Salem.
S. MANIKUMAR, J.
Skm
3. The Chief Engineer, Power Grid Corporation of India Ltd.
765 KV DC Line, 17/4, Vivekanandar Street, Ghandi Nagar, Naciyanoor Road, Erode.
Writ Petition No.18548 of 2013 29.11.2013