Patna High Court - Orders
Arvind Singh @ Arvind Kumar vs Power Grid Corp. & Ors on 22 December, 2009
Author: Ramesh Kumar Datta
Bench: Ramesh Kumar Datta
IN THE HIGH COURT OF JUDICATURE AT PATNA
MA No.72 of 2009
Arvind Singh @ Arvind Kumar, son of Late Bishundeo Singh,
resident of Village- Manoharpur Kachhuara, P.S. Gaurichak,
District-Patna
Versus
1. Power Grid Corporation of India Ltd.,Patna, Purbi Mukhyalaya
at Alankar Palace, East Boring Road, P.S. Budha Colony,
District-Patna through its General Manager, Transmission
2. General Manager Transmission, Power Grid Corporation of
India Ltd., Purbi Mukhyalaya at Alankar Palace, East Boring
Road, P.S. Budha Colony, District-Patna
3. Additional General Manager, Transmission, Power Grid
Corporation of India Ltd., Purbi Mukhyalaya at Alankar Palace,
East Boring Road, P.S. Budha Colony, District-Patna
4. Deputy General Manager Transmission, Power Grid
Corporation of India Ltd., Purbi Mukhyalaya at Alankar Palace,
East Boring Road, P.S. Budha Colony, District-Patna
5. Senior Engineer (C.E.), Power Grid Corporation of India
Ltd.,Patna, Purbi Mukhyalaya at Alankar Palace, East Boring
Road, P.S. Budha Colony, District-Patna
6. Santosh Kumar Singh, Manager, I.V.R.C.L. Company office at
Mohalla Sri Krishnapuri, Sahdeo Marg in the building of
Patliputra Netradhan Eye Hospital and Research Centre Pvt.
Ltd., P.S. Budha Colony, District-Patna.
------------
For the appellant: Mr. Dhananjai Kumar Singh, Advocate
For Resp. No. 1 to 5: Mr. Harendra Kumar Tiwary, Advocate.
-- -----------
6. 22.12.2009Heard learned counsel for the appellant and learned counsel for respondents no. 1 to 5 of the Power Grid Corporation of India Ltd. No one appears for respondent no. 6 although notice has validly been served on him.
The matter has come up under the heading "For Orders on Petition" for the consideration of I.A. No. 773/2009 which has been filed for grant of ad interim injunction restraining the respondents from fixing the poles and high tension wire on the lands of the plaintiff-appellant till the disposal of the appeal; however, with the consent of the parties 2 the appeal itself has been heard on merits and is being disposed of by the present order.
The Miscellaneous Appeal has been filed against the order dated 20.12.2008 passed by Subordinate Judge-I, Patna in Title Suit No. 467 of 2007 by which the injunction petition filed on behalf of the plaintiff-appellant has been rejected.
Title Suit No. 467 of 2007 was filed by the plaintiff- appellant for a declaration that the defendants have got no right to fix electric poles with high tension electric lines on the lands of the plaintiff, the suit land and for ad interim injunction restraining the defendants from fixing pole and electric wire on the suit land till the disposal of the suit.
By the impugned order dated 20.12.2008, the petition dated 3.11.2007 filed by the plaintiff-appellant under Order 39 Rules 1 and 2 and Section 151 C.P.C. to restrain the defendants from carrying the work of high tension electric line by fixing electric pole on the land of the plaintiff as given in Schedule of the plaint and for a further order to maintain status quo during the pendency of the suit, has been rejected.
Learned counsel for the appellant submits that he does not per se challenge the authority of the respondents to fix electric poles with high tension electric lines on the lands of the plaintiff but they are carrying out this task in the middle portion of the said land of the plaintiff as a result of which the entire land shall become useless and there would be eminent danger to 3 the life and property of the plaintiff and his men and other occupiers. It is further submitted that no consent or permission in writing was taken from the plaintiff. It is urged that the plaintiff would have no objection if the defendants shall carry out the high tension electrical lines by fixing pole through extreme east edge of the said land of the plaintiff.
Learned counsel for the respondents no. 1 to 5, on the other hand, relies upon the quadripartite agreement dated 29.5.2006 amongst the respondent-Power Grid Corporation of India Ltd., the Bihar State Electricity Board, Ministry of Power, Government of India and the Government of Bihar as the source of its authority to carry on the work over the land of the plaintiff. Learned counsel submits that it is well established by a catena of decisions that the Power Grid Corporation being a licensee under the Electricity Act having been conferred with the powers under Section 10 and other Sections of the Indian Telegraph Act, has the authority to place and maintain an electrical line under, over, along, or across and posts in or upon, any immovable property. It is further submitted that in exercise of such powers no permission of the owner of the land is required and in case of any damage sustained by any person interested in the property, any claim can only be raised under Clause (d) of the proviso to Section 10 of the Act and no injunction can be granted against the Power Grid Corporation. In this regard, learned counsel refers to the order dated 24.12.2003 issued by the Ministry of 4 Power in the Gazette of India dated 24.12.2003 (Annexure-A) by which in exercise of powers conferred under Section 164 of the Electricity Act, 2003, the Power Grid Corporation 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 to be established or maintained for the transmission of electricity etc. It is thus submitted that the respondent-Corporation is merely acting in exercise of powers conferred upon it to carry on the work of inter-State transmission of electricity which is for the benefit of the general public. The said work is part of a national scheme known as "Rastriya Sam Vikas Yojana". For the said reason also it is submitted by learned counsel that it is not a fit case for the grant of any injunction against the respondent- Corporation.
Learned counsel further submits that the petitioner has failed to show any provision of law for obtaining the relief of injunction claimed by him.
In support of the aforesaid proposition, learned counsel for the respondents relies upon a decision of this Court in the case of Arvind Kumar Vs The State of Bihar & Ors.:
2003(1) PLJR 487, in para-3 of which it has been laid down as follows:-
"On the last date of hearing learned counsel for the petitioner placed his reliance upon a judgment of this Court in the matter of Durgesh Nandani Vs. State of Bihar & others: 2000(1) All PLR 217 and contended that without the 5 permission of the land owner the respondents would not be entitled to fix the electric poles or take the over head line from the land of the land owner. The respondents submit before the Court that the said judgment in the matter of Durgesh Nandani was on its own facts. In the said matter from the land of the said petitioner the electric line was carried and when she wanted to use the property to its best she made an application to the Electricity Board under Section 17 of Indian Telegraph Act for removal/shifting of the electric poles. The State Electricity Board authorities in the said matter issued a bill to the said person, the said bill was challenged in C.W.J.C. No. 4536 of 1999. After hearing both the parties and taking into consideration the effect and impact of Sections 10 and 17 of Indian Telegraph Act so also of Rule 82 of 1956 Rules made under 1910 Act, in the said matter the High Court observed that if the land owner has not received any compensation/damages then he would not be liable to pay the charges for shifting/removal of the electric line. That judgment is not a authority to say that without the permission of the land owner the poles can not be fixed nor the over head line can be carried. If the powers are conferred upon an authority under the Statute then the statutory authority conferred upon such person is always required to be seen. It is also to be seen that Section 10 confers powers upon the Telegraph authority to carry the lines. Such powers have been conferred upon the authorities so that without facing any problems under the hands of the land owners etc. the lines are laid properly and the public service is done in accordance with law."
Learned counsel also relies upon a decision of the Jharkhand High Court in W.P.(C) No. 993 of 2007 (Ajay Munjal Memorial Trust & Others Vs. Power Grid Corporation of India Ltd. & others) in which by order dated 7.5.2007 the identical issue has been decided, in paras 7,8,13 and 14 of which it has been held as follows:-
"7. There cannot be any doubt that the 6 transmission project in question undertaken by the Licensee is of national importance. The project will benefit a number of persons/villages of different states including this State. Mr. Singh, appearing for the Company, stated that the project was to be completed by March, 2007 and it is on the verge of completion.
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.
13. Mr. Prasad also submitted that if a little diversion is made, it will cause least damage to the petitioners' interest. He further submitted that there has been some diversion in the line.
14. Such prayer also cannot be accepted. According to the respondents, it is not technically feasible to divert the line as suggested by the petitioners, as alignment of transmission line is made after detailed survey as per the topography of land with a view to cause least disturbance to the existing villages. Moreover, in a 418 kilometer transmission line, there has to be some diversion for route-alignment. If such prayer of petitioners is accepted then it will create a bad precedent and others may also ask for diversion of line. The respondents cannot be directed to erect the transmission line in a zigzag manner. The interests of individuals are to be give way to larger interest."
He further points out that the said order dated 7.5.2007 has been upheld by the Division Bench of the Court in LPA No. 202/2007.
On a consideration of the aforesaid submissions made by learned counsels for the appellant and respondent nos. 1 to 5, it is evident that learned counsel for the appellant has failed to 7 show any prima facie case for grant of injunction in his favour as admittedly he does not dispute the position of law settled by the decision of this Court and also of other Courts as stated in detail in the judgment dated 7.5. 2007 of the Jharkhand High Court in Ajay Munjal Memorial Trust & others case (supra) in which it was held that no consent of the owner is required before laying the poles or constructing any tower nor any prior notice is required to be given for the said purpose. Further, it is not open to the petitioner to claim diversion of the line along which the route has been fixed as the stand taken in the counter affidavit is that the work is for transmission of electricity and is being carried on as per the quadripartite agreement dated 29.5.2006 entered into between the Corporation, Bihar State Electricity Board, State Government and the Central Government and in terms of the approved survey report considering all aspects of techno- environmental economic criteria and no change of transmission line is possible.
In view of the aforesaid situation, this Court is of the view that learned counsel for the appellant has been unable to show any provision of law under which this Court ought to injunct the Corporation from carrying out its statutory duties under the Electricity Act read with the powers conferred upon it under the Indian Telegraph Act, 1885.
The work itself being of national importance and for the benefit of the general public, it cannot be said that any 8 balance of convenience is in favour of the appellant. The appellant will also not suffer any irreparable loss as Section 10(d) of the Indian Telegraph Act, 1885 takes care of any damage caused to the property of the person interested, who, in such circumstances, would be entitled to payment of full compensation.
Thus, in the light of the aforesaid discussions, there is no merit in the present Miscellaneous Appeal and it is accordingly dismissed.
( Ramesh Kumar Datta, J.) S. Pandey