Gujarat High Court
Gujarat State Energy Transmission ... vs Ratilal Maganji Brahmbhatt (Barot) on 6 November, 2020
Author: Vikram Nath
Bench: Vikram Nath, J.B.Pardiwala
C/LPA/534/2020 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 534 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 20373 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 20373 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH Sd
and
HONOURABLE MR. JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GUJARAT STATE ENERGY TRANSMISSION CORPORATION LIMITED,
Versus
RATILAL MAGANJI BRAHMBHATT (BAROT)
==========================================================
Appearance:
MR SP HASURKAR(345) for the Appellant(s) No. 1
for the Respondent(s) No. 2,3
MR. BHAUMIK DHOLARIA(7009) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
and
HONOURABLE MR. JUSTICE J.B.PARDIWALA
Date : 06/11/2020
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) Page 1 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT
1. In the peculiar facts and circumstances of the case and with the consent of the learned counsel appearing for the parties, we have decided to take up the main matter itself, i.e, the Special Civil Application No.20373 of 2019 for hearing.
2. This appeal under Clause 15 of the Letters Patent is at the instance of the original respondent No.2-Gujarat State Energy Transmission Corporation Ltd. and is directed against an interim order passed by a learned Single Judge of this Court dated 28 th August, 2020 in the Special Civil Application No.20373 of 2019, by which, the learned Single Judge ordered that the status-quo, earlier granted, shall continue.
3. The facts giving rise to this appeal may be summarized as under;
3.1 The original applicant is the owner and occupier of the agricultural land bearing Survey No.138 (New Survey No.147), situated at Moje Nadri, Taluka: Kalol, District: Gandhinagar. It appears that the appellant herein, i.e., the Gujarat State Energy Transmission Corporation Ltd. (for short "the Corporation") proposes to erect electric pole at the Location No.103 on the land of the writ applicant for the route of electricity line as a part of the project titled as 400KV C/C Wanakbori-Soja Line (AP 80 to Soja Gantry).
3.2 The writ applicant has a serious objection against erection of such electric pole by the Corporation in his agricultural land. According to the writ applicant, the part of the land on which the Corporation proposes to erect the pole would diminish the market value of the land in terms of money.
Page 2 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT3.3 It is the case of the writ applicant that the Corporation should change the alignment, i.e., the route and erect the poles in the Government waste land or Gauchar land easily available.
3.4 It is his case that various objections were raised by all those affected persons before the District Magistrate, Gandhinagar under the provisions of Section 16 of the Indian Telegraph Act, 1885. However, the District Magistrate, by the impugned order dated 12.02.2019 overruled those objections and permitted the Corporation to proceed with the erection of the poles.
3.5 The writ applicant, being dissatisfied with the impugned order passed by the District Magistrate came before this Court by filing the Special Civil Application No.20373 of 2019.
3.6 It appears that notice was ordered to be issued to the other side and the learned Single Judge also directed that status-quo be maintained.
3.7 The Corporation has come up with the present appeal against the interim order passed by the learned Single Judge dated 28th August, 2020 redressing the grievance that the order of status-quo passed by the learned Single Judge has stalled the entire public project. The Corporation wants this Court to vacate the interim order of status-quo and permit the project to go ahead.
Submissions on behalf of the appellant:-
4. Mr. S.P. Hasurkar, the learned counsel appearing for the Corporation vehemently submitted that the learned Single Judge ought not to have passed an order of status-quo thereby putting Page 3 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT the entire public project in peril. Mr. Hasurkar pointed out that the objections raised by the affected persons including the writ applicant have been duly considered by the District Magistrate, Gandhinagar and, ultimately, the objections were held to be not sustainable in law.
5. Mr. Hasurkar would submit that the request of the writ applicant to change the route or alignment is not tenable in law. According to Mr. Hasurkar, the writ applicant has no legal right to say that the poles should not be erected in his agricultural farm and should be erected at some other place.
6. Mr. Hasurkar also submitted that the allegations levelled by the writ applicant of favoritism are baseless and without any foundation for the same.
7. In such circumstances, referred to above, Mr. Hasurkar prays that there being merit in his appeal, the same may be allowed and the main matter, i.,e the Special Civil Application No.20373 of 2019 be rejected.
Submissions on behalf of the writ applicant:-
8. Mr. Bhaumik Dholaria, the learned counsel appearing for the writ applicant vehemently submitted that the authority concerned ought to have first obtained the consent of his client for the purpose of erecting the pole. He would submit that as per Section 10(d) of the Act, 1885, the Telegraph Authority is obliged to ensure that little damage as possible is caused. According to Mr. Dholaria, if the location of the pole is not shifted, then his client may suffer an irreparable loss which cannot be compensated in terms of money. According to Mr. Dholaria, no sooner the pole is erected in the agricultural field of Page 4 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT his client, then the market value of the property would diminish. According to Mr. Dholaria, the Corporation should explore the possibility of changing the route and try to use Government waste land or Gauchar land for the purpose of erecting the poles.
9. Mr. Dholaria pointed out that the Corporation is also guilty of favoritism. According to Mr. Dholaria, one of the objectors at Serial No.34, namely, Shri Kanubhai Bababhai Parma, serving with the ACB has been able to manage, and though earlier his land was to be used for the purpose of erecting the pole, the authorities have now shifted the location. This, according to Mr. Dholaria, is nothing but outright favoritism.
10. Mr. Dholaria submitted that his case is squarely covered by a Division Bench decision of this Court in the case of Dilip Singh Chauhan vs. Gujarat Urja Vikas Nigam Limited, 2013 (34) GHJ 496.
11. In such circumstances, referred to above, Mr. Dholaria prays that there being merit in his matter, the appeal preferred by the Corporation may be dismissed and his Special Civil Application No.20373 of 2019 be allowed.
ANALYSIS
12. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the writ applicant is entitled to any of the reliefs prayed for by him in his writ application.
13. Section 164 of the Electricity Act, 2003 confers power upon Page 5 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT the Government for placing the electrical line or electrical plants for the transmission of electricity and the provisions of the Indian Telegraph Act, 1885 will be made applicable to the same for exercise of power thereon. Section 164 of the Act, 2003 reads as follows:
""164. Exercise of powers of Telegraph Authority in certain cases:-- 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 co- ordination 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 (13 of 1885), any of the powers which the telegraph authority possesses under that Act with respect to the placing of telegraphic lines and posts for the purposes of a telegraph established or maintained, by the Government or to be so established or maintained."
14. It appears that the State Government, in exercise of the powers conferred by Sub-section (1) of Section 39 of the Act, 2003 and in supersession of the Government Notification, Energy & Petrochemicals Department No.GHU-99-5-GEB-1198- 0329-K dated 25th January, 1999 has notified the Gujarat Energy Transmission Corporation Ltd., Vadodara, a subsidiary Company of the Gujarat Electricity Board as the State Transmission Utility with effect from 1st June, 2004. For the purpose of laying the electric line or electrical transmission of electricity, Section 164 of the Act, 2003 enables the Government or the authority to invoke the provisions under the Indian Telegraph Act, 1885.
15. Section 2 (20) of the Electricity Act, 2003 defines "electric Page 6 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT line" and the same read, as under:-
"(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."
16. The word "line" as defined under Section 2(40) reads thus;
"(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; "
17. The word "overhead line" as defined under Section 2(48) reads as under:
"(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;
18. Section 68 of the Electricity Act, 2003, deals with the 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 Page 7 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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) 19 Sections 173, 174 and 175, deal with the Inconsistency in laws, Act to have overriding effect, and the provisions of the Act, 2003 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 Page 8 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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 there 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."
20. Section 185 of the Electricity Act, 2003 deals with the 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.Page 9 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT
(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. "
21. 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 Page 10 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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 Page 11 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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 Page 12 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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."
22. Section 42 of the Electricity (Supply) Act,1948, deals with the 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 Page 13 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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."
23. 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 this 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."
24. Rule 3 of the Work of Licensee Rules, 2006 reads as under:-
Page 14 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT"3. Licensee to carry out works. -(1) A licensee may - (a) carry out works, lay down or place any electric supply line or other works in, thorough, or against any building, or on, over or under any land whereon, where-over or where-under any electric supply-line or works has not already been lawfully laid down or placed by such licensee, with the prior consent of the owner or occupier of any building or land; (b) fix any support of overhead line or any stay or strut required for the purpose of securing in position any support of an overhead line on any building or land or having been so fixed, may alter such support; Provided that in case where the owner or occupier of the building or land raises objections in respect of works to be carried out under this rule, the licensee shall obtain permission in writing from the District Magistrate or the Commissioner off Police or any other officer authorized by the State Government in this behalf, for carrying out the works: Provided further that if at any time, the owner or occupier of any building or land on which any works have been carried out or any support of an overhead line, stay or strut has been fixed shows sufficient cause, the District Magistrate or the Commissioner of Police, or the officer authorized may by order) in writing direct for any such works, support, stay or strut to be removed or altered. (2) When making of an order under sub-rule (1), the District Magistrate or the Commissioner of Police or the officer so authorized, as the case may be, shall fix, after considering the representations of the concerned persons, if any, the amount of compensation or of annual rent, or of both, which should in his opinion be paid by the licensee to the owner or occupier. (3) Every order made by a District Magistrate or a Commissioner of Police or an authorized officer under sub-rule (1) shall be subject to revision by the Appropriate Cormmission. (4) Nothing contained in this rule shall effect the powers conferred upon any licensee under section 164 of the Act."
25. Sections 10, 12 and 16 respectively of the Act, 1885 reads as follows;
"Sec. 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 Page 15 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT upon, any immovable property;
Provided that--
(a) the telegraph authority shall not exercise the powers conferred by this section except for the purpose of a telegraph established or maintained by the (Central Government) or to be so established or maintained;
(b) the (Central Government) shall not acquire any right other than that of user only in the property under, over, along, across, in or upon which the telegraph authority places any telegraph line or post; and
(c) except as 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."
Sec. 12. Power for local authority to give permission under section 10, clause (c), subject to conditions:-- Any permission given by a local authority under Section 10, clause (c) may be given subject to such reasonable conditions as that authority thinks fit to impose, as to the payment of any expenses to which the authority will necessarily be put in consequence of the exercise of the powers conferred by that section, or as to the time or mode of execution of any work, or as to any other thing connected with or relative to any work undertaken by the telegraph authority under those powers."
Sec.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 Page 16 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT discretion, order that the telegraph authority shall be permitted to exercise them.
(2) If, after the making of an older 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 that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him. (4) If any dispute arises as to the persons entitled to receive compensation, or as to the proportions in which the persons interested are entitled to share in it, the telegraph authority may pay into the Court of the District Judge such amount as he deems sufficient or, where all the disputing parties have in writing admitted the amount tendered to be sufficient or the amount has been determined under sub-section (3), that amount; and the District Judge, after giving notice to the parties and hearing such of them as desire to be heard, shall determine the persons entitled to receive the compensation or, as the case may be, the proportions in which the persons interested are entitled to share in it. (5) Every determination of a dispute by a District Judge under sub-section (3), or sub-section (4) shall be final:
Provided that nothing in this sub-section shall affect the right of any person to recover by suit the whole or any part of any compensation paid by the telegraph authority, from the person who has received the same."
26. The plain reading of Section 10(b) reveals that the Telegraph Authority has been conferred with the power to place and maintain the telegraph line under, over, along, or across the line in any immovable property and sub-section (d) thereof casts obligation upon the telegraph authority to do as little damage as possible, and it also requires the telegraph authority to pay full compensation to all the persons interested for the damages Page 17 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT sustained by them by reasons of exercise of the said powers. It is to be noted that the provisions of Section 10 does not make any distinction between the initial erection or its continuation. The section itself begins by using the words "from time to time". Thus, if the power is to be exercised from time to time, it is apparent that after the erection is completed, the authority has been empowered to exercise powers under Section 10 even for the purposes of maintenance and the said powers are required to be exercised for the repairs, alteration etc. because the lines/wires are placed on the property of other person.
27. Keeping in view the provisions of Section 164 of the Act, 2003 read with Section 10 of the Act, 1885, the question of consent of any kind for erecting the poles and transmission lines on a private land is certainly not required. The writ applicant in this case has asked for reallocation of the line on the premise that if the pole is erected in his property, the same would diminish the market value of the property and there is statutory obligation cast upon the authority to ensure that minimal damage is caused.
28. 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. 2 to put to individuals, who owned the land on notice. Admittedly, the respondent No. 2 has got the power under Sections 10 and 16 of the Indian Telegraph Act, 1885. Such a power has been conferred upon the respondent No. 2 in the 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 Page 18 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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 the mechanism of compensation, the writ applicant as such can have no grievance.
29. Section 16 of the Indian Telegraph Act provides for a mechanism by which the respondent No. 2 can approach the third respondent, if there is an obstruction or resistance. It is not necessary that in each and every case, the respondent No. 2 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. 3, i.e, the District Magistrate 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. 2 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 a 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 Page 19 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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 I.P.C, 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."
30. Mr. Dholaria has placed strong reliance on the decision of this Court in the case of Dilip Singh Chauhan (supra). In the said case, this Court summarized the position of law as under;
"(a) When any Electricity Company or its officers are delegated the power of the Telegraph Authority under the Telegraph Act by virtue of the notification issued by appropriate Government under Section 164 of the Act, such delegatee of the power is discharging the statutory function and, therefore, the writ petition under Article 226 of the Constitution is maintainable.
(b) Section 164 of the Act provides for a separate mode for laying down of electric line by conferment of power of the Telegraph Authority and if such powers are conferred upon any Electricity Company or its officers by appropriate Government, the power can be exercised as that of the Telegraph Authority under the Telegraph Act for laying down the lines.Page 20 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT
(c) In absence of any specific delegation of power under Section 164 of the Act, the course available to the Electricity Company or its officers for laying down of the line is only under Section 67 of the Act read with the Rules of 2006.
(d) Non-availability of non-abstain clause under Section 164 of the Act would not result into curtailment of the operation of Section 164 of the Act, since a separate mode for conferment of power and consequently for laying down of the line is expressly provided by the statute. However, appropriate Government has to apply its wisdom, keeping in view the larger public interest as to whether it is a fit case to impose and confer the powers as that of the Telegraph Authority upon any licensee or any other persons engaged in the business of supplying electricity or any public officer or not. While exercising such power, appropriate Government may provide for certain conditions and the restrictions to be observed.
(e) As per the Electricity Act any licensee in absence of any specific conferment of power under Section 164 of the Act as that of the Telegraph Authority for laying down of the work has to follow the procedure as provided under Section 67 read with the Rules of 2006. Such would include the consent of the owner or the occupier for laying down of the line and if the consent is not granted or the objection is raised, the licensee has to get the permission of the District Magistrate or the Commissioner of the Police or the officer so authorized, as the case may be, but while granting permission, the District Magistrate or the Commissioner of Police or the officer so authorized has to fix the amount of compensation or annual rent or both, which as per his opinion should be paid by the licensee to the owner or occupier. The order of the District Magistrate or the Commissioner of Police or the officer so authorized is subject to revisional power of appropriate Commission.
(f) In case of exercise of power under Telegraph Act on account of conferment of such power upon the licensee by appropriate Government under Section 164 of the Act, the power may be exercised by the licensee as Telegraph Authority for laying down of line. As per the provisions of Section 10(d) there is obligation upon the licensee to lay down the line, which causes the least damage and to pay appropriate compensation.
(g) While exercising the power as that of the Telegraph Page 21 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT Authority under the Telegraph Act, on account of the notification under Section 164 of the Act consent of the owner or occupier may not be required, but some reasonable prior intimation should be given to the owner or occupier, enabling him to exercise his right to resist or obstruct, may be on the ground that the principles of least damage is not followed or may be on the ground that appropriate compensation is not paid or otherwise. The moment there is resistance or obstruction by the owner or occupier, the licensee has to stop his work, if any, or to withdraw from the property of the owner or the occupier. Thereafter, the licensee may approach before the District Magistrate for permission to lay down the line and the District Magistrate in exercise of the power may grant permission, but while granting permission, he may be required to examine the observance of the principles of little damage as possible and thereafter the permission may be granted. If permission is so granted by the District Magistrate, thereafter the owner or occupier cannot interfere in the work of laying down of the line unless the order of the District Magistrate granting permission is carried before the higher forum and any prohibitory order is passed by the competent forum or competent Court known to law. While granting permission under Section 16(1), the District Magistrate is not required to examine the aspect of sufficiency of compensation.
(h) If the compensation is paid under Section 10(d) and the owner or occupier finds that the compensation paid is not sufficient in comparison to the damage caused or otherwise, the owner or occupier has right to approach before the District Judge under Section 16(4), who has to finalize the amount of compensation to be paid by the licensee to the owner or occupier. The decision of the District Judge is final, but subject to further order of any higher forum known to law. "
31. What is important to note in the above quoted judgment of this Court are the following observations as contained in Para- 66:
"Further, we have also found that the consent of the owner or occupier as required under Section 67(2) of Page 22 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT the Act read with the Rules of 2006 is not required when the electricity company or its officers proceed under Telegraph Act on account of the conferment of the power upon them by appropriate Government under Section 164 of the Act. Therefore, we do not find that there is any conflict in the view taken by us, but can rather be said as reiteration of the same view. In the earlier decision in the case of Himmatbhai Vallabhbhai Patel (supra) when the Division Bench of this Court had no occasion to examine the aspect of right for resistance or obstruction available to the owner or occupier under Section 16(1) of the Telegraph Act and when no view is expressed in the said decision, we do not find that the matter is further required to be referred to the Larger Bench."
32. The above quoted judgment of this Court in the case of Dilip Singh Chauhan (supra) has been considerably relied upon by the learned counsel appearing for the writ applicant to canvass the following;
(a) The telegraph authority is obliged to follow; (i) "do little damage to the property"; (ii) payment of full compensation; (iii) consider obstructions against the exercise of powers under Section 10(2) of the Act and (iv) if any obstruction is received, the authority is required to approach the District Magistrate under Section 16(1) of the Act and the District Magistrate is obliged to pass order to exercise such powers, and in case of dispute as to compensation on application, the issue may be adjudicated by the District Magistrate.
33. We shall now look into some of the relevant findings noted by the District Magistrate while considering the objections raised by the writ applicant and similarly situated aggrieved persons.
"Looking to the oral submissions, arguments, para wise Page 23 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT remarks and produced evidences of both the parties, it appears to be necessary that the Gujarat Energy Transmission Corporation should establish 400 k.v. double power line from Vanakbori to Soja in order to maintain consistency of power supply and supply of power distribution with stipulated voltage. Most of the work of the aforesaid line has completed. Only the poles remain to be erected in the aforesaid disputed land and therefore, it is impossible to modify the aforesaid line technically/economically. As the aforesaid project is in the interest of public, it is required to complete the same immediately and the project approved by the government is to be completed within time limit. Considering the aforesaid facts, creating hurdles in the project of public interest appears to be against principles of natural justice and the provisions contained in the prevailing rules in this regard. Therefore, the order as under is passed after duly considering objections submitted by farmers/respondents against establishing power line, submissions produced by the GETCO company, arguments submitted during hearing, provisions contained in the concerned laws and rules. "
34. Thus, it appears that there has been a substantial progress in the project, and as noted by the District Magistrate, it is very essential that the poles are erected at the earliest in public interest. It has been categorically observed by the District Magistrate that most of the work has been completed as a part of the project.
35. We shall now look into the averments made in the affidavit- in-reply filed on behalf of the respondent No.2, more particularly, with respect to the allegations levelled by the writ applicant of favoritism. We quote the same as under:-
"3. I state that petitioner's contention regarding changing of route for the benefit of some high ranking officer is misconceived in facts and law both and I deny the same. It is submitted that route is marginally changed purely for Page 24 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT technical considerations and huge economic advantage to the GETCO and not for benefit of such officer. Moreover, it is not even the case of the petitioner that due to such deviation now line is passing through his land. Petitioner has made wild allegations of favoritism simply on the basis of the vivid imagination on the basis of factual situation that line was earlier passing through his land and now the same is not passing through his land. Technical and economic advantage as referred hereinabove, and how and why the change is brought is elucidated as follows:
A) Petitioner's land is situated at a place which is coming much earlier in the route from where line is deviated.
Petitioner's land is survey no.138 which is falling 4 locations prior to the deviation. Petitioner's land was earlier falling in the route and now also falling in the route without any deviation. In other words so far as location in the land of the petitioner is concerned is not came into effect because change is made in the route.
B) It is stated that said officer has never obstructed the line being laid down from his field. The route is changed without even knowledge of the said owner purely for following technical reasons of advantageous situation due to such deviation; a) According to the earlier route planning, when we reached closer to the end substation we found that there is already one tower of different line is coming in the way which will have to be dismantled. Since the said tower was already carrying live conductors of different line we were required to obtain approval of the competent officer for such dismantling of the tower and transferring the lines on the tower of our line. At this point competent authority advised us instead dismantling existing tower and erecting new tower one pole can be saved and thereby expenses to the extent of Rs.35 to 40 lacs can be saved, and ROW compensation can also be saved. In this set of circumstances, route approval for new route was sought on 2.12.2017 and the same was approved on 01.-06.2018. Annexed herewith marked Annexure-R7 collectively are the copies of the said documents. b) None of the officers of GETCO was ever aware about the fact that location no.106 was falling in the land belonging to such officer. Such officer has also not approached at any time for obstructing or requesting any change of route from his land. We have already located tower on the border of his field and no tower Page 25 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT was falling in midst his land. He has already accepted the compensation for making way through his field. Annexed herewith marked Annexure-R8 collectively documents regarding the same. c) it is pertinent to note that similar to the location in the land of said officer large track of the land of the petitioners land is saved by selecting location on the border of the field and that is how only two legs of tower are falling in the land of the petitioner and two legs of the tower are falling in the land belonging to the adjoining owner. C) Deviation is approved by very competent officer who approved original route and deviation is made purely for technical reasons and for sizable economic advantage.
4) It is respectfully submitted that petitioner has referred order passed in Special Civil Application 13815 of 2019. Pursuant to the said order District Magistrate has undertaken the exercise as per order of this Hon'ble High Court and found that change in the route of line in question as suggested by petitioners in the said Special Civil Application is not possible. Annexed herewith marked Annexure-R9 is the copy of the order passed dated 04.02.2020 and translation thereof."
36. The following is discernible from the reply filed for and on behalf of the Corporation, as referred to above;
(i) The allegations of favoritism levelled by the writ applicant are baseless and without any foundation.
(ii) The route/alignment had to be changed a little on account of few technical glitches.
(iii) The land of the ACB Officer got excluded on account of the technical glitches, referred to above, and not due to any undue favour shown to the owner of the said parcel of land.
(iv) Even while the land of the ACB Officer was to be used for the purpose of erecting the tower, the land of the writ applicant was to be used for erecting the tower. It is not the case that because the land of the ACB Officer got excluded that the land of Page 26 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT the writ applicant came to be included.
37. The Supreme Court in the case of Power Grid Corporation of India Limited vs. Century Textiles & Industries Limited & Ors., reported in 2017 (5) SCC 143 has observed as under;
"20. It is not in dispute that in exercise of powers under the aforesaid provision, the Appropriate Government has conferred the powers of Telegraph Authority vide notification dated December 24, 2003 exercisable under Indian Telegraph Act, 1885 upon the Power Grid. It may also be mentioned that a Central Transmission Utility (CTU) is a deemed licensee under the second proviso to Section 14 of the Electricity Act, 2003. Power Grid is a Central Transmission Utility and is, therefore, a deemed licensee under the Electricity Act, 2003. This coupled with the fact that Power Grid is treated as Authority under the Indian Telegraph Act, 1885, it acquires all such powers which are vested in a Telegraph Authority under the provisions of the Indian Telegraph Act, 1885 including power to eliminate any obstruction in the laying down of power transmission lines. As per the provisions of the Indian Telegraph Act, 1885, unobstructed access to lay down telegraph and/or electricity transmission lines is an imperative in the larger public interest. Electrification of villages all over the country and availability of telegraph lines are the most essential requirements for growth and development of any country, economy and the well-being/progress of the citizens. The legislature has not permitted any kind of impediment/ obstruction in achieving this objective and through the scheme of the Indian Telegraph Act, 1885 empowering the licensee to lay telegraph lines, applied the same, as it is, for laying down the electricity transmission lines. Powers of the Telegraph Authority conferred by Sections 10, 15 and 16 of the Indian Telegraph Act, 1885, stand vested in and are enjoyed by the Power Grid. These provisions are reproduced below:
"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 Page 27 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT posts in or upon, any immovable property:
Provided that-
(a) the telegraph authority shall not exercise the powers conferred by this section except for the purposes of a telegraph established or maintained by the Central Government, or to be so established or maintained;
(b) the Central Government shall not acquire any right other than that of user only in the property under, over, along, across, in or upon which the telegraph authority places any telegraph line or post; and
(c) except as 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."
xx xx xx "15. Disputes between telegraph authority and local authority.-
(1) If any dispute arises between the telegraph authority and a local authority in consequence of the local authority refusing the permission referred to in section 10, clause (c), or prescribing any condition under section 12, or in consequence of the telegraph authority omitting to comply with a requisition made under section 13, or otherwise in respect of the exercise of the powers conferred by this Act, it shall be determined by such officer as the 1[Central Government] may appoint either generally or specially in this behalf.
(2) An appeal from the determination of the officer so appointed shall lie to the Central Government; and the order of the Central Government shall be final."
Page 28 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT"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, 1860 (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 that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him.
(4) If any dispute arises as to the persons entitled to receive compensation, or as to the proportions in which the persons interested are entitled to share in it, the telegraph authority may pay into the court of the District Judge such amount as he deems sufficient or, where all the disputing parties have in writing admitted the amount tendered to be sufficient or the amount has been determined under sub-section (3), that amount; and the District Judge, after giving notice to the parties and hearing such of them as desire to be heard, shall determine the persons entitled to receive the compensation or, as the case may be, the proportions in which the persons interested are entitled to share in it.
(5) Every determination of a dispute by a District Judge under sub-section (3), or sub-section (4) shall be final:Provided that nothing in this sub-section shall affect the right of any person to recover by suit the whole or any part Page 29 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT of any compensation paid by the telegraph authority, from the person who has received the same..."
21. Section 10 of the Indian Telegraph Act, 1885 empowers the Telegraph Authority to place and maintain a telegraph line under, over, along or across and posts in or upon any immovable property. The provision of Section 10(b) of the Indian Telegraph Act, 1885 makes it abundantly clear that while acquiring the power to lay down telegraph lines, the Central Government does not acquire any right other than that of user in the property. Further, Section 10(d) of the Indian Telegraph Act, 1885 obliges the Telegraph Authority to ensure that it causes as little damage as possible and that the Telegraph Authority shall also be obliged to pay full compensation to all person interested for any damage sustained by them by reason of the exercise of those powers.
22. As Power Grid is given the powers of Telegraph Authority, Rule 3(1) of the Rules, 2006 ceases to apply in the case of Power Grid by virtue of execution clause contained in sub-rule (4) of Rule 3 which reads as under:
"3(4). - Nothing contained in this rule shall effect the powers conferred upon any licensee under Section 164 of the Act."
23. We, thus, have no hesitation in rejecting the argument of the writ petitioner that the impugned action of the Power Grid was contrary to the provisions of the Electricity Act, 2003.
24. We also do not find that the action of the Power Grid, in the given circumstances, by not shifting the transmission lines was arbitrary. From the facts noted above, it becomes apparent that not only it was unfeasible to change the alignment as almost entire work had already been completed by the time the writ petitioner started protesting against this move, even otherwise, the Power Grid has given sufficient explanation to point out that all relevant factors/ aspects were kept in mind while laying down the impugned transmission lines. Such transmission lines had to be in straight line to the extent possible for eliminating loss of transmission. It is also explained that electricity Page 30 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT transmission is usually laid or crossed over agricultural land where minimum extent of land gets utilised for erecting towers and where agricultural activities are not prejudiced/obstructed in any manner. The purpose is to avoid buildings, religious places, ponds etc. while laying down these transmission lines. It is only when it becomes inevitable that towers are placed on the private lines to the minimum and least extent possible. That is what was tried to achieve in the instant case. Another important factor, which needs repetition at this stage is that no blasting is permissible within 300 mts from the 400KV line (already existing) or the tower structure. Mining of limestone can be taken up by adopting the methods other than use of explosive blasting- without damage to the tower foundation/ tower structure or the line, which can be accomplished by using jack hammer/pneumatic hammer with compressor so as to avoid any damage to the line or tower. This aspect has also been taken note of by the learned Single Judge of the High Court in the judgment dated March 11, 2008. The Division Bench did not differ with any of these findings. Accordingly, Civil Appeal No.10953 of 2016 preferred by the writ petitioner stands dismissed."
38. A Division Bench of this Court, to which one of us J.B. Pardiwala, J. was a party in the case of Himmarbhai Vallabhbhai Patel vs. Chief Engineer (Project) Gujarat Energy Transmission & Ors., reported in 2011 (2) GLH 781 dealt with the issue of suitability of the land sought to be used for any public purpose. We quote the relevant observations;
"49. We would also like to state that it is a settled position of law that suitability of the land sought to be acquired or used for any public purpose is not to be adjudged by the Court in exercise of power under Article 226 of the Constitution of India. It is for the appropriate authority/Government to decide as to which particular land would be more suitable for the public purpose in question. In this connection, reference can be made to a decision of the Supreme Court in the case of State of Punjab v. Gurdial Singh, reported in AIR 1980 SC 319. In Page 31 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT paragraph 8 of the reported decision, the Hon'ble Supreme Court has, inter alia, observed as follows:
This power to select is left to the responsible discretion of Government under the Act, subject to Articles 14, 19 and 31 (then). The Court is handcuffed in this jurisdiction and cannot raise its hand against what it thinks is a foolish choice. Wisdom in administrative action is the property of the executive and judicial circumspection keeps the court lock-jawed save where power has been polluted by oblique ends or is otherwise void on well-established grounds. The constitutional balance cannot be upset.
50. Again in the case of Ramgir Uttamgir Goswami v. State of Gujarat, reported in 1988 (1) GLR 502, the Hon'ble Supreme Court has, in paragraph 7 of the reported decision, observed that the assessment of suitability of the land proposed to be acquired for the concerned public purpose is primarily for the authority to consider. Paragraph 7 of the judgment reads as under:
"The next submission of Mr. Mehta was that the land acquisition authorities have failed to consider what were the other lands available which could have been more conveniently acquired for the public purpose referred to earlier. It was pointed out by him that in the writ petition, the Appellant (Petitioner) has alleged that he could have pointed out certain other lands and open spaces where the twelve families rendered homeless by the floods of Tapti river could have been housed. With reference to these allegations, the Respondents in their counter-affidavit filed before the Gujarat High Court have rightly pointed out that the Appellants had not given any details regarding other more suitable lands available for acquisition and hence it was not open to him to make a grievance on that score. Moreover, in paragraph 29 of the counter affidavit, the Respondents have pointed out that the lands referred to by the Appellant in his petition were not suitable for housing the victims of the floods because they were low-lying lands and not suitable for residential purposes. The assessment of suitability of the land proposed to be acquired for the concerned public purpose is primarily for the Land Acquisition Officer to consider and no good reason has been shown to us which could warrant interference with his decision. Moreover, we are satisfied that the Appellant had not even given proper particulars of the other lands which, Page 32 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT according to him, were available for acquisition and were more suitable for acquisition and hence he can make no grievance on the score of proper consideration not having been given to the question of acquiring of such lands."
39. The scheme of the Indian Telegraph Act, 1885, has been explained in a Full Bench decision of the 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.ﾵ"
(emphasis supplied) Page 33 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT
40. 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."
41. 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 the 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 Page 34 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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 had 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, came to be decreed and the appeal preferred by the Board also came to be 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 the Writ Petition No.5302 of 1992. The 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 Page 35 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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 Page 36 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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."
42. In Rajak and ors. vs. National Thermal Power Corporation Ltd., Indore and anr., reported in AIR 1988 Madhya Pradesh 172, a 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 Page 37 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT complied with.
43. In Jiviben Motibhai Patel v. Executive Engineer (C &M) Gujarat Electricity Board, Baroda reported in 1996 (1) GLR 470 :
1995 AIHC 6359, this 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.ﾵ"
Page 38 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT44. 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."
45. 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 Page 39 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT distribute electricity, The Madras High Court, 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 Page 40 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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. ﾵ 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 Page 41 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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."
46 In Ajay Munjal Memorial Trust v. Power Grid Corporation of India reported in AIR 2008 Jhar. 34, the Jharkand High Court Page 42 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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.Page 43 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT
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. ﾵ 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 Page 44 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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.ﾵ "
47. On the issues, 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, had been changed at the instance of certain influential persons and the respondents intended to draw the lines through the lands owned by them. They further contended that without obtaining any consent, the officials had trespassed into their lands. Despite the protest, poles were sought to be erected and hence, the writ petition. A contention had been raised that the respondents therein were bound to initiate proceedings under the laws of acquisition. In the counter affidavit filed in opposition, the A.P.Transco, rep., by its Managing Director, contended that the Government issued the G.O.Ms.No.115, dated 07-10-2003, authorizing the A.P. Transco to place the electricity lines for the transmission of electricity or for the purpose of telephonic or telegraphic Page 45 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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 the 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 Crore and if the line was not laid before 1st March, the department would be suffering a loss of Rs.12 Crore per day as the VTPS would be producing 500 MW power and the same had 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 had illegally entered into possession of their land, it was stated that the respondents had followed the procedure contemplated under the provisions of the Electricity Act, 2003 and that a Gazette notification had been issued on 17- 07-2007. Since no objections were received pursuant to the said Gazette notification, the 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 the necessary clearance and due to certain technical reasons, the proposal had been changed Page 46 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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 the 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.Page 47 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT
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 Page 48 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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. ﾵ 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 Page 49 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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. ﾵ 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. ﾵ 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. ﾵ 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 Page 50 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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.Page 51 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT
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. ﾵ 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 Page 52 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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 Page 53 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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.ﾵ"
48. 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 the light of Section 51 of The Indian Electricity Act, 1910, which is equivalent to Section 164 of the Electricity Act, 2003, empowering the Page 54 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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.
49. In the above reported case, on behalf of the appellant therein, it was 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 Division Bench had failed to notice that the order of the District Magistrate was not under Section 16, but under Section 17(3) of the said Act.
50. Another ground of challenge in the above reported case was that the impugned order of the 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.
51. It was urged in the above reported case that since the same had become final between the parties, there was no scope for any contrary order to be passed, as had been done in terms of the Page 55 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT impugned order of the 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.
52. It was 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.
53. Per contra, it was contended that the Government of India, in exercise of its powers conferred under Section 164 of the Electricity Act of 2003, had 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 the 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 Page 56 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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.ﾵ "
54. In Himmatbhai Vallabhbhai Patel (supra), the objection of the petitioner therein was that the poles were sought to be erected on his agricultural land 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 rejected. The contentions raised in the appeal, as formulated by the 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 Page 57 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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. ﾵ 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 Page 58 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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. ﾵ 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, Page 59 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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. ﾵ 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. ﾵ 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 Page 60 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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.ﾵ 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 Page 61 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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."
55. Before we conclude, we may also refer to a decision of the Bombay High Court in the case of Vivek Bajendra Singh vs. State Government of Maharashtra, reported in 2012 (4) BCR
116. In the said case, the challenge was to the constitutional validity of Section 164 of the Act, 2003 and Section 10 of the Act, 1885. The notification issued by the Government of Maharashtra under Section 164 of the Act, 2003, empowering the Maharashtra State Electricity Transmission Company Ltd. to exercise the powers of a telegraph authority for the purpose of laying of electric lines was also a subject matter of challenge. The petitioners therein also challenged the various orders passed by the District Magistrate under Section 16(1) of the Act, 1885, permitting the transmission company to exercise the powers of laying electric lines. The main contention raised on behalf of the Page 62 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT petitioners in the said case was that the entire scheme of the Act, 2003 and the Act, 1885 which provides for laying of electric lines is unconstitutional being violative of Article 14 of the Constitution of India because it does not provide for a hearing to the land owners before the route, over which the electric line is to pass, is decided or fixed. In other words, it was argued on behalf of the petitioners that if the Government proposes to lay down an electric line for transmission of energy from one point to another even at the planting stage, it must hear all the land owners on the route of the proposed electric line. It was argued that there being no such provision for hearing, Section 164 of the Act, 2003 and Section 10 of the Act, 1885 be declared as ultra vires Article 14 of the Constitution of India. It was also argued that Section 164 of the Act, 2003 is bad being arbitrary and violative of Article 14 of the Constitution as it empowers the appropriate Government to authorize a body such as a public office, licensee or any other person to exercise powers of a telegraph authority with respect to placing of telegraph lines and posts and without hearing the land owner.
56. A Division Bench of the Bombay High Court, speaking through Hon'ble Justice S.A. Bobde (as His Lordship then was) negatived all the contentions, referred to above, and held as under;
"The land of the petitioners, which is largely agricultural, fall within the meaning of the term "estate".
The term "rights" has been defined to include any rights vesting in a proprietor, sub-proprietor etc. vide Clause (b) of Sub-Article (2). Under the provisions of the Electricity Act, 2003 and the Indian Telegraph Act, 1885 in question, the Page 63 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT authorities, under directions of the Government, acquire several rights in estates. Those rights are in the nature of opening up and breaking up of the soil and pavement of any street, railway or tramway upon certain conditions, the power to lay overhead lines and for that purpose do all things necessary, including the removal of trees, structures and objects, vide Sections 67 and 68 of the Electricity Act, 2003 or the old Act of 1910. The authorities also acquire the rights over estates, such as the user of property under, over, along, across, in or upon which the telegraph authority places any line or post vide 10(b), the right to enter the property in order to repair or remove lines vide 11, the power to alter position of gas or water pipes or drains vide 14 and further to apply for an order for removing resistance or obstruction to the exercise of such a right by a District Magistrate. The effect of Clause (b) to the proviso to Section 10 of the Telegraph Act is that though the authority may place etc. a line upon any immovable property, the Central Government thereby does not acquire any right other than that of user only in the property. Thus, the provisions in question must be construed as law providing for the acquisition of rights in any estate within the meaning of Article 31A and, therefore, cannot be deemed to be void on the ground that they are inconsistent with or take away or breach any of the fundamental right conferred by Articles 14 or 19 of the Constitution. An executive act performed under the law in question, namely, of deciding to enter upon and entering the property of owners, is also not vitiated on the ground that the initial attempt to enter the property for the purpose of placing lines was not preceded by notice or hearing. As observed earlier, the scheme of the law is that the person offering resistance or obstruction is entitled to be heard when the transmission company applies for removal of such resistance and obstruction under Section 16(1). In our view, though not expressly provided for, the requirement of hearing must be read into Section 16 (i). We are informed that as a practice land owners are always heard when applications are made by a transmission company for removal of obstruction and resistance. The requirement to hear the owners or occupiers at this stage is, in our view, sufficient compliance with the rules of natural justice and, admittedly, in the present case all the petitioners have been heard by the District Magistrate.
It was contended by Mr. R.P. Joshi, the learned counsel for Page 64 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT the petitioners that to the extent the fundamental rights are part of the basic structure of the Constitution, even the validity of laws placed in the Nineth Schedule can be tested against the basic structure of the Constitution as held by the Supreme Court in I.R. Coelho (Dead) By LRs. vs. State of T.N.
- (2007) 2 SCC 1. No question of any immunity on the ground that the laws are placed in the Nineth Schedule arises here. In fact, we find that in Coelho's case the Supreme Court distinguished between the scheme of immunity provided by Article 31A and Article 31B. It observed in relation to Article 31A that, ".......Article 31-A does not exclude uncatalogued number of laws from challenge on the basis of Part III. It provides for a standard by which laws stand excluded from judicial review......."
Thus the reliance on the observations of the Supreme Court in Coelho's case for the proposition that it is not permissible to override the entire Part III of the Constitution by invoking Article 31A are misplaced.
Mr. Manohar relied on the judgment of the Supreme Court in K.T. Plantation Private Limited and anr. vs. State of Karnataka - (2011) 9 SCC 1 and submitted that the Supreme Court has reiterated that a law is immune from challenge on the ground of arbitrariness, unreasonableness under Article 14 of the Constitution of India. In the context of a law made by the Legislature of a State, the Supreme Court observed as follows:-
"208. We have already found, on facts as well as on law, that the impugned Act has got the assent of the President as required under the proviso to Article 31-A(1), hence, immune from challenge on the ground of arbitrariness, unreasonableness under Article 14 of the Constitution of India.
209. Statutes are many which though deprive a person of his property, have the protection of Article 30(1-A), Articles 31-A, 31-B, 31-C and hence are immune from challenge under Article 19 or Article 14, the basic structure and the rule of law, apart from the ground of legislative competence. In I.R. Coelho case the basic structure was defined in terms of fundamental rights as reflected under Articles 14, 15, 19, 20, 21 and 32. In that case the Court held that statutes mentioned in Schedule IX are immune from challenge on the Page 65 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT ground of violation of fundamental rights, but if such laws violate the basic structure, they no longer enjoy the immunity offered by Schedule IX."
19. Mr. Joshi, the learned counsel for the petitioners relied on the observations of the Supreme Court in the case of K.T. Plantation Pvt. Ltd. to the effect that a law, though protected by Article 31-A, may still be attacked on the ground that it violates the rule of law or basic structure of the Constitution. However, there is nothing in the present provisions which can be shown to have violated the rule of law or the basic structure of the Constitution. Mr. Joshi also relied on certain observations of the Supreme Court in Sahara India (Firm), Lucknow vs. Commissioner of Income Tax, Central-I and anr.
- (2008) 14 SCC 151 and submitted that a hearing is an essential requirement before an administrative action is taken. In Sahara India, however, the Supreme Court was considering, whether a hearing before an order under Section 142(2-A) of the Income Tax Act requiring special audit was necessary. The Supreme Court observed that, an order under the said provisions of the Income Tax Act leads to serious civil consequences and though the provision does not either provide or bar a pre-decision hearing, the principle of audi alteram partem will have to be read in such a provision.
20. Mr. Joshi also relied on the decisions of the Supreme Court in Raghbir Singh Sehrawat vs. State of Haryana and ors. - (2012) 1 SCC 792 and Darshanlal Nagpal (Dead) By LRs. vs. Government of NCT of Delhi and ors., where the Supreme Court discussed the importance of natural justice enshrined in Section 5A of the Land Acquisition Act before any person is deprived of his land by way of compulsory acquisition. The Supreme Court held that such a person must have an opportunity to oppose the decision of the State Government to acquire the particular parcel of land, particularly since he may also point out that the land proposed to be acquired is not suitable for the purpose specified in the notification issued under Section 4(1). The present case does not involve the acquisition of land but only the user by the State for a limited purpose, for which there is provision for payment of compensation. Moreover, it seems unreasonable to confer on the owners or occupiers of land a choice about what should be the route of the electric line and where it should be placed, since such a decision must yield Page 66 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT to the dictates of technical knowledge, expertise and viability. There is no doubt that if all owners and occupiers of land over hundreds of kilometers are allowed to have a say and object to the routes and if the validity of the orders passed under objection is allowed to be contested, the route may not get finalized for years. Having regard to the importance of electricity to the life of citizen, particularly to essential services and industry, such a procedure would be detrimental to public interest. Similarly, the observations in Darshanlal Nagpal's case, emphasizing the importance of the rules of natural justice cannot be applied to the present case. Apart from the fact that challenge on the ground of Article 14 is excluded by virtue of Article 31A, we are of the view that the present case calls for a situational exception and of necessity, the authorities may not be compelled to hear owners and occupiers before deciding on the route over which an electric line should be placed. Therefore, the contention that the legislative scheme, which does not require the authorities to hear the owners and occupiers of the land while planning the route of an electric line is unconstitutional, is rejected. So also the contention that Section 164 of the Electricity Act, 2003 and Section 10 of the Indian Telegraph Act, 1885 are void being violative of Article 14 is rejected.
We do not see any merit in the contention that the provisions are violative of Article 21 on the ground that they adversely affect the health of persons living in or around high tension lines. In the first place, the electric line in question, which is high tension 400 KV line is to be placed over agricultural fields and not over a residential area. Secondly, no proof is placed before the court to enable it to draw an inference that the placing of electric line causes cancer as alleged. We are unable to draw this inference on the basis of a report from Australia placed on record.
It was next contended on behalf of the petitioners that the action of the transmission company in placing the electrical line over the lands of the petitioners without obtaining the consent of the owner or occupier is violative of Section 12 (2) of the Electricity Act, 1910. Section 12(2) of the said Act reads as follows:-
12. Provisions as to the opening and breaking of streets, railways and tramways. - (1) ........ (2) Nothing contained in sub-section (1) shall be ig deemed to authorise or empower a Page 67 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT licensee, without the consent of the local authority or of the owner or occupier concerned, as the case may be, 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, whereover or whereunder any electric supply line or work has not already been lawfully laid down or placed by such licensee:
Provided that any support of an overhead line or any stay or strut required for the sole purpose of securing in position any support an over-head line may be fixed on any building or land or, having been so fixed may be altered, notwithstanding the objection of the owner or occupier of such building or land, if the District Magistrate or in a Presidency- town the Commissioner of Police by order in writing so directs:
Provided, also, that, if any time the owner or occupier of any building or land on which any such support, stay or strut has been fixed shows sufficient cause, the District Magistrate or, in a Presidency- town the Commissioner of Police may by order in writing direct any such support, stay or struct to be removed or altered.
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. Section 185 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 Page 68 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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 sub-section (1) of section ig 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 section 6 of the General Clauses Act, 1897 (10 of 1897), with regard to the effect of repeals.
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 Page 69 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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."
57. We take notice of the fact that in the above referred judgment of the Bombay High Court, the judgment of this Court in the case of Himmatbhai Vallabhbhai Patel (supra) has been relied upon and quoted with approval in Para-25.
Page 70 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT58. The final conclusions are as under:-
58.1 The Part III of the Telegraph Act, 1885, deals with the 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, the powers conferred on the telegraph authority to place and maintain telegraph lines and towers, are traceable to Sections 10, 11 and 14 of the Act, 1885 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.
58.2 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. The 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.
58.3 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 Page 71 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT telegraph authority is under an obligation to cause as little damage, as possible, and shall pay full compensation to all the persons interested for any damage sustained by them, while exercising the powers conferred under Section 10 of the Act.
58.4. 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 to be executed.
58.5 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.
58.6 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 the 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 Page 72 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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; "
58.7 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 may deem fit to impose and also subject to the provisions of the Indian Telegraph Act, 1885.
58.8 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 the 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.
58.9 Sections 16 and 17 respectively 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 Page 73 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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. 58.10 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 the 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, the 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.
58.11 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.
58.12 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 Page 74 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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.
58.13 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.
58.14 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 Page 75 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT concerned owner or occupier, may be required, under Section 12 (2) of the Indian Electricity Act, 1910.
58.15 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.
58.16 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 is 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 the powers to do so. The District Collector 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.
58.17 If the intention of the Legislature was to seek for consent or permission from every owner and if the right of such Page 76 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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 the 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.
58.18 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.
58.19 When a project involves huge expenditure, erection of many towers at various places and when such project Page 77 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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 any property is legally authorised, with payment of compensation to the land owner, no prior consent is required.
58.20 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.
58.21 Even if any Court issues 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.
58.22. 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-
Page 78 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENTEconomic Consideration.
58.23 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.
58.24 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.
58.25. 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.
58.26. 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.
58.27. The 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 Page 79 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT 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.
58.28. 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.
58.29. The 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 the Articles 14 and 21 respectively of the Constitution of India, which strive to achieve the Constitutional Goals, enshrined in the basic structure of the Constitution of India. [see T. Bhuvaneswari vs. The District Collector cum District Magistrate, Erode District, Erode, W.P. No.18548 of 2013, decided on 19.11.2013]
59. In the overall view of the matter, we are convinced that no case is made out by the writ applicant for grant of any relief. The Page 80 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020 C/LPA/534/2020 CAV JUDGMENT writ applicant, at any cost, wants to stall a very important public project by unnecessarily raising one objection or the other. If, ultimately, any damage is caused to his land, he would be adequately compensated in terms of money. However, it is difficult for us to accept the argument of Mr. Dholaria that as there is a statutory obligation cast upon the authority to ensure that minimal damage is caused, his client, as an affected person, has a right to ask the authority to shift the alignment or the route. In our opinion, the interpretation put forward by Mr. Dholariya of the expression "do little damage to property" is not tenable in law. By virtue of the same, Mr. Dholaria cannot contend that as the value of the land may get diminished, the authority should change the alignment and reallocate the route. The expression "do little damage to property", in our opinion, should be construed as to ensure that while laying the pole at the place allocated, minimal damage is caused at the time of erection. It is always open for the writ applicant to raise dispute with respect to the sufficiency of compensation under Section 16(4) of the Telegraph Act before the District Judge in accordance with law.
60. In the result, the appeal preferred by the Corporation is allowed. The interim order is hereby quashed and set aside. The Special Civil Application No.20373 of 2019 preferred by the original writ applicant is hereby rejected.
(VIKRAM NATH, CJ) (J. B. PARDIWALA, J) Vahid Page 81 of 81 Downloaded on : Sat Nov 07 06:58:53 IST 2020