Madras High Court
The Superintending Engineer, Tneb ... vs Thangaprakasam on 11 March, 1999
Equivalent citations: AIR1999MAD365, 1999(2)CTC614, AIR 1999 MADRAS 365, (2000) 1 MAD LW 556, (1999) 4 RECCIVR 68, (1999) 2 CURLJ(CCR) 513
ORDER
1. The revision petitioners are the defendants in O.S.No.664 of 1996 on the file of the District Munsif, Ponneri and the respondent is the sole plaintiff in that suit. That suit was filed for a permanent injunction restraining the defendants from digging or erecting any post in the suit property and drawing high tension supply line in and over the suit property. Pending suit, the plaintiff filed an application namely, I.A.No. 1701 of 1996 for an interim order which is more or less on the same lines as prayed for in the plaint. The learned trial Judge granted an order of injunction as prayed for. The defendants appealed in C.M.A. No. 28 of 1997 on the file of the Sub-Judge, Thiruvallur and the learned Appellate Judge dismissed the said appeal on merits. Hence the present revision before this Court at the instance of the defendants in the suit.
2. I heard Mr. V. Rengapashyam, learned counsel appearing for the revision petitioners and Mr. J. Pothiraj, learned counsel appearing for the respondent in this revision. The plaintiff is shown to be the owner of various extent of lands comprised in Survey Numbers 318/2, 321/1 and 322/3. The grievance of the plaintiff is that, as he is running a school in the said extent of land, the defendants should not be allowed to erect any towers in his lands for the purpose of installing electric posts for carrying high tension wires. According to the plaintiff, the defendants have no right to do so in his property and in any event, if they are allowed to do so, it is likely to endanger the inmates of the school. The said contention of the plaintiff has been accepted by the courts below, despite objections by the Electricity Board. The learned counsel for the Board would contend that except erecting a tower and installing posts for the purpose of carrying high tension wires, the Board is not claiming any other right in the property of the plaintiff. In other words, according to the learned counsel for the Board, the Board is claiming only a right of user over the plaintiff's property, which is statutorily protected. The argument of the Board's counsel is opposed by the learned counsel for the land owner/respondent stating that the Board has no unfettered right to act in the manner in which they are attempting to act and principles of natural justice is attracted to the case on hand. Therefore according to the learned counsel for the respondent, the landowner's consent should have been taken before the commencement of the work. The learned counsel for the owner of the land would also state that, if at all the Board wants to have the work done in the field of the plaintiff, then they must necessarily acquire the land under the provisions of the Land Acquisition Act.
3. In the context of the arguments advanced by the learned counsel on either side, I perused the order under challenge. There is a sanctioned Scheme dated 25.6.90 and the said Scheme is for establishing Gummidipoondi 230-110 KV Sub Station and additional work at Gummidipoondi 110 KV Sub Station and Panjetty 110 KV Sub Station. The estimated cost of the said Scheme is fixed at Rs. 1028 lakhs. The Scheme empowers the Board to exercise the powers of the Telegraph Authority under the provisions of Section 42 of the Electricity Supply Act and the Board shall not be bound by the Provisions of Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910. Sections 42 of the Electricity Supply Act specifically empowers the Board, notwithstanding anything contained in sections 12 to16,18 and 19 of the Indian Electricity Act, 1910, but without prejudice to the requirements of section 17 of that Act, where provision in such behalf is made in a sanctioned Scheme, to place any wires, poles, wall-brackets, etc...... for the transmission and distribution of electricity of the towers which the Telegraph Authority possesses under part 3 of the Indian Telegraph Act, 1885. Therefore the requirement of getting consent of the owner of the property before the work can be commenced as provided for under the Indian Electricity Act is dispensed with under section 42 of the Electricity Supply Act.
4. Inasmuch as the power of the Board is traceable to the power which the Telegraph Authority possesses under the Indian Telegraph Act, 1885, the said Act must be looked into necessarily to find out the authority of the Board in this case to do the proposed act which they intend to do under the sanctioned Scheme. Section 10 prescribes the power which the Telegraph Authority possesses. It speaks about the power of the Telegraph Authority to place and maintain telegraph lines and posts. The said section gives a power on the authority to place and maintain a telegraph line under, over, along, or across and posts in or upon, any immovable property. The proviso to section 10 contains four clauses namely, (a) to (d) Clause (a) states that the said power conferred under the opening part of section 10 shall not be exercised except for the purpose of a telegraph established or maintained by the authority mentioned therein. Clause (b) of the said proviso states that the 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 posts. Clause (c) of the said proviso imposes an obligation on the Telegraph Authority to get a prior permission from the local authority having control or management over the property sought to be utilised for such purposes. Clause (c) of the proviso is not applicable to this case, because the property is not under the control or management of any local authority. Clause (d) of the proviso states that in exercising the powers under section 10 of the said Act, the Telegraph Authority shall do as little damage as possible and when the power was exercised in respect of the property other than referred to in Clause (c) to the proviso, the Telegraph Authority shall pay full compensation to all the persons interested, for any damages sustained by them by reason of the exercise of those powers. Therefore a reading of Clause (d) of the proviso to section 10 of the Indian Telegraph Act would show that the person like the plaintiff is only entitled to damages and nothing more than that for the act of the Board on proof of any damages sustained by him. Disputes regarding compensation payable in case of a property other than that of. a local authority can be decided in the manner provided for under section 16 of the Indian Telegraph Act, 1885. A reading of section 42 of the Electricity supply Act, 1948; the sanctioned Scheme and section 10 and 16 of the Indian Telegraph Act, 1885 would show that the Board in this case has an unfettered power to go ahead with the work, which they intend to dp under the sanctioned Scheme in the property of the plaintiff in the suit, of course subject to his right to claim damages.
5. In support of this preposition, the learned counsel for the Board brought to my notice the following judgments:
(a) Rajak v. National Thermal Power Corporation Ltd., Indore, ; (b) Nithyanandham, M. & Two others v. Chairman Tamil Nadu Electricity Board, Madras 2 & 3and others, 1994 W.L.R. 445; (c) M.S.E.B. v. Janardhan Bhausaheb Desai, AIR Bom. 75.
The right of the Electricity Board to go ahead with the work, which is similar to the work in the case on hand, in the context of the relevant provisions of the Act referred to earlier, had been considered in the first two cases and it had been held that the right of the owner of the field is only to get compensation and that in view of section 42 of the Electricity Supply Act, the requirement to follow sections 12 to 16, 18 and 19 of the Indian Electricity, not attracted,
6. The cumulative effect of my discussion in the above the paragraphs would lead me to hold that when the Statute namely, the Electricity Supply Act read with sections 10 and 16 of the Indian Telegraph Act recognises the absolute power of the Electricity Board to proceed with the work of constructing concrete bases for installing high draw high tension wires for supply of electricity over the filed of an individual, subject to his right to claim damages, if proved. So long as the work is done by the Board is accordance with the sanctioned Scheme and in accordance with the provisions contained in the above referred to the enactments, it may not be within the framework of law to restrain them from doing so. By granting an order of injunction, the Board cannot be prevented from doing an act which is recognised by a Statute. The action of the board in the case on hand is in the larger interest of the public to have an undisturbed power supply. A huge sum of Rs, 1028 lakhs is lying idle and this Court is informed that except the proposed work in the field of the plaintiff in the suit, the remaining work had been completed:
7. Under these circumstances, I am of the opinion that the courts below have committed an error in law in granting an order of injunction in favour of the plaintiff, which will definitely apart from being against the statutory powers of the Board, affect the interest of the public at large. Accordingly the order granted in I.A.No. 1701 of 1996 in O.S.No. 664 of 1996 on the file of the District Munsif, Ponneri is affirmed by judgment dated 10.6.98 in C.M.A.N0.28 of 1997 will stand vacated. The C.R.P. is accordingly allowed and there will be no order as to costs.