Gujarat High Court
Jiviben Motibhai Patel vs Executive Engineer (C And M), Gujarat ... on 15 September, 1994
Equivalent citations: (1996)1GLR470
JUDGMENT J.N. Bhatt, J.
1. The challenge in this petition is against the order passed by the Deputy Secretary, Industries, Mines and Power Department, Government of Gujarat in the revision application preferred by the Gujarat Electricity Board, reversing the order of the Additional District Magistrate, Baroda, by invoking the provisions of Article 227 of the Constitution of India.
2. A few relevant material facts leading to filing of the petition may be stated at the outset. The petitioner preferred an application on 15-1-1969 under the provisions of Section 12 of the Indian Electricity Act, 1910 ('Electricity Act' for short) requesting the District Magistrate to direct respondent No. 1, Gujarat Electricity Board, ('the Board' for short) to remove the electric poles which are erected in his agricultural land bearing S. No. 646/2 in village Karjan, Baroda District and also for an order for payment of compensation on account of damages caused to his crops and agricultural land.
3. The petitioner's case before the District Magistrate, Baroda in the said application was that the Board, without his consent and despite his objection, illegally placed two poles in his field damaging his crops in a part of the land. It was also contended that the said action of giving electric connection by the Board could have been conveniently and more easily done by taking it from the northern side of the Karjan Society where the said line was existing to the extreme north of the land on which the said Society was existing.
4. Thus, the contention of the petitioner was that the Board could have taken direct and straight line from the existing line without disturbing his field. Despite the objection, the poles were placed in his field. Therefore, he requested that the poles should be removed and compensation should be paid to him as the action was illegal. He entered into correspondence with the officers of the Board but as there was no response to his request for removal of poles from his field, he filed the application under Section 12 of the Electricity Act before the District Magistrate, Baroda.
5. The Board, while opposing the said application, inter alia contended that the action of the Board in putting the poles and taking electric connection on and over the field of the petitioner was legal. The Board also relied on provisions of Section 51 of the Electricity Act and contended that the provisions of Section 42 are not applicable. The Board also placed reliance on the notification dated 5-4-1966 issued by the Government of Gujarat, exercising powers under Section 51 of the Electricity Act.
6. After hearing the parties and considering the facts and circumstances, the Additional District Magistrate, Baroda held in favour of the petitioner. He directed that the service line which was passing through the petitioner's land should be removed at the cost of the Board and the service line may be provided by the Board for the purpose of supply of energy to Padra Ginning and Pressing Society on the Government land. The Board was directed to complete the removal work within three months from the date of the order, like that, 13-12-1972. It was also directed that the Board should pay compensation of Rs. 125/- to the petitioner.
7. Being dissatisfied with the order of the Additional District Magistrate, Baroda, the Board preferred a revision application before the State of Gujarat under Section 12(4) of the Electricity Act. After hearing both the parties and examining the legal position, the Deputy Secretary to the Government, Industries, Mines and Power Department, allowed the revision application and quashed the order of the Additional District Magistrate. Therefore, the original applicant has come up before this Court challenging the said order of the Government passed on 20-6-1981, by filing this petition under Article 227 of the Constitution of India.
8. The learned Advocate for the petitioner has firstly contended that the impugned order passed by the Government is illegal and contrary to the provisions of Sections 12, 28 and 42 of the Electricity Act. It is submitted on behalf of the petitioner that provisions of Section 12 of the Electricity Act will not apply as the action of the Board is without consent of the owner of the land, viz., the petitioner. It is further submitted that provisions of Section 42 of the Electricity (Supply) Act, 1948 also will not apply in the present case as there was no sanctioned scheme. Thus, relying on the provisions of Section 12 of the Electricity Act and Section 42 of the Electricity (Supply) Act, it has been vehemently contended that the action of the Board in placing the poles in the field of the petitioner without his consent and in absence of any sanctioned scheme, as provided in Section 28 of the Electricity (Supply) Act, is illegal and without any authority and, therefore, the order of the Additional District Magistrate should be restored.
9. The aforesaid submissions are vehemently opposed for and on behalf of the respondents.
10. The Electricity Act is designed to make provisions for supply and use of electric energy; whereas the Electricity (Supply) Act makes provisions for rationalisation of the production and supply of electricity and also general provisions for taking measures conducive to electrical development and for all matters incidental thereto.
11. In order to appreciate the aforesaid rival contentions, it would be expedient to refer to the scheme and object of both the Statutes. In Part II of the Electricity Act, important provisions are made for supply of energy. In order to supply energy to the consumer and for that purpose to provide service line and supply line, powers are given to the Board or licensee, The imporatnt right of licensee to lay down or place supply line is provided under Section 12. Section 12(1) vests in all licensees sufficient power to enable them to lay down or place electric supply lines for transmission of energy from generating station to consumer. Section 12 reads as under:
12. (1) Any licensee may, from time to time but subject always to the terms and conditions of his licence, within the area of supply, or, when permitted by the terms of his licence to lay down or place electric supply lines without the area of supply, without that area:
(a) open and break up the soil and pavement of any street, railway or tramway ;
(b) open and break up any sewer, drain or tunnel in or under any street, railway or tramway;
(c) lay down and place electric supply lines and other works;
(d) repair, alter or remove the same; and
(e) do all other acts necessary for the due supply of energy.
(2) Nothing contained in Sub-section (1) shall be deemed to authorise or empower a licensee, without the consent of the local authority or of the owner or occupier concerned, as the case may be, to lay down or lay 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 over-head line or any stay or strut required for the sole purpose of securing in position any support of 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 at 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 strut to be removed or altered.
(3) When making an order under Sub-section (2) the District Magistrate or the Commissioner of Police as the case may be, shall fix the amount of compensation or of annual rent, or of both, which should in his opinion be paid by the licensee to the owner or occupier.
(4) Every order made by a District Magistrate or a Commissioner of Police under Sub-section (2) shall be subject to revision by the State Government.
(5) Nothing contained in Sub-section (1) shall be deemed to authorise or empower any licensee to open or break up any street not repairable by the Central Government or the State Government or a local authority, or any railway or tramway, except such street, railways, or tramways (if any), or such parts thereof, as he is specially authorised to break up by his licence, without the written consent of the person by whom the street is repairable or of the person for the time being entitled to work the railway or tramway, unless with the written consent of the State Government:
Provided that the State Government shall not give any such consent as aforesaid, until the licensee has given notice by advertisement or otherwise as the State Government may direct and within such period as the State Government may fix in this behalf to the person above referred to, and until all representations or objections received in accordance with the notice have been considered by the State Government.
(6) In this section occupier of any building or land means a person in lawful occupation of that building or land.
It would, therefore, very well be seen from the provisions of Sub-section (1) of Section 12 that the licensee may:
(a) open and break up the soil and pavement of any street, railway or tramway;
(b) open and break up any sewer, drain or tunnel in or under any street, railway or tramway;
(c) lay down and place electric supply lines and other works;
(d) repair, alter or remove the same; and
(e) do all other acts necessary for the due supply of energy.
12. The remaining sub-sections of Section 12 and Sections 13 to 19 make provisions for restrictions on the general powers granted by Sub-section (1) of Section 12.
13. Section 12(2) provides that consent of the local authority or owner or occupier, as the case may be, ought to be taken in the following cases:
(a) when electric supply line or other works are required to be laid or placed in any building;
(b) when electric supply line or other works are required to be placed on, over or under any land not dedicated to public use; and
(c) when electric supply line or other work have not already been lawfully laid down or placed by such licensee that is laying or placing any supply line or other work is carried out for the first time either in the building or land. In each of the above cases, consent of either the owner or occupier or the local authority concerned, is a must. It is, therefore, clear from the scheme of provisions of Section 12 as aforesaid, that the act of placing of poles and over-head line in a private property will be without authority in the absence of any prior permission of the District Magistrate when resistence is offered by the owner or occupier of the private property. Thus, it is true that initiation of the proceedings against such owner for resisting wire pole in his land without his consent, is illegal. When objection or resistence is made, the Board has to approach the District Magistrate or the Commissioner of Police, as the case may be. Thus, it can be seen that notwithstanding the objection of the owner or occupier of a private building or land, with the order of the District Magistrate or in the Presidency town, the Commissioner of Police, the Board can carry out works mentioned in Sub-section (1) of Section 12.
14. The question which would now require to be adjudicated upon is - As to whether or not, in the present case, the order of the District Magistrate of Baroda was required. For that, the petitioner has to show that he had raised the objection or any resistence before the completion of work. The objection or resistence contemplated under Section 12(2) is before the conclusion of the work undertaken by the licensee (the Board) as provided under Section 12(1).
15. It is true that without consent of the owner of the private property, the works enumerated in Sub-section (1) of Section 12 cannot be executed and carried out. In case of any objection or resistence, order of the District Magistrate or Commissioner of Police as the case may be, is required. The contention of the petitioner is that the work is done in his field without his consent and despite his objection. If it is established that the work is done by the Board or licensee, in such a situation, without his consent and despite the objection or resistence by the owner or occupier of a private property, it would be definitely unauthorised and illegal action. Therefore, it has got to be shown to the Court that there was resistence or objection.
16. In light of the facts and circumstances emerging from the record of the present case, there is no hesitation in finding that the objection or resistence was never raised by the petitioner before completion of the work. The contention that objection was raised by the petitioner being owner of the field when the work was started and before its completion, is not correct and sustainable in light of the facts of the present case. It is also very clear from the first para of the petition that the petitioner has stated therein that she and her husband came to know about installation of two poles later on, in the month of January 1968. It is specifically stated by the petitioner that the servants of the Board entered into the land and dug out two big pits and put up two poles. Therefore, the contention that the work carried out by the Board despite resistence and objection and without obtaining prior permission of the District Magistrate, is not sustainable. It is found on facts that the work was done and thereafter objection was raised. The act of placing poles and laying down over-head line in the private property can be said to be unauthorised in the absence of prior permission of the District Magistrate when resistence is offered by the owner of the private property. The petitioner has not been able to show that resistence or objection was raised before completion of the work by the Board. Therefore, the contention that provisions of Section 12(2) are attracted cannot be accepted.
17. It is also submitted that provisions of Section 42 of the Electricity (Supply) Act will not apply to the facts of the present case as there was no sanctioned scheme. It is pointed out that under Section 28 of the said Act, there is a provision for preparation and sanctioning of scheme. Section 42 gives power to the Board for placing wires, poles etc., notwithstanding anything contained in Sections 12 to 16, 18 and 19 of the Electricity Act. Section 42 reads as under:
42. (1) Notwithstanding anything contained in Sections 12 to 16 and 18 and 19 of the Indian Electricity Act, 1910 (IX 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 appliances for the transmission of electricity, or for the transmission of telegraphic or telephonic communications necessary for the proper co-ordination of the works of the Board, all the powers which the telegraph authority possesses under Part 11 of the Indian Telegraphs Act, 1885 (XIII of 1885) with regard to a telegraph established or maintained by the Government or to be so established or maintained:
Provided that where a sanctioned scheme does not make such provision as aforesaid, all the provisions of Sections 12 to 19 of the first mentioned Act shall apply to the works of the Board.
(2) A generating company may, for the placing of wires, poles, wall brackets, stays, apparatus and appliances for the transmission of electricity, or for the transmission of telegraphic or telephonic communications necessary for the proper co-ordination of the works of the generating company, exercise all or any of the powers which the Board may exercise under Sub-section (1) and subject to the conditions referred to therein.
18. It is very clear from the aforesaid provisions of Section 42 that certain powers are conferred on the Board for placing of any wires, poles, wall brackets, stays, apparatus and appliances for transmission and distribution of electricity or for transmission of telegraphic or telephonic communications necessary for proper coordination of the work of the Board. These powers are (i) when the provision in this behalf is made in the sanctioned scheme, all the powers that the telegraph authority possesses under Part III of the Indian Telegraphs Act, 1885 and (ii) when no such provision is made in the sanctioned scheme, all the powers under Sections 12 to 19 of the Indian Electricity Act would apply. Section 42(2) confers similar powers on generating companies. For invoking the provisions of Section 42, for placing, maintaining or taking any wires, poles and appliances for the transmission or distribution of electricity, there must be provision in the sanctioned scheme. Thus, Section 42 contemplates existence of sanctioned scheme. So, when no such scheme exists, the power is non est.
19. It becomes, therefore, clear from the aforesaid provisions that the entire mechanism and the scheme of Section 42 is that where the sanctioned scheme gives powers, the Board or generating company shall exercise such powers. When the sanctioned scheme does not confer such power, the Board or the generating company has no option but to take recourse to the provisions of Sections 12 to 19 of the Electricity Act. No doubt, in each case, however, the Board shall be bound by the express provisions of Section 17 of the Electricity Act. In view of Section 42 read with Part III of the Indian Telegraph Act, the generating company has also such powers to fix poles, wires, etc., in the agricultural land of a private person and that person cannot object either on the principles of natural justice or on the ground of unauthorised user. All he is entitled to is compensation provided for under the proviso (d) to Section 10 of the Telegraph Act. It is admitted that provisions of Section 17 are not attracted in the present case. The respondent-Board has not been able to show that there was a sanctioned scheme. Therefore, provisions of Section 42 are not applicable and this Court is in full agreement that the contention raised by the learned Advocate for the petitioner in this behalf.
20. Thus, it becomes clear that the Board cannot carry out works without the consent of owner or occupier, as the case may be, by invoking aids of provisions of Section 12 of the Electricity Act and also provisions of Section 42 of the Electricity (Supply) Act without sanctioned scheme. In the absence of any sanctioned scheme, as contemplated under Section 42 and without consent, the Board cannot carry out works without consent of the owner or occupier of the private property. Therefore, it is the case of the petitioner that without his consent, the work done in his field for laying poles and providing supply line is unauthorised and illegal. This contention is also without any substance in view of the notification issued by the State of Gujarat on 5-4-1966 in exercise of the powers conferred by Section 51 of the Electricity Act.
21. It would, therefore, be necessary to refer to the provisions of Section 51 of the Electricity Act. It reads as under:
Notwithstanding anything contained in Sections 12 to 16 (both inclusive) and Section 18 and 19, the State Government may, by order in writing, for the placing of electric supply line, appliances and apparatus for the transmission of energy or for the purpose of telephonic or telegraphic communications necessary for the proper coordination of works, confer upon any public officer, licensee or any other person engaged in the business of supplying energy to the public under this Act, subject to such conditions and restrictions (if any), as the State Government may think fit to impose and to the provisions of the Indian Telegraph Act, 1885, any of the powers which the telegraph authority possesses under that Act, with respect to the placing of telegraph lines and posts for the purposes of a telegraph established or maintained by the Government or to be so established or maintained.
The provisions of Section 51 of the Electricity Act are designed to empower the State Government to confer on the Board-licensee, certain powers which can be exercised by the telegraph authority under the Indian Telegraph Act. It does not by reference incorporate into the Electricity Act all the provisions of the Telegraph Act. Merely because some of the powers conferred under the Telegraph Act on the telegraph authority could be conferred on a licensee under the Electricity Act, it does not follow that all the rights and liabilities of a licensee under the Electricity Act are governed by the provisions of the Telegraph Act.
22. Section 51 makes a clear provision empowering the State Government by an order in writing to confer such powers of fixing of electric supply line, appliances and apparatus for the transmission of energy or for the purpose of telephonic or telegraphic communications necessary for proper co-ordination of works, upon a public officer, Board or licensee or any other person engaged in the business of supplying energy to the public under Section 28 of the Electricity Act, as are vested in telegraph authority under the Indian Telegraph Act. Therefore, there is no doubt in holding that provisions of Section 51 override provisions of Sections 12 to 16 and 18 and 19 of the Electricity Act. Those powers given to the State Government under Section 51 are undoubtedly wide and capable of affecting persons sometimes prejudicially. Be that as it may, the State Government is empowered to give powers to the Board or licensee for placing of electric supply lines, wires and apparatus for transmission and distribution of energy.
23. Pursuant to Section 51, the State of Gujarat had issued a notification dated 5-4-1966. There is no doubt about this aspect. Both the authorities below have considered this notification. The Government of Gujarat has conferred upon the Board the powers for placing electric supply line, appliances and apparatus for transmission and distribution of energy by the Board, wherever necessary, in the State of Gujarat, which the telegraph authority possesses under Sections 10 to 18 and 19A of the Indian Telegraph Act, with respect to the placing of telegraph lines and posts for the purposes of a telegraph established or maintained by the Government or to be so established or maintained. The powers conferred by the State on the Board are subject to conditions which are not material for the decision of the dispute in this petition. Therefore, the said conditions are not required to be examined or narrated in details.
24. Sections 10 to 19 and Section 34 of the Indian Telegraph Act deal with the powers of the telegraph authority with respect to placing electric lines, posts for the purpose of telegraph established or maintained or for the purposes of telegraph to be established or maintained by the Government.
25. It becomes very clear from the provisions of Sections 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 not 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 powers 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.
26. However, it may be noted that though consent of the owner or occupier, as the case may be, is not necessary, for doing the works as contemplated by the provisions of Section 12(1) of the Electricity Act when the objection or resistence is made, the authority is obliged to invoke provisions of Section 16(1) of the Indian Telegraph Act. A bare reading of Clause (d) of Section 10 read with Section 16 of the Indian Telegraph Act which is made applicable by virtue of Section 51 of the Electricity Act, would show that the Board has not got unrestricted powers to fix electric poles or to place over-head lines over the land of any person when there is any resistence or obstruction by that person. Section 16(1) of the Indian Telegraph Act provides that if in exercise of the powers conferred by Clause (d) of Section 10, there is any resistence or obstruction, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise those powers. Section 10 reads as under:
10. 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 power 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 damages sustained by them by reason of the exercise of those powers.
27. It can very well be seen from the aforesaid provisions that as such, Section 10 gives legal sanction for committing trespass which the telegraph authority would not have been entitled to commit, but for such sanction. Such transaction may result into some damages, but Clause (d) of Section 10 does not limit compensation of such damages only. It speaks of any damage sustained by reasonable exercise of such power. The legislature has thus intentionally rendered the scope wider to include compensation for any damages sustained either by the act authorised or in course of its execution. Section 10 also provides that the telegraph authority shall do as little damage as possible.
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 resistence in exercise of powers, then in that event, the authority is obliged to approach the District Magistrate. In absence of any resistence or obstruction, it would not be necessary at all for the authority to approach the District Magistrate. In the present case, no objection or resistence 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.
29. Lastly, the question posed for consideration is - As to the amount of compensation. No doubt, the petitioner is entitled to compensation. He is awarded Rs. 125/- by way of compensation by the Additional District Magistrate. In the opinion of this Court, the Additional District Magistrate was not competent to award any amount of compensation in view of the notification issued on 5-4-1966 in exercise of the powers conferred by Section 51 of the Indian Telegraph Act. Completion of the act of laying down poles and putting over-head line was done by the respondent-Board by virtue of the authority received or granted by the State of Gujarat, in exercise of the powers under Section 51 of the Electricity Act. Therefore, the provisions of Section 12 of the Electricity Act will not apply. Provisions of Section 10 of the Indian Telegraph Act would be attracted. In Clause (d) of Section 10, the Legislature has provided that the authority concerned in exercise of the powers under Section 10, shall do as little damage as possible and if it has exercised these powers in respeact of any property of a private person, the authority shall pay full compensation to the person interested for the damage sustained by that person, by reason of exercise of such powers.
30. In view of the aforesaid provisions, the compensation could be awarded by the Board and not the Additional District Magistrate, as provided under Section 12 of the Electricity Act. It is true that if adequacy of the compensation is challenged or the amount of compensation given by the Board/authority is not acceptable to the owner or occupier, the person affected thereby will have a right to approach the District Judge under Section 16. Section 16(3) provides that for the purpose of any dispute concerning sufficiency of the compensation to be paid under Clause (d) of Section 10, either of the disputing parties is entitled to approach the District Judge concerned within whose jurisdiction the property is situated for the purpose of determination of the amount of compensation.
The word 'compensation' no doubt is not statutorily defined. However, it would embrace in its purview any actual loss suffered by a party. For instance, if trees had to be cut or certain structure had to be altered or demolished, in that case, a question of paying compensation would arise but the question as to what loss a party would suffer in case he was prevented from making any construction or using the roof would not come within the meaning of the word 'compensation'. It would come under the wider definition of the word 'damages'. Unfortunately, the learned Additional District Magistrate at Baroda assumed that provisions of Section 12 applied and, therefore, granted compensation. In fact, the Board ought to have granted compensation and damages. There ought to be some damages to the property of the petitioner. Two poles are installed and the petitioner's case is that while installing the poles and putting of transmission or service line on or over the field, his crop is damaged. There is no material to show as to what was the exact damage suffered by the petitioner. However, since the matter is more than 17 years old, instead of directing the Board to decide the amount of compensation after hearing the petitioner and then to relegate the petitioner to the litigation in the Court of the District Judge concerned, it would be expedient and appropriate to exercise powers of this Court and award reasonable amount of compensation including damages to the petitioner. The Additional District Magistrate has awarded Rs. 125/- by way of compensation against the claim made by the petitioner. It is not clear from the record as to what was the original amount claimed by the petitioner. The compensation ought to have been paid immediately after completion of the work carried out by the Board. There is as such delay of more than one and half decades. Therefore, in the facts and circumstances of the case, it would be just and appropriate to award a sum of Rs. 2,500/- by way of compensation to the petitioner, including damages.
31. Having regard to the facts and circumstances enumerated hereinabove and in light of the relevant legal position discussed above, this Court is of the opinion that the present petition is meritless, and except the quantum of compensation, the entire petition deserves to be dismissed. Accordingly, the petition is partly allowed. The respondent-authorities are directed to pay a sum of Rs. 2,500/- by way of compensation to the petitioner. Rest of the petition is dismissed. Rule is made absolute accordingly, with no order as to costs.