Madras High Court
E. Venkatesan And Others vs Chairman, Tamil Nadu Electricity ... on 7 May, 1996
Equivalent citations: AIR1997MAD64, AIR 1997 MADRAS 64
ORDER
1. This Writ Petitions filed by four petitioners, who claim to be joint owners of O.39-5 hectares of lands in Survey No. 338/3. It is said that the land originally belonged to their mother Bhoopathi Ammal, and, on her death, the property devolved on them. It is said that having regard te the nature of interest the petitioners have got in the land, the only remedy open to the petitioners is recourse to Court by filing a joint petition. It is said that all the petitioners are co-owners of an extent of 1-52-0 hectares and the income therefrom is the only source of livelihood. It is said that there is no proceeding for land acquisition regarding the extent of 0-39-5 hectares of land or any other proceedings by the State to acquire the same for the purpose of Tamil Nadu Electricity Board. It is said that during the last week of November, 1995, men working under respondents 2 and 3, unlawfully entered into Survey No. 338/3 and dug pits for erecting poles in order to draw electric wires/cables over the same. On enquiry, the petitioners came to know that the respondents are to draw high tension wire over the lands and that the pits have been dug for the purpose of erecting poles serving as basement.
2. It is said that they have not been served with any notice seeking consent for such use of patta lands. In the absence of any consent of the owners of the patta lands, the respondents are not empowered and they do not have any jurisdiction or power or authority to enter into the patta lands, dig pits, erect poles or draw high tension wires over patta lands. Immediately on coming to know about the same the first petitioner sent a representation on 4-12-1995 under registered post acknowledgment due complaining about the illegal and unlawful action of the respondents and requested them not to draw high tension wires and they also wanted that the electric wires be drawn from the nearby poramboke land, which is available abundantly on the eastern side of the lands. It is further said that unless the procedure as contemplated under the relevant legislation relating to drawing up of high tension electricity lines through patta lines are complied with, by obtaining consent from the land owners, no high tension electricity lines can be taken through patta lands. It is, therefore, prayed that the respondents 1 to 3 may be restrained by a writ of prohibition or by a writ of mandamus forbearing them from erecting pole or drawing high tension wires or cables over the lands of an extent of 0.39.5 hectares, and for consequential reliefs.
3. A counter affidavit has been filed by the third respondent on behalf of all the respondents, where in it is stated that the Electricity Board has proposed yo erect a 110 kv Sub-section at Orikkai Kaneheepuram which will be fed by 110 kv D. C. line tapped off from Singaperumal Koil to Kanchee-puram 110 KV SC line. The total length of the line is 15 KM and number of towers involved is 68. This project is a sanctioned scheme tc the value of Rs. 7 crores as per B. P. No. (FB) 305 dated 18-12-1993. This project was published in the Tamil Nadu Government Gazette and also in English and Tamil daily newspapers during September 1995, as required under Sec. 28(3) of the Electricity Supply Act, 1948, forgeneral information of the public. The route of the transmission line has already been approved and this route is technically suitable and no alternative place was found feasible. It is further said that the laying of foundation for these towers commenced from July 1995 and tower erection works are being done from November 1995. It is also said that at the time of laying the foundation, the land was dry and there were no standing crops. Originally, the petitioners did not object at the time of field survey and preliminary works. The petitioners have not sent any representation as alleged in the affidavit. Now, laying of foundation for all the tower location has been completed and election of tower is in progress. It is further said that the total area occupied by the Board is only 9 sq. ft. in the entire land of 0.39.50 hectares. It is further said that the only contention raised by the petitioners is that the Electricity Board has no right in law to dig pits, erect poles or draw high tension wires over the patta lands and energising the same which is the act of trespass in private property to persons like the petitioners, without getting their consent. Section 42 of the Electricity Supply Act, 1948 gives authority for placing the poles or towers in private lands. It is further said that under Section 51 of the Indian Electricity Act, the Board can exercise the powers under Sections 10 to 19 and 19-A of Telegraph Act, 1885, for laying lines. It is further said that the Government has already issued Orders under Section 51 of the Electricity Act on 6-6-1961, as per G.O. Ms. No. 1455. In view of the power exercised under Telegraph Act reao with Electricity Act and also Electricity Supply Act, they are entilied to draw electric lines, and the petitioners are entitled to claim only compensation for damages, if any, caused to the property. It is further said that the interest of the public has to be taken into consideration, and not some damage that is alleged over a private land. It is said that in similar cases, this Court has refused to interfere under Article 226 of the Constitution. It is also said that what they have done is lawful, and the petitioners have no cause of action.
4. At the time of admission, a learned Judge of this Court passed an Order of injunction, and after the respondents entered appearance, they filed a counter, and wanted that injunction to be vacated. But the injunction was confirmed and the matter was taken in appeal as writ Appeal No, 393 of 1996. In the appeal, a direction was given for early disposal of the writ petition. That is how the writ petition itself has now come up for arguments, even though it was filed at the fag end of the year 1995.
5. The main grievance of the petitioners is that no portion of the land has been acquired and that they have not been given notice, and, without obtaining consent, respondents are drawing electric lines through their private land. According to them, the action of the respondents is illegal and, therefore, under Art. 226 of the Constitution, their action has to be interfered with.
6. The respondents, on the other hand, justify their action on the ground that they are legally entitled to enter the petitioners' property and draw electric lines and for that purpose, dig pits and also construct towers for drawing high tension wires. It is said that they are entitled to do such work under Section 42 of the Electricity Supply Act, read with Section 10 of the Telegraphic Act. They also justified their action by saying that notifications have been issued under Section 51 of the Electricity Act in the year 1961 itself.
7. Section 10 of the Indian Telegraph Act, 1885 reads thus :
"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 immoveable 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 places any telegraph line or post; and
(c) except as hereinafter provided, the telegraph authority shall not exercise those powers in respect of any properly vested in or under the control or mangement 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 ".
A reading of the said section makes it clear that the Central Government shall not acquire any right other than that of user only in the property under, over, along, across, in or upon which the telegraph authority places any telegraph line.
8. Under Section 51 of the Indian Electricity Act, 1910, may by order in writing, confer on any public officer, licensee or any other person engaged in the business of supplying energy to the public under this Act, any of the powers which the telegraph authority possesses under the Act, with respect to the placing of telegraph-lines and posts for the purposes of a telegraph established and maintained by the Government or to be so established or maintained. It is on the basis of this power, the Electricity Board says that they are entltied to draw electric line, and, for the said purpose, dug pits and instal towers. It is said that permission has already been granted as per Notification dated 6-6-1961. The grievance of the petitioners is that even if such a power is given, the respondents are not entitled to draw the line without obtaining their consent or without acquiring their land. How far the said contention is tenable, is to be considered.
9. As seen from the decision (Provash Chandra Sett v. Gouripore Electric Supply Co. Ltd. A learned Judge of that High Court said that for empowering Public Officers to perform the duties under the Telegraph Act, notice need not be given to any of the parties since no dispute was being decided. In that decision, it was held thus:--
"Section 51 does not require the State Government to determine or decide any dispute between two contending parties. Supposing the State Government was minded to confer upon the licensee powers which the telegraph authority possesses, in general terms, S. 51 or any other provision of the Electricity Act does not contain any provision whereby the State Government is required to hear any person or persons who may in future be affected by the exercise of such powers. Indeed when such general powers are sought to be conferred, it is not even known which person or persons may in future be affected by the exercise of such powers. Even when the power is conferred in restricted terms the State Government while exercising the powers under S. 51 is not called upon to decide a dispute arising out of a claim made by one party and opposition by the other and to determine the respective rights of the contesting parties. The State Government cannot be said to exercise a quasi-judicial power while conferring upon the licensee powers under S. 51 whether general or special, and the State Government is not required to give the party affected an opportunity of being heard.
An administrative power conferred by any statute upon any public authority must always be exercised reasonably and in good faith. Cases may arise where such a power cannot be said to have been exercised reasonably unless notice has been given to the person interested before the exercise of such power and such persons have been asked to show cause why the power should not be exercised. However, a provision for the giving of a notice ought not to be implied in S. 51. The giving of such a notice could not be reasonably insisted upon where the power was being conferred in general terms. Similarly, it is not incumbent upon the State Government to give such a notice even when the power is conferred in special or restricted terms".
10. . A similar question came for consideration before a Full Bench of the Kerala High Court, and the decision rendered thereon is corresponding to 1970 Ker LT 872 (Full Bench) Bharat Plywoods & T. Products v. El. Board). Their Lordships said that while invoking the power under Section 51 of the Electricity Act, the Authorities are not acquiring any land and, therefore, there is no question of any acquisition or requisition, as contended by the petitioners. Their Lordships held thus (At pp. 50-51 of AIR):--
"Any public officer, licensee or any other person on whom the powers of a Telegraph authority under Part III of the Telegraph Act have been conferred by the State Government under S. 51 has no power to take initiative for the acquisition of land under the Land Acquisition Act by virtue of the conferment of such power. There is no acquisition or requisition of land involved when the powers under S. 10 of the Telegraph Act are exercised. This is clear from the poriviso (b) to Sec. 10 of the Telegraph Act. The only right involved is the right of user of the property for the purposes mentioned in the Section. The fact that an authority on whom powers under Sec. 10 of the Telegraph Act have been conferred may have certain rights and that certain other authorities may take steps for acquisition of land for public purposes under the Land Acquisition Act cannot be the criterion for deciding he whether her the stadtutory provision in S. 51 of the Electricity Act or that in S. 10 of the Telegraph Act is discriminatory. The power to acquire under the Land Acquisition Act can be exercised only by the State Government or the Collector, as the case may be. There can, therefore, be no question of discrimination".
11. In the decision (Deva Raj v. U.P. State Electricity Board, Lucknow), a Division Bench of that High Court has held thus :--
"By virtue of the notification issued under Section 51 of the Electricity Act of 1910, the words "Telegraph authority" in Section 10 of . the Telegraph Act were substituted by the "State Electricity Board". In view of the notification read with Section 10 of the Telegraph Act, it is not possible to contend that the State Electricity Board, had no power to locate towers on the land owned by a person.
Neither Section 51 of the Electricity Act of 1910 nor Section 10 of the Telegraph Act provides any procedure under which compensation shall be determined. It is thus not necessary for the owner of the land to make any formal application for determination of compensation for loss, if any, suffered by him, on account of the action of the Electricity Board".
12. The Andhra Pradesh High Court had occasion to consider a similar question, and the same is reported in (1991) 2 Andh LT 7 (H. Bhadur Singh v. The Divisional Engineer, Andhra Pradesh State Electricity Board, Transmission Line Division). In the said decision, a learned Judge of that High Court has held thus:--
"By virtue of S. 42 of the Electricity Supply Act vesting in the Board the power possessed by the Telegraphic authorky, the Board for the limited purpose of erecting a transmission line is not obliged to acquire any land belonging to any person.
The grievance of the petitioner is that he will be put to much loss and damage due to erection of poles. If the petitioner is really aggrieved by the action of the respondents, he has got a right to claim compensation and this is not the proper forum for redressal of his grievance, if any. When the Board has got ample power to lay the lines for public purpose and in public interest without recourse to the provisions of the Land Acquisition Act, the petitioner has no right to question the same in writ proceedings under Article 226 of the Constitution. There are no merits warranting interference by the High Court. The petitioner is at liberty to claim compensation before the competent authority, if he so desires".
13. In this connection, it may also be useful to consider the scheme under Section 10 of the Indian Telegraph Act. It gives the telegraph authority power to place and maintain a telegraph line under, over, along or across and posts in or upon any immovable property. The proviso indicates that such power is to be exercised only for telegraph established or maintained by the Central Government or to be so established and maintained, that the Central Government Acquires only the Right of User, that in the case of Focal authority the exercise has to be with permission of that authority and that in the exercise of such power as little damage as possible is to be caused. These are in the nature of Restrictions in the exercise of the power and do not restrict the discretion .to determine the property over which the lines are to pass or posts are to be erected. The discretion is in the Telegraph Authority. (See (FB) -- Mammoo v. State of Kerala).
14. In view of the Notification of 1961, the words 'Telegraph Authority' in Section 10 of the Telegraph Act have been substituted by the words 'State Electricity Board'. In view of the substitution, the State Electricity Board gets power to locate towers on any land owned by any person.
In this connection, it is also better to take note of paragraph 18 of the Full Bench Decision of the Kerala High Court (supra). The said paragraph reads thus:--
"The power that can be conferred under Sec. 51 of the Electricity Act upon a public, officer, licensee or any other person is only for the purpose of placing electric supply lines. It can hardly be expected that this power will be utilised arbitrarily for causing loss or damage to owners or occupiers of property. There can, of course, be difference of opinion as to whether a line should be placed over a particular property or not. This must, in the nature of things, be a matter for the statutory authorities created under the Electricity Act to decide. It is too much to suppose that the officers, licensees and other persons empowered under S. 51. will act without any guidance or control from the statutory authorities such as the State Electricity Boards created under the Supply Act and without sanction or approval from the senior officers of the Board who have to decide on the policies regarding distribution and supply and the alignment of the lines to be drawn and such allied matters. The purposes for which the electric supply lines may be placed are clear from the section itself. In the case of licensees, normally, the licenses issued would indicate in what area and in what manner electricity should be distributed and supplied. These will afford sufficient guidelines for the exercise of the powers. One cannot expect the State Government to empower any public officer or any person who may have no idea how electric supply lines should be placed. And, though it is suggested that an Assistant Engineer is not a proper authority on whom the powers under the Telegraph Act may be conferred under S. 51 of the Electricity Act, we are not satisfied that this contention is sound. In the circumstances, the restrictions such as those that have been imposed can only be considered to be reasonable in the interest of the general public. One may have to suffer some detriment in the user of property to serve the common good and he cannot complain when full compensation is paid for the detriment. We are unable to accept the contention that the restrictions imposed on the user of the property are unreasonable. We negative this contention as well."
In the same decision, their Lordships further held thus (at pp. 51-52 of AIR) :-
".....The Electricity Act is a law to provide for the supply and use of electrical energy. Such supply and use of electrical energy has become a necessity. Electrical energy has become a commodity of ordinary and daily use in homes, factories and offices, in fact everywhere. The demand for this is growing day by day. The need for generating more and more electricity and the system to provide for its easy, quick and economic supply to every person requiring it has become indispensable for the needs of the community. Power has, therefore, to be taken for the purpose of facilitating generation and quick distribution and supply of electrical energy. And this is provided by the Electricity (Supply) Act, 1948, and also particularly by S. 51 of the Electricity Act read with S. 10 of the Telegraph Act."
15. A Division Bench of the Kerala High Court had occasion to consider the scope of Section 51 of the electricity Act in the case (Kerala State Electricity Board v. P. M. Maitheyan). There, the question was, whether mandatory injunction could be issued against the Kerala Electricity Board for installing a power over the property of a person from whom written consent was not obtained. Their Lordships, while considering Section 10 of the Telegraph Act read with Section 51 of the Electricity Act, came to the conclusion that the Electricity Board has been conferred with powers and they have got the power to lay electric lines over properties belonging to private persons and no consent of the owner of the land is required for that purpose. Following an earlier Full Bench decision of that High Court in Bharath Plywood and Timber Products Private Limited case (supra), their Lordships said that the officer of the Electricity Board has only lawfully drawn electric lines through the private property and that consent is not required. In paragraph 3 of the judgment (at page 542) (of Ker LT) : (at p. 96 of AIR), their Lordships have held thus :--
"......The subject has been discussed elaborately by a Full Bench of this court in Bharat Plywood & Timber Products Pvt. Ltd. v. Kerala State Electricity Board, (FB). There, it is laid down that the power conferred under Sec. 51 upon any public officer, licensee or any other person is for the purpose of placing electric supply lines, that under the Act if any individual has any objection to the lines being laid across his property, he has to raise objection to the laying of the lines and that the Electricity Authorities are then bound to approach the District Magistrate for obtaining permission to lay the lines. It is clear from the provisions in sub Ss. 1 and 2 of S. 16 of the Telegraph Act that the telegraph authority is bound, in case of resistance or obstruction by the owner of occupier, to resort to the procedure indicated in sub-S. 1 of S. 16, In other words, the authority has to get an order from the district Magistrate before exercising the power so conferred. In this case, the owner of the property has raised no resistance or objection when the lines were laid over this property. It was long after the lines were laid that the respondent purchased the property from the original owner. There is no justification in his now saying that the lines should not have been laid over the property as the law had permitted him the right to object to the laying of the line."
In the same volume, i.e. 1972 Ker LT 856 (Poulo kunj ouseph v. K. S. E. Board), the question that arose for consideration was, what is the consequence of a consent originally given but subsequently withdrawn. A learned Judge of the Kerala High Court held in that case thus:--
"A survey of the provisions contained in Ss. 18(c), 26 and 42 of the Electricity (supply) Act, 1948, S. 51 of the Indian Electricity Act, 1910, and S. 10 of the Indian Telegraph Act, 1885, would make it clear that the placing and carrying of electric lines over the properties even of private individulas by the Electricity Board and its officers in discharge of the statutory obligations laid on the Board under the provisions of the Acts in question are not in any way dependant upon the consent of the individuals concerned being so, the legal position appears to be plain that the withdrawal of consent by the third respondent by itself cannot automatically entail a dismantling or removal of the electric lines laid by the Board or its officers over the third respondent's property for the purpose of giving service connection to the petitioner. Counsel for respondents 1 and 2 attempted an argument that the provisions of the section would not be applicable to service lines such as what is involved in this writ petition. On the language of the section which refers to the placing of electric supply lines....... it is not possible to read this restriction in the section. Nor is it possible to find any such restriction in the remaining words or language used in the section."
16. In 1993 M. P. L. J. 691 (Madhya Pradesh Electricity Board, Jabalpur v. Nat-thoolal Joharmal), it was a reverse case. There was no approved scheme, nor was there any Authority conferred on the officers of the Board. In that connection, Gulab C. Gupta, J., as he then was, held that the civil court will have jurisdiction to issue mandatory injunction since there is no approved scheme, and there is no valid licence to draw the line. According to the learned Judge, their act will amount to trespass. But in that case, even the mandatory injunction granted by both the courts below was set aside by the learned Judge. Following the decision (FB) (supra), the learned Judge held thus;--
"......The Orissa State Electricity Board v. Pyari Mohan Patnaik, AIR 1978 Orissa 190, is the authority for the proposition that where transmission lines were placed on and over the private land not in accordance with sanctioned plan, the protection of Sectin 42 was not available to the electricity Board. Since this court has decided to look into the merits of the matter underterred by faulty pleadings of the appellants, the extent of power conferred by this section may be looked into. For this purpose, reference to part III of the Indian Telegraph Act, 1885 is necessary. Since 10 of the said Act provides that the telegraph authorities may from time to time, place and maintain telegraph lince under, over, along or across and posts in or upon any immovable property. Read in the context of the appellants, this provisions may be seem to be authorising the appellants to place and maintain an electric line on and over the immovable property of the respondent. This, however, cannot be read as conferring the absolute right of power in the appellants. In so far as the private property 19 concerned, clause (d) of this provision is attracted and requires the appellants to do as little damage as possible and also to pay full compensation for the damages. In Bharat Plywood and Timber Products Pvt. Ltd. v. Kerala State Electricity Board, , a Full Bench of Kerala High Court held that the powers conferred on the authority under Section 10 are conditional upon an order being passed under Section 16(1) of this Act. Section 16(1) provides that if the exercise of powers mentioned in Section 10 in respect of private property is resisted or obstructed, an order from District Magistrate will have to be obtained to permit the authority to exercise those powers. Combined reading of Sections 10 and 16 of the Telegraph Act would, therefore, indicate that the power of the appellant's Board to erect posts and place or maintain an electric line over the property of the respondent is not absolute Section 16 contemplates resistance or obstruction to exercise of these powers. In case exercise of powers by the authority under Section 10 is resisted or obstructed, an order of the District Magistrate would be necessary for the purpose. The legal position emerging out of combined reading of the two Acts and Sessions 10 and 16 of the Telegraph Act is that though the Board is entitled to put posts on and electric lines across the land of the respondent, the respondent may resist and even obstruct the exercise of this power.
In case the respondent so resists or obstructs, an order of the District Magistrate would be necessary to permit exercise of powers under, Section 10 of the Telegraph Act. The purpose of such a provision is to avoid arbitrariness in exercise of powers and thereby save unnecessary deprivation of property of a citizen. The District Magistrate had been given the discretion to permit the telegraph authority to exercise that power. Since the District Magistrate is required to work as a quasi-judicial authority, it is expected that he will permit exercise of powers only when he is fully satisfied that the same will serve the public purpose inherent in such an exercise; Subsection (2) of Section 16 further brings out the aforesaid purpose as it requires the owner of the property to give all facilities for exercise of powers pursuant to the order under subsection (1) and his refusal to do so makes him liable under Section 188, Indian Penal Code. It is, therefore, clear that once the owner of the property has resisted the exercise of the power under Section 10, the only method of exercising the power would be to obtain an order in this behalf from the District Magistrate under Section 16(1) of the Act and not otherwise."
17. In (1990) 2 Ker LT 841 (Gopala-krishnan v. District Collector), the question that arose for consideration was, when the distribution ends at a post, whether it is an electric supply line or service line alone, and whether the power under Section 51 of the Electricity Act can be invoked. It was held thus :--
"A reading of the definitions of electric supply-line and service line will clearly make out a marked difference between the above said two lines. Electric supply line is one for conveying, transmitting or distributing electrical energy. Service-line is an electric supply line intended to supply energy to a single consumer or a group of consumers from the same point of the distributing main. So, the service-line is to be drawn from the distributing main. The lines drawn with the help of electric posts are electric supply lines and connection taken from the post to the building are service lines. For giving electrical energy to third respondent line had to be drawn by fixing posts in the property belonging to the petitioner. The line so drawn can only be considered a supply-line. That line is an electric supply line. An electric supply line can have a dead end at the post which is fixed at the terminal. The fact that the distribution line ends at a post does not make the line anything other than electric supply line. Since the electric supply line has to be drawn for giving electrical energy to third respondent, S. 51 of the Electricity Act comes into operation and subsequently the power u/s. 16 of the Telegraph Act can be invoked."
18. A learned Judge of this court also had occasion to consider this question, and the same is reported in 1994 -- Writ LR 445 (M. Nithyanandham v. The Chairman, Tamil Nadu Electricity Board), where their Lordships followed the Full Bench decision of various other High Courts, and came to the conclusion that the owner of the property is entitled only to claim compensation as provided under Section 16 of the Telegraph Act for damage caused to the property. It was held in that case thus:--
"As the provisions stand it is hot obligatory on the part of the competent Authority to issue prior notice before exercising power under the provisions of the Act. No doubt, it will be proper and certainly desirable that the owner of occupier should be informed before acts are done on his property. It is conceivable that when the parties are so informed, the exact location and the alignment of the line can be settled without resistance or obstruction by mutual understanding and discussion. However that be, considering the provisions in the Telegraphs Act and the provisions of the Indian Electricity Act, it is not necessary that there should be prior notice. A Full Bench of the Kerala High Court, (FB) has also taken a similar view. Provisions of S, 42 are very clear, and at the end of the 20th century, it is no longer open to anybody to contend that high tension towers cannot be put up.
S. 42 of the Electricity (Supply) Act, 1948, gives authority for placing the poles or the towers in a private land and clause (d) referred to above provides for payment of compensation. S. 16(1) provides for the Board approaching the District Magistrate in case of resistance by the owner S. 16(3) provides for the mode for fixing the compensation in case of dispute regarding the sufficiency of the compensation.
In the light of the non-obstante clause in S. 42, excluding in categoric terms the applicability of Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910, in my considered opinion, it is not open to the petitioners to rely on S. 12 of the Indian Electricity Act, 1910.
As rightly pointed out in the Division Bench of the Allahabad High Court in , the only right that persons like the petitioners are left with is to obtain compensation from the authorities concerned.
The counsel for the Electricity Board has also fairly conceded at the time of hearing that the petitioners have a right to obtain compensation for the loss they have suffered. Therefore, the Electricity Board is directed that on receipt of application from the petitioners for payment of compensation, it should fix the amount of compensation payable to them on the basis of the market value prevalent on the date of erection of poles. A duty is cast on the Electricity Board to decide the compensation payable to the petitioners for the loss suffered by them. Therefore, the Electricity Board has to decide the compensation amount payable to the petitioners within three months from the date of receipt of application from them.
Now that the Electricity Board is given permission to take the high power tension line through the lands of the petitioners in the interest of public, the Madras Metropolitan Development Authority and other Municipal and public authorities are directed to consider the applications, if any, filed by the petitioners for planning permission, etc., and sanction the same as per Rules except on the ground of passing of the high tension power line."
19. From the above settled position of law, it is clear that when the Electricity Board exercises power under Section 51 of the Electricity Act read with Section 10 of the Telegraphs Act, they are not acquiring any land. They are only making use of the land for the purpose of laying electric lines for which full compensation is given for the damage caused. It is also clear therefrom that no notice is required to the owner before laying the poles or constructing any tower, nor any consent is required from them.
20. In this case, the iact that there was a notification in 1961 is not a matter in dispute. Subsequently proceedings have been issued by the first respondent on 18-12-1993 whereby the scheme was approved, and it was also declared that the Board will exercise power of Telegraph Authority under Section 45 of the Electricity Supply Act, and, therefore, the Electricity Board shall not be bound by the provisions of Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910. In view of the notification and also the approved Scheme, no argument can be put forward by the petitioners that the officers of the Electricity Board are not entitled to enter the property or to draw the electric line. Once the power under the Telegraphs Act is given to the public officers of the Board, they are also entitled to dig pits and also instal towers over the property. The question of consent from the petitioners does not arise for consideration, nor is it required under law.
21. In this connection, we may-also note that the respondents-Electricity Board will make use of only 9 sq. ft. of land out of the entire 0.39.5 hectares of land, and the same is negligible. According to the respondents, the user of the land has not in any way affected the petitioners.
22. The respondents have also a contention which merits consideration. It is their case that at the time of survey, there was no objection from the said of the petitioners, and even at the time when preparations were made for laying the foundation for installing the tower, there was no objection raised by the petitioners. If any such consent is required, silence amounts to Consent. A subsequent representation or filing of objection cannot affect the powers of respondents in drawing the lines through the property.
23. It is the case of the petitioners that the electric line can be drawn through the poram-boke property situated on the eastern side of the property in question. The same is answered by the respondents by stating that this is the only feasible land (i.e., the subject land) through which electric line could be drawn, and, at the time of survey, the entire property was a vacant dry land. As has been held in (FB) (supra), the discretion as to through which property the line has to bedrawn vests with the Authority, and the court cannot interfere with such discretion, if the same had been exercised properly. No argument was put forward that the discretion exercised by the respondents was improper or dishonest. I do not find any merit in the writ pertition.
24. In the result, the writ petition is dismissed, however, without any order as to costs.
25. Petition dismissed.