Allahabad High Court
Mohd. Sharif Saifi vs State Of U.P. And Others on 5 April, 2013
Bench: Sunil Ambwani, Bharat Bhushan
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment reserved on 06.03.2013 Judgment delivered on 05.04.2013 Civil Misc. Writ Petition No.4227 of 2010 Mohd. Sharif Saifi v. State of U.P. & Ors. Hon. Sunil Ambwani, J.
Hon. Bharat Bhushan, J.
1. The petitioner is a bhumidhar with transferable rights in Khata No.15 area 0.1170 hect. and Khata No.19 area 0.5590 hect. situated in Village Fatehullahganj, Pargana Thakurdwara, Tehsil Thakurdwara, Distt. Moradabad. By this writ petition he has prayed for directions to the respondents to remove the high tension wires, which are passing through his bhumidhari land in Gata no.19 and to decide his application dated 27.10.2009 for removing the wires. The writ petition was amended adding facts, grounds to support the prayers for a direction to respondents to pay Rs.68,24,190/- as compensation for illegal drawing high tension wires through petitioner's land since 1970, after deducting amount of Rs.5,75,810/- of the value of the amount for shifting high tension wires as calculated by the respondents vide their letter dated 30.1.2012.
2. The petitioner filed this writ petition and has argued in person. Learned Standing Counsel appears for respondent no.1. Shri Pankaj Kumar Shukla appears for Chairman/ Managing Director, U.P. Power Corporation, Lucknow and Western Electricity Distribution Corporation, Meerut and its engineers arrayed as respondent nos.3 to 6.
3. The petitioner claims to have transferable rights in the agricultural land detailed as above. It is alleged that the respondent nos.2 to 6 without obtaining the consent of the petitioner have drawn two electricity polls over his bhumidhari land in Gata No.19 and installed two high tension wires of 11000 volts. There is big hall measuring 40'x60' for establishing rice mill but on account of high tension wires the petitioner could not secure license. he applied for to the Zila Panchayat, Moradabad on 28.2.2009 for holding weekly market on his Gata No.19. The Upper Mukhya Adhikari, Zila Panchayat, Moradabad by his letter dated 22.8.2009 directed the petitioner to remove the high tension wires. Thereafter, the petitioner requested the respondent nos.2 to 6 several times but they have not taken any steps to remove high tension wires. It is alleged that on account of high tension wires drawn over the petitioner's land he is unable to use the land for any purpose including charitable purpose and for which he is sufferring recurring losses of Rs.1 lac per month.
4. The petitioner filed an amendment application, which was allowed on 29.10.2012. By this application he has introduced paragraph 15A to 15J and Ground No.E to K alleging that he applied for grant of license from Zila Parishad, Moradabad to run a market on his land, which was rejected on 21.10.2009. He filed Writ Petition No.15360 of 2011, Mohd. Sharif Saifi v. State of U.P. & Ors., which was disposed of on 16.3.2011 directing the respondents to decide his application after giving him opportunity of hearing. He, thereafter, filed Civil Misc. Contempt Petition No.2994 of 2011 complaining that the District Magistrate has not done anything in the matter. The contempt petition was disposed of on 19.8.2011 in pursuance to which the petitioner again applied and on which the Superintending Engineer, Western Electricity Distribution Corporation, Moradabad has granted permission to remove high tension wires over the land of the petitioner on his depositing the cost of diversion by realignment of the high tension wires calculated by the Executive Engineer, Electricity Distribution Division-I, Moradabad.
5. It is stated in para 15E that the Executive Engineer, Electricity Distribution Division-1, Moradabad by his letter dated 30.1.2012 directed the petitioner to deposit 'Rs.5,75,810/- for shifting high tension wire. The petitioner is entitled to compensation for the loss sufferred by him on account of drawing high tension wire over his land from which the amount of Rs.5,75,810/- may be deducted. He has prayed for compensation and to deduct the amount for shifting the wires from such compensation and thereafter to pay to him Rs.68,24,190/- as balance of compensation for loss of income on account of drawing high tension wires from over his land.
6. In the counter affidavit of Shri Khan Chandra, Executive Engineer, Electricity Distribution Division-2nd, Moradabad filed on 31.3.2010 it is stated that Section 12 of the Indian Electricity Act, 1910 authorises the respondents to lay down electricity lines for the benefit of public at large. The 11 KV high tension line in question was constructed about 40 years ago, in the interest of general public at large to improve and to provide electricity supply in Hapur-dwar area. The petitioner has deliberately not given the year in which the electricity lines were drawn over the land, which belongs to him. He never objected at any time nor claimed any compensation. In para 12 of the counter affidavit it is stated that the petitioner never came to the office of the answering respondents. The Zila Panchayat has not only denied permission to hold market on the basis of 11 KV high tension lines, it has also referred to the objections of the neighbours, other land owners, and apprehension of public peace and encroachments. The application for license has not been rejected by Zila Panchayat only on the ground that 11 KV high tension wire were constructed over his land.
7. Mohd. Saifi arguing in person submits that high tension wires cannot be drawn over the land by any person without taking his expressed consent. If any objection is raised for digging up land to install poles and drawing electricity lines, which may affect beneficial enjoyment of the land, the respondents in view of Prem Pal v. State of U.P., 2011 ADJ 3 703, and Jagir Lal v. State of U.P., 2012 ADJ 6 784 must compensate the persons, who suffer the loss of the beneficial utilization of the land. It has been held in these judgments that where there is resistance or obstruction in exercise of powers under Section 10, the authority will have to approach the District Magistrate for an order under sub-section (1) of Section 16 of the Telegraph Act and that the exercise of power under Section 10 is permissible, where the District Magistrate deems it fit to pass an order that authority may be permitted to do so. He submits that this Court has held that in such case the District Magistrate must in case he gives permission worked out the compensation and if the compensation is inadequate a person can apply to the District Judge under sub-section (3) of Section 16 of the Telegraph Act for enhancement of the compensation.
8. Shri Saifi submits that in view of principles of law culled out in Section 164 of the Electricity Act read with Electricity Rules, Section 10, 16, 16 (1) of the Telegraph Act, he is entitled to compensation at the rates for which he has represented and has made prayers in the writ petition. He further submits that the respondents have now agreed to change the alignment and to shift the line for which the amount worked out can be deducted from the compensation to be paid to him.
9. Shri Pankaj Kumar Shukla on the other hand submits that the petitioner never raised objections at the time of installation of the poles and the drawing of the wires over his land. He recently started objecting to the high tension wires passing over his land, on the pretext that Zila Panchayat has refused grant of license on the ground of overhead electric wires. In view of the judgment in Writ-C No.15360 of 2011 dated 16.3.2011, to decide his representation, and the order in Contempt Application (Civil) No.2994 of 2011 in which the matter was adjourned to allow the respondent no.6 to decide the representation, the realignment of electric lines has been worked out at the cost of Rs.5,75,810/-. If the petitioner deposits the amount, the realignment may be carried out. There is, however, no question of demand of compensation as the petitioner had acquiesced to the electricity lines being drawn over his land for last 40 years. There is no question of payment of any compensation or adjustment of the cost of realignment from such compensation.
10. In Prem Pal v. State of U.P. (Supra) on the objections raised by the petitioner, in that case, who was carrying on agricultural work, to the officers and employees of the Power Grid Corporation of India entering on his land for establishing high tension electric wires, the District Magistrate, Bulandshahar had determined compensation. This Court considered the provisions of Section 164 of the Electricity Act, 2003, and Rule 3, 13 and 15 of the Works of Licensees Rules, 2006 and held that under Section 164 of the Electricity Act, appropriate government may confer any of the powers, which the telegraph authority possesses under the Telegraph Act on any public officer, agency or any other person engaged in the business of supplying electricity under the Electricity Act vide Notification dated 24th December, 2003, these powers were conferred on Power Grid Corporation. The Notification conferred powers on the Power Grid Corporation, of the Telegraph Authority under Part-III of the Telegraph Act, which includes powers to lay out electrical wires or set up power machineries in any immovable property, for the sake of maintenance or to be let out or to be maintained for the sake of telephonic or wire related communication required for proper coordination in power transmission and works. Relying on Section 10 of the Telegraph Act, the Court held that in case of any objection the authority under Section 10 of the Telegraph Act bound to pay full compensation to all persons interested for any damage sustained by them by reason of using the land or putting up any structure on the land thereby causing waste or damage. If a person is dissatisfied with the compensation, such person may approach the District Judge within whose jurisdiction the property is situate, who will then decide the compensation. The Court also held that there is no conflict between exercise of the powers by the appropriate Commission under the licensees rules and exercise of the powers by the Power Grid Corporation under Para III of the Telegraph Act. Under the Electricity Act, therefore, there appears to be two authorities, who can decide about inadequacy of the compensation. This does not result into any conflict as both are Central Acts. The Court, thereafter, held as follows:-
"13. A licensee under Section 2 (39) of the Electricity Act, is a person who has been granted a licence under Section 14 of the said Act. Section 14 confers power on the Appropriate Commission to grant a licence to any person to transmit electricity as a transmission licensee, or to distribute electricity as a distribution licensee, or to undertake trading in electricity as an electricity trader, in any area specified in the licence. The expression 'licensee', therefore, is a wide term, which can include various kinds of licensees. Normally, the compensation will have to be determined in terms of the Licensees Rules. In those cases where, under Section 164 of the Electricity Act, the powers of Part III of the Telegraph Act have been conferred on a licensee, then in that class of cases, the compensation determined would not be under the Electricity Act or the Rules framed thereunder but under the provisions of the Telegraph Act. A construction of the provisions in this manner would lead to harmonious construction and will not result in conflict of exercise of jurisdiction under the Electricity Act on one hand and the Telegraph Act on the other. Under Section 10 of the Telegraph Act, the compensation is to be determined not by the District Magistrate or the Commissioner of Police but by the licensee itself, in the instant case, the Power Grid Corporation. The Power Grid Corporation, in the instant case, has determined the compensation. The petitioner was given a cheque which he had accepted on 15.01.2011. In our opinion, therefore, the remedy to the petitioner, if he is aggrieved by the insufficiency or inadequacy of the compensation, will be to apply before the District Judge within whose jurisdiction the land is situated, for enhancement of compensation or the like, which he is entitled to.
14. Our attention was invited to a judgment of this Court in Deva Raj Vs. U.P. State Electricity Board, Lucknow & Ors., AIR 1977 Alld. 452, wherein it was held that neither the Indian Electricity Act, 1910 nor Section 10 of the Telegraph Act provided any procedure under which compensation which would be determined and, thus, it was not necessary for the owner of the land to make any formal application for determination of compensation for the loss, if any, suffered by him on account of the action of the Electricity Board. This will not assist us considering the issues.
15. That, there is a power to locate a tower over the land possessed by private individuals and such individual would be entitled for the compensation for the damage sustained by him, was upheld by a Division Bench of this Court in Janardan Pandey Vs. State of U.P. & Ors., Civil Misc. Writ Petition No. 41411 of 2007 decided on 5th September, 2007.
16. Considering the above discussion, this petition is disposed of, by directing the petitioner to apply, if not already applied, to the District Judge having jurisdiction for enhancement of compensation, and if such an application is made, the District Judge having jurisdiction to proceed to determine the compensation in accordance with law and dispose of the matter as expeditiously as possible."
11. In Jagir Lal v. State of U.P. this court took the benefit of the principles of law determined in the Full Bench judgment of Kerala High Court in AIR 1972 Kerala 47 (Bharat Plywood & Timber Products Private Ltd. v. Kerala State Electricity Board, Trivandrum & Ors.); AIR 1989 Delhi 51 (Sh. Surat Singh v. Municipal Corporation of Delhi) and AIR 2007 Karnataka 37 (Thirthesh A.S. v. Under Secretary to the Government of Karnataka, Deptt. of Power Corporation & Ors.) and the judgment in Prem Pal v. State of U.P. (Supra). The Court also had the benefit of considering the Division Bench judgment of this Court in AIR 1977 Alld. 452 (Dev Raj v. U.P. State Electricity Board); 1999 (3) AWC 2479 (Mahaveer & Ors. v. State of U.P. & Ors.) and the judgment in Writ Petition No.14712 of 2007 (Brij Raj v. U.P. Power Corporation & Ors. decided on 19.3.2007, and held as follows:-
"Sri Sobhit Dubey learned counsel appearing for the respondents 2,3 and 4 refuting the submissions of the learned counsel for the petitioners, contends that there is no requirement of obtaining any prior permission from the petitioners for laying down the transmission line. The plan of transmission line which is being laid under the supervision of Executive Engineer, Electricity Transmission Division, Shahjahanpur has been duly approved and in plot no.608, there is a pit due to earth being dug out for purpose of brick kiln and no tower is placed in the petitioners land. It is stated that no objection was ever raised by the petitioners with respect to the laying down of the line and it was only when notice was issued on 5.7.11 by the Asstt.Director, Electrical Safety, a reply was sent. The power being exercised by the U.P.Power Transmission Corporation Ltd. under Section 164 of the Electricity Act, 2003, no construction was thereon on the plot in question and it is only after the line was drawn, the rooms were sought to be constructed by the petitioners. Reliance has been placed by the learned counsel on the judgments of Deoraj ( supra); Division Bench judgement in Ghan Shyam Singh Rana Vs. Executive Engineer, U.P.Power Corporation Ltd & others; Division Bench judgement in writ petition no.18972 of 2007, Balveer Singh and others Vs. State of U.P.and others, decided on 16.4.07; judgement of Calcutta High Court in and on judgement of Division Bench of this Court in writ petition no.11771 of 2011, Dharam Kishore Lal Vs State of U.P. & others, decided on 3.3.11 and the judgment of the Calcutta High Court in Ashis Kumar Ghose & others Vs. State Calcutta Electricity Supply Corporation Ltd & another, AIR 204, Calcutta 130.
We have considered the submissions of the learned counsel for the parties and have perused the record.
The principal contention of the petitioners' counsel is that no consent having been given by the petitioners for laying the transmission line, it was obligatory for the respondents to have obtained permission from the District Magistrate for the same. Learned counsel for the petitioners contended that since the respondents are exercising the power under Sections 10 and 16 of the Telegraph Act, 1885, which provision itself oblige the respondents to obtain the consent of the District Magistrate and they having not obtained the same, their action is contrary to the statutory provision. The provisions of Indian Telegraph Act, 1885, which are relevant in the present case are Sections 10 (d) and 16, which are quoted below:-
"10. Power for telegraph authority to place and maintain telegraph lines and posts.-----
(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.
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 9 (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.
(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 amont 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 head, 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."
The provision which has been relied upon by the petitioners and which fell for consideration is Section 16 sub-section (1) referred to above. Section 16 sub-section (1) provides that if the exercise of the powers mentioned in section 10 in respect of property referred to in clause (d) is resisted or obstructed, the District Magistrate may, in his discretion, order that telegraph authority shall be permitted to exercise them. Submission of the petitioners is that since petitioners have resisted the laying of the transmission line, it was obligatory for the respondents to have obtained permission from the District Magistrate.
Section 16 sub-section (1) fell for consideration before the Full Bench of Kerala in Bharat Ply Wood and Timber Products Pvt. Ltd. (supra). Paragraph 23 which is relevant is quoted as follows:-
"It is clear from the wording of Section 16 and particularly from the expression "the District Magistrate may, in his discretion", that an order will not be forthcoming automatically. A District Magistrate may in this discretion in a given case refuse or decline to pass an order that the telegraph authority shall be permitted to exercise the powers. The wording is significant. The District Magistrate does not grant permission to the authority. But he orders that the authority "shall be permitted." The discretion conferred by the section on the District Magistrate is certainly a judicial discretion, and, in cases where the District Magistrate refuses to pass an order that the telegraph authority shall be permitted to exercise the powers mentioned in Section 10 it is inconceivable that the telegraph authority may notwithstanding such refusal, continue to exercise such powers. The wording of the section is thus itself indicative of the fact that in cases of resistance or obstruction the District Magistrate will have to decide whether the authority should be permitted or not to exercise the powers under Section 16 of the Telegraph Act. This necessarily means that the telegraph authority cannot override or ignore the resistance or obstruction and continue to exercise the powers under Section 10 notwithstanding such resistance or obstruction. It follows that, when an owner or occupier resists or obstructs the exercise of the power under Section 10, the telegraph authority will have to approach the District Magistrate for an order under Sub-section (1) of Section 16 and can exercise the power under Section 10 only in cases where the District Magistrate deems it fit to pass an order that he shall be permitted to do so. The power conferred by Section 10 is thus a conditional power; conditional on an order being passed under Section 16 (1) by the District Magistrate that the authority may be permitted, in case of resistance or obstruction, to exercise the power. This is so not only in regard to a telegraph authority but to the public officer or any other person authorised under the Electricity Act.
We are fortified in this view by what is provided by Sub-section (2) of Section 16. If the telegraph authority has the power, notwithstanding the resistance or obstruction, to exercise the powers under Section 10 the resistance or obstruction by the owner or occupier, we conceive, would be an offence under Section 186 of the Indian Penal Code. That section makes voluntary obstruction to any public servant in the discharge of his public functions an offence, and such an offence is punishable with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with, both.
Sub-section (2) of Section 16 provides that if after the making of an order under Sub-section (1), any person resists the exercise of the powers under Section 10 or 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. Section 188 of the Indian Penal Code makes disobedience to an order duly promulgated by a public servant an offence. This offence, as long as it does not cause or tend to cause danger to human life, health or safety, or cause or tend to cause a riot or affray, is punishable with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both. We notice that Sub-section (2) of Section 16 has a positive as well as a negative aspect; the former being the duty on the part of the person having control over the property to give all facilities for the exercise of the power under Section 10 and the latter not to resist the exercise of such power. Nevertheless, it is clear that only resistance after an order has been passed under Sub-section (1) of Section 16 that is deemed to be an offence under Section 188 of the Indian Penal Code. This necessarily implies that any resistance to the telegraph authority in the exercise of powers under Section 10 before an order under Section 16 (1) has been passed by the District Magistrate, is not an offence. The provision in Sub-section (2) of Section 16 would become meaningless and absurd if even the initial resistance or obstruction is already an offence under Section 186 of the Indian Penal Code and punishable with a sentence more stringent than that which can be imposed under Section 188. We have, therefore, necessarily to understand the statute as enabling an owner or occupier or a person having control over the property over which a line is sought to be placed as having the right to resist or obstruct. When the telegraph authority is so resisted or obstructed, the District Magistrate can be approached. If he is approached, the District Magistrate would decide whether the authority should be permitted to exercise the powers. When the District Magistrate decides that he should be so permitted resistance thereafter is made an offence. And there is an obligation cast upon the owner or occupier to render all facilities for the exercise of that power. The sections (Sub-sections (1) and (2) of Section 16) can only be understood in this manner. In short Sections 10 and 16 have to be read together, and when there is resistance or obstruction, the power under Section 10 can be exercised only when the District Magistrate passes an order under Section 16(1) that he shall be permitted to exercise them."
To the same effect is the judgement of the Division Bench of Karnataka High Court in Thirthesh A.S.(supra), following was laid down in paragraph 3:-
"Having heard learned counsel for the appellant, the learned Government Advocate, who accepted notice for respondents 1 and 2 and Sri N.K.Gupta, learned counsel for respondents 3 and 4, we are of the view that in the light of the Full Bench decision of the Kerala High Court in Bharat Plywood and Timber Products Private Ltd. vs.Kerala State Electricity Board, Trivandrum and others, (AIR 1972 Kerala 47) and Mammoo V.State of Kerala (AIR 1980 Ker 18), the representations Annexures 'G' & 'H' are liable to be treated as resistance or obstruction by the appellant for the purpose of Section 16((1) of the Indian Telegraph Act,1885. Therefore,respondents 3 and 4 were bound to refer the matter to the District Magistrate under Section 16(1) of the said Act instead of waiting for the appellant to physically obstruct the fixing of the transmission lines and to commit an offence under S. 186 of the IPC. We are also of the view that this Court's decisions in Nagaraju v. Mahalingappa (ILR 1990 Kar 1515) and A.T.Thippeswamy v. Karnataka Electricity Board (ILR 1990 Kar 1038) do not stand in the way of treating the appellant's representation as his resistance or obstruction for the purpose of Section 16 of the Indian Telegraph Act. Before passing an order under Section 16(1), the District Magistrate has necessarily to issue notice to all persons interested and give them an opportunity to state their objections, if any. Without giving such an opportunity the District Magistrate will not have any material, at any rate, adequate material to decide whether he should pass an order that the authorities shall be permitted to draw the line."
In Prem Pal's case (supra), the Division Bench had also an occasion to consider Section 16 and the Licensee Rules, 2006. Paragraph 8 of the judgement is quoted below:-
"A conjoint reading of these Rules would,therefore, show that a licensee can enter upon a land including private land for carrying out the work as a licensee. If the licensee enters upon the land and the owner or occupier raises objections, the licensee must obtain permission, in writing, from the District Magistrate or the Commissioner of Police or any other officer authorised by the State Government. The District Magistrate or the Commissioner of Police or the other officer so authorised, then has to fix, after considering the representations, the amount of compensation or annual rent, or both, which has to be paid to the owner or occupier. Rule 13 of the Licensees Rules, provides that if there be a default by a licensee, then he is bound to make full compensation for any loss or damage incurred by reason thereof to the person affected, as may be determined by the District Magistrate or by any other officer as may be authorised by the State Government, and if there be a dispute or difference in respect of compensation determined under Rule 13(1), the dispute shall be decided by the Commission in terms of Rule 15 of said Rules. This seems to be a scheme of things under the Licensees Rules."
The judgment of the Division Bench in Deoraj's case ( supra) relied upon by the counsel for the respondents, was also a case where Section 10(d) of the Indian Telegraph Act fell for consideration. The argument that U.P.State Electricity Board had no jurisdiction to lay tower in the land of tenure holder was negatived. It was held that owner had right to obtain compensation. It is useful to quote the following observations from paragraph 8 of the judgement:-
"Learned counsel for the State Electricity Board has, however, contended that Section 12 of the 1910 Act read with Section 26 of the 1948 Act had no application to the present case because by reason of the conferment of powers by the State Government on the State Electricity Board under Section 51 of the 1910 Act, the Stale Electricity Board acquired the right to construct the tower at the spot chosen by it even though the appellant may not consent thereto. It was contended further that by reason of Section 51 of the 1910 Act and the no notification issued under Section 28 of the 1948 Act, Section 10 of the Telegraph Act was clearly attracted and the appellant was entitled In obtain compensation for damage caused to him or loss suffered by him be-cause of the construction, of the lower upon his land. There is in our opinion, force in this contention. Section 51 of the 1910 Act is in the following terms:--
"51. Exercise in certain cases of powers of telegraph authority-- Not withstanding anything in Sections 12 to 16 (both inclusive) and Sections 18 and 19 the State Government may, by order in writing, for the placing of electric supply lines, 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.' There is on record the notification dated 31st May, 1961 issued by the Stale Government which runs as follows :--
"In exercise of the powers conferred by Section 51 of the Indian Electricity Act, 1910 (Act No. 9 of 1910), the Governor of Uttar Pradesh is pleased to confer, subject to the provisions of the Indian Telegraph Act, 1885, upon the Uttar Pradesh Slate Electricity Board, for the placing of electric supply line, appliances and apparatus for the transmission of energy the power which the telegraph authority possesses under the Indian Telegraph Act, 1885, with respect to the placing of telegraph lines and posts for the purposes of telegraph established or maintained by it."
The telegraph authorities possess powers with respect to placing of telegraph lines and posts for the purposes of telegraph established or maintained by it under Section 10 of the Telegraph Act. According to Section 10 of the Telegraph Act, "the telegraph authority may, from lime to time, place and maintain a telegraph line under, over, along or across, and posts in or upon, any immoveable property; provided that-
(a) .....
(b) .....
(c) .....
(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 properly other than that referred to in Clause (c), shell pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers."
By virtue of the notification issued under Section 51 of the 1910 Act, the words "Telegraph authority" in Section 10 of the Telegraph Act will be substituted by the "State Electricity Board". In view of the notification under Section 51 of the Act of 1910 read with Section 10 of the Telegraph Act, it is thus not possible to contend that the State Electricity Board had no power to locate towers on the appellant's land. The only rights he has left now is to obtain compensation under the notification referred to above read with Section 10(d) of the Telegraph Act. Neither Section 51 of the 1910 Act nor Section 10 of the Telegraph Act provided any procedure under which compensation shall be determined. It is thus not necessary for the appellant to have made any formal application for determination of compensation for loss, if any, suffered by him on account of the action of the respondents. Learned counsel for the State Electricity Board concedes, and in fact it has also been stated in one of the affidavits filed on behalf of one of the respondents, that the appellant has a right to obtain compensation for loss, if any, he has suffered. There is a duly, in our opinion, cast on the State Electricity Board to decide the compensation payable to the appellant for the loss suffered by him. We consequently have no reason to suspect that the respondents will not invite the appellant to put forward a claim for compensation for the loss which might have been suffered by him and to determine the compensation payable within a reasonable time."
The Division Bench judgement in Ghanshyam Singh Rana ( supra) was also a case where it was held that land owners were entitled for compensation and following was laid down in paragraph 5.
"A notification has already been issued on 31.5.1985 under this section applying the provisions of Indian Telegraph Act, 1885( the Telegraph Act). A Division Bench of this Court In AIR 1977 All 452, Dev Raj V, U.P.State Electricity Board, Lucknow and others, after considering these provisions held that the only right with a person is to claim compensation and he cannot object to the laying down of electricity poles. This decision has also been followed by a decision in E.Venkatesan and others v. Chairman, Tamil Nadu Electricity Bod, Madras and others, AIR 1997 Mad.64. The old Act has been repealed by the Indian Electricity Act, 2003 ( the new Act). It has similar provisions. It also provides that the notification already made shall be deemed to have been made under corresponding provisions of the New Act. In view of this, the petitioners cannot object to the laying down of the poles but can only claim compensation."
The judgments in Brij Raj and Balveer Singh ( Supra) are also to the same effect.
From the aforesaid judgments it is clear that all the Division Bench judgments of this Court have laid down that land owners on whose land electric line is drawn, is entitled to claim compensation. There is no specific discussion of Section 16 sub-section (1) nor any such proposition has been laid down that even though laying down of line is obstructed, no permission of the District Magistrate is required. Section 16 sub-section (1) provides for consequences on exercise of power under Section 10. The provision contemplates if the exercise of power, i.e. the power of telegraph authority to place a telegraph line and post is resisted or obstructed, the District Magistrate in his discretion order that telegraph authority shall be permitted to exercise them. The powers conferred to the District Magistrate to exercise discretion in cases where laying of line is obstructed, is for a purpose and object. The object is that whenever a dispute arises between the telegraph authority and owner of the property on whose land line is to be laid down, the District Magistrate is to consider the facts of a particular case and then in his discretion, decide as to whether laying of line should be permitted or not. In the above, it is implicit that in a given case the District Magistrate may permit laying of the line or may refused to permit the same. The power has been conferred with an object that the District authority may adjudicate and decide any such issue raised on such obstruction or resistance.
From the provisions of Sections 10 and 16 of the Telegraph Act and the provisions of U.P.Electricity Act,2003, it is clear that there is no requirement of obtaining any permission from the owner of the property for laying down the transmission line. The only protection which has been given to the owner is one as contemplated under Section 16 sub-section (1) where the District Magistrate has been conferred with the power to take a decision in his discretion as to whether telegraph line be permitted to lay down or not. The District Magistrate can exercise that power either suo moto or on a request made by either the telegraph authority or by the owner of the land. There is no dispute that whenever telegraph line is laid down on a property of a person, he is entitled to claim compensation from the authority and in the event he is not satisfied with the amount of compensation, he is entitled to make an application to the District Judge as per Section 16 (3) of the Telegraph Act.
Now coming to the facts of the present case, there is no material on the record to come to a conclusion that the petitioners had at any point of time prior to June, 2011 raised any objection in laying down of the transmission line. They submitted a written reply only on 8.7.11 when the notice was given to them. From the photographs which have been brought on record by the petitioners, as Annexure 3 to the writ petition, it is clear that poles have already been erected and lines have been drawn. It has been stated by learned counsel for the parties that lines have not yet been energised. Thus in the facts of the present case, lines have already been laid. However when Section 16 sub-section (1) provides for a remedy to an aggrieved person, it is open to an owner of land from whose property a line is being drawn, to represent the matter before the District Magistrate. In the present case, as stated above, the line has not yet been energised. It is just and proper that the petitioners be given liberty to represent the matter before the District Magistrate.
In view of the foregoing discussions and in view of ratio laid down in the judgments of this court as noted above,as well as the judgments of Karnataka High Court and in Kerla High Court, following conclusions are irresistible.
1. There is no requirement of obtaining any consent of owner before laying a transmission line by an authority exercising power under Section 164 of the Electricity Act,2003.
2. When owner of the property from where the transmission line is to be drawn obstructs or resists laying down of a line, it is open both for the owner as well as to the authority to approach the District Magistrate for appropriate orders and the District Magistrate in his discretion may permit the laying of the line or refuse such permission
3. The owner from whose line the electric line is drawn, is entitled for compensation from the authority and in the event he is dissatisfied with the amount of compensation, his remedy is to make an application before the District Judge under Section 16 sub-section (3)."
12. The scheme of the Electricity Act, 2003, Telegraph Act and the Works of Licensees Rules, 2006 clearly provide for the authority, for which notification was issued on 31st May, 1961 by the State Government conferring powers upon the U.P. State Electricity Board, for placing electric supply line plants and apparatus for transmission of power, which the telegraph authority possesses under the Telegraph Act, 1885. If a person objects to establishing the polls and drawing electricity lines over his land, the authority has to apply for permission of the District Magistrate and in such case the District Magistrate has to work out a fair compensation to be paid to the person within a reasonable time. Such person has a right to claim higher compensation, if he is not satisfied with the amount worked out and offered to him by the District Magistrate. The District Judge in such case has been authorized to work out compensation under sub-section (3) of Section 16 of the Telegraph Act.
13. In the present case though there is a vague averment in the writ petition that the poles were established and high tension wires were drawn over the petitioner's land without his consent, the year in which the poles were erected and electricity lines were drawn has not been given nor there is any proof of any objection raised by the petitioner for erection of the poles and drawing of electricity lines prior to 27.10.2009, when he made objections purportedly on the ground that the permission has been refused to him, by the Zila Panchayat, Moradabad to hold market on the land on the ground of overhead electricity wires. There is no averment nor any due material to show that the petitioner had raised any objection prior to the year 2009. Further there is no denial to the averments made in the counter affidavit that the electricity lines were drawn sometimes in the year 1970. The petitioner thus acquiesced to the erection of the electricity poles and drawing of electricity wires over his land for which he did not make any objection or made any effective steps for claiming any compensation for 40 long years and which may have required the concerned authority at the relevant time to seek permission of the District Magistrate. The petitioner did not take any steps or legal action to lodge his protest or claimed compensation. He is now estopped from raising any dispute and to even ask the Court to make enquiries as to whether he had objected or that the District Magistrate had granted permission on his objection for drawing electricity lines over his bhumidhari land.
14. So far as the amended prayers of providing compensation is concerned, we find that in pursuance to the directions issued by this Court in Writ Petition No.15360 of 2011 (Mohd. Sharif Saifi v. State of U.P. & Ors.) decided on 16.3.2011 for considering his representation and the observations made on 19.8.2011 in Contempt Application (Civil) No.2994 of 2011 (Mohd. Sharif Saifi v. Raj Shekhar, District Magistrate), the respondents have prepared a report for realignment of the electricity lines, to deviate them from the land of the petitioner and for which a cost estimate of Rs.5,75,810/- has been prepared. The Executive Engineer, Electricity Distribution Division No.2, Moradabad intimated the petitioner on 30.1.2012, to deposit the amount so that work for shifting the lines may be undertaken.
15. We do not find any merit in the submission of the petitioner that he is entitled to any compensation for the electricity lines, which have been drawn over his land and were energised almost 40 years ago providing supply of electricity to the area. The petitioner did not raise any objections prior to 2009 and has acquiesced to drawing of electricity lines over his land.
16. Before parting with the case we may observe that the land in Gata No.19 is recorded as agricultural land. The petitioner has not alleged that on account of overhead wires for transmitting electricity he is unable to do agricultural operations. Since the land is adjoining the road, the petitioner applied for holding market in the year 2009, which was rejected on the ground of electricity lines and on many other grounds, such as the crowding of the area and encroachments. There is no material placed on record that the petitioner has got the land converted into abadi land. In the circumstances, the assertion that the petitioner's right to beneficial enjoyment of the land has been violated, does not have any merit. The petitioner can use and utilise the land for agricultural operations or for any other purposes in accordance with law.
17. The writ petition for deciding the representation to remove the electricity lines and in the alternative for compensation is dismissed. The respondents have agreed for shifting of the lines subject to deposit of the cost worked out in the letter of the Executive Engineer, Electricity Distribution Division dated 30.1.2012. In case the petitioner deposits this amount and the escalated cost on account of rise in price in the last more than one year, the respondents may consider to realign and shift the electricity lines.
Dt.05.04.2013 SP/