IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:28-1-2008
CORAM:
THE HON'BLE MR.JUSTICE P.JYOTHIMANI
W.P.No.36566 of 2007
and M.P.No.1 of 2007
.....
T.S.T.Kaznavi ... Petitioner
vs.
1.Tamil Nadu Electricity Board
rep. By its Chairman
NPKKR Maligai
800 Anna Salai
Chennai 600 002.
2.The Chief Engineer
T.N.E.B. Chennai south
NPKKR Maligai
800 Anna Salai
Chennai 600 002.
3.The Assistant Divisional Engineer
TNEB Guduvancherry
Kancheepuram District.
4.The Assistant Engineer
TLC/TNEB, Chrompet
Chennai.
... Respondents
Writ petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus as stated therein.
For petitioner : Mr. R.Vasudevan
for Mr.T.Susindran
For respondents : Mr.P.S.Raman
Addl.Advocate General
for Mr.R.Subbiah
Spl.Govt. Pleader
..
ORDER
The writ petitioner is the owner of the vacant landed property to an extent of 1.80 acres comprised in Survey No.5/2 at No.117, Pandur Village, Chengelpet Taluk, Kancheepuram District, having purchased the same under a registered sale deed dated 30.11.2006 and the patta in respect of the property stood in the name of his vendor Mrs.Vijayalakshmi in Patta No.409, the petitioner has applied for transfer of patta in his name. According to the petitioner, right from 1939, the predecessors in title of the petitioner have been in continuous possession and enjoyment of the property. On 16.11.2007, some contract labourers employed by the Assistant Divisional Engineer, Tamil Nadu Electricity Board, Guduvancherry, third respondent herein, have brought building materials and entered into the lands of the petitioner and started digging and made excavation, in order to erect huge transmission high-tension electric line tower. On 19.11.2007, the petitioner has sent a telegram to the first respondent, the Chairman, Tamil Nadu Electricity Board and has also issued a legal notice through his counsel on the same day. The petitioner apprehends that the respondents may proceed with the proposed platform work for erecting the high tension electric line tower in his property. Hence, the petitioner has filed the present writ petition to forbear the respondents from interfering with his peaceful possession and enjoyment of the above said property without resorting to due process of law. According to the petitioner, the conduct of the respondents in entering into the patta land belonging to the petitioner is unauthorised, especially when the property is not acquired by the Electricity Board, even if it is required for public purpose. He also challenges the conduct of the respondents, as it is in violation of the principles of natural justice, and there was no proceedings under the Land Acquisition Act.
2. The Tamil Nadu Electricity Board has filed counter affidavit. According to the respondent Electricity Board, as per Sections 164 and 185(2)(a) of the Electricity Act, 2003, the Board has the power of the "Telegraph Authority" under the Indian Telegraph Act,1885, with regard to laying of lines and erecting poles. The said power has already been conferred on the Electricity Board by the "Appropriate Government", viz., Government of Tamil Nadu under Section 51 of the Indian Electricity Act, 1910 in G.O.Ms.No.1455 (P.W.D.) dated 06.06.1961 and extended by Notification dated 28.06.2004, and as such the Electricity Board being the "Transmission Licensee" under the Electricity Act,2003, is not bound by the provisions of Sections 12 to 16, 18 and 19 of Indian Electricity Act, 1910.
2(a). According to the respondent Electricity Board, pursuant to the policy decision taken by the Union of India to establish a National Power Grid, authorised the Power Grid Corporation of India Ltd., to erect a 400 K.V. Transmission system from Kolar to Sriperumbudur 400 K.V.Circuit and link the same with Neyveli 400 K.V. Sub Station. The establishment of 400 K.V. Sub Station at Melakottaiyur requires to be synchronised with the commissioning of Talcher Stage II in Orissa, so that the power flow from Talcher Stage II will be available to Chennai in time. Under the said Scheme, the Power Grid Corporation of India Ltd. proposed to erect a 400 K.V. Sub-station at Melakottaiyur near S.P.Koil on the basis of the locational and technical advantage to link both the Kolar SPDR and the Neyveli - Chennai Grid.
2(b). The said proposal for establishing a new 400/230 K.V. Sub Station at Melakottaiyur (Kalivanthapattu) is planned for ensuring the stabilised and reliable supply conditions in Southern parts of Chennai area. The said location is contiguous to Chennai city and has the infrastructure facilities like road, electricity, etc. The respondent Electricity Board considered the proposal and sanctioned it on 09.09.2002 with an estimated cost of Rs.3362 lakhs. It authorised the Tamil Nadu Electricity Board to invoke the provisions of Section 42 of the Electricity (Supply) Act,1948 and exempted the provisions of Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910, and the work had to be taken up after ensuring budget provision.
2(c). Due to the financial difficulties experienced by the Board, the work of erecting 400/230 K.V. Sub Station was entrusted to the Power Grid Corporation of India Ltd., and the work of erecting 230 K.V. Lines connecting the proposed Sub Station was retained by the respondent Electricity Board and the revised proposal was considered and the same was sanctioned in Permanent B.P.(CH)No.410 (Technical Branch) dated 07.09.2006 at an estimated cost of Rs.5273.57 lakhs in partial modification of the Notification of the Board dated 09.09.2002. As per the sanction, the Electricity Board being a "Transmission Utility" and the "Licensee", will exercise the powers of Telegraph authority by virtue of the provisions contained in Section 164 read with Sub-section (2)(a) of Section 185 of the Electricity Act,2003.
2(d). According to the respondent Electricity Board, it conducted extensive survey including the environmental considerations, road crossing, power line crossing, telecommunication line crossing, railway line crossing and river crossing apart from inhabited area. It is the case of the respondent Electricity Board that almost 90% of the work under the Scheme was completed and the disputed site is the one remaining part to be completed. It is the further case of the Electricity Board that the Power Grid Corporation India Ltd., has already completed the work of erecting sub-station and commissioning of the same is being postponed due to the delay in completing the present feeder lines and any further delay will seriously impair the capacity of the Electricity Board. It is also stated that before the Scheme was formulated, extensive survey was made and the same was also published in the local newspapers as well as in Government Gazette and objections were called for and the petitioner, who has not raised any objection at that time, cannot raise the plea that no prior notice was issued.
2(e). It is the further case of the respondent Electricity Board that, while exercising powers of the Telegraph authority under the Indian Telegraph Act,1885, the Electricity Board need not get the consent of the land owners before putting up towers and drawing overhead lines. The Electricity Board is empowered to erect poles and draw electrical lines without any prior permission from the landowner. In spite of the same, the Electricity Board has published the brief details of the Scheme in the local newspapers as well as in the Government Gazette.
2(f). It is also denied that the Electricity Board can erect tower and draw overhead lines only after acquiring the lands from the petitioner under the provisions of the Land Acquisition Act. Since the Electricity Board being a Transmission Utility exercising the powers under Section 164 r/w Section 185(2)(a) of the Electricity Act,2003, the respondent Board can implement the Scheme. It is also the further case of the respondent Electricity Board that for erecting tower and drawing overhead line, the Electricity Board need not acquire properties and to take over the title of the same.
3. Mr.R.Vasudevan, learned counsel appearing for the petitioner would submit that the power of respondent Electricity Board in erecting the tower as well as drawing overhead lines is subject to the right to property of the citizens and therefore, the conduct of the respondent Electricity Board in unauthorisedly entering into the private property of the petitioner without following due process of law is abuse of all canons of law. His further submission is that though the petitioner being the owner of the property having purchased the same for valuable consideration and the revenue records stood in the name of the vendor of the petitioner, the respondent Electricity Board failed to give notice to the petitioner and not considered the objections raised by the petitioner, while proceeding with the work. The entire process as stated by the respondent Electricity Board is opposed to the basic principles of law.
4. On the other hand, Mr.P.S.Raman, learned Additional Advocate General has taken me through various provisions of the Indian Electricity Act, 1910, Electricity (Supply) Act,1948 and the Electricity Act,2003, apart from the provisions in Indian Telegraph Act,1885. He would also rely upon various judgements to show that when the powers are enforced by the respondent Electricity Board as Telegraph authority under the Indian Telegraph Act,1885, especially under Section 10, it does not require any notice to be sent to the occupiers or owners and the conduct will not amount to acquisition. In that regard he would rely upon the judgements reported in E.Venkatesan vs. Chairman, T.N.Electricity Board, Madras (AIR 1997 Madras 64) and Nithyanandam,M. & 2 others vs. The Chairman, Tamil Nadu Electricity Board, Madras & 3 others (1994 WLR 445). He would also submit that the respondent Electricity Board has acted as a "Transmission Licensee" under the Electricity Act and not as Distribution Licensee or Generating Company, which can be also individual persons while such act as "Transmission Licensee" can be done only by the Board or by the Government Company specified by the State Government as per Section 39(1) of the Electricity Act,2003. In that way he would distinguish the judgement of this Court in W.P.No.49172 of 2006 dated 18.01.2007. His further submission is that erecting of electric poles as well as drawing the overhead lines by the respondent Electricity Board as Transmission Utility Organisation/State Transmission Utility does not require any acquisition proceedings be completed before proceeding with the work. He submits that as a State Transmission Utility, as per the provisions of the Electricity Act, 2003, the respondent Electricity Board has powers under the Indian Telegraph Act, 1885 especially under Section 10. According to him, the respondent Electricity Board is empowered to maintain telegraph line under or across any immovable property and it has the right of user of the property for the purpose of drawing electrical line and erecting posts and while doing that, the Electricity Board has to see that as little damage as possible should be done to the property and in cases where certain damages are caused, the owners of the property are entitled for compensation as per the procedure for payment of compensation under Section 16 of the Indian Telegraph Act,1885 and therefore, it is not as if the petitioner has no remedy at all. He would also submit that almost entire work has been completed and the only remaining work is in respect of disputed property and because of it, electrical supply which has been taken from Orissa is stalled causing enormous loss not only to the Board, but also to the people as well as to the consumers.
5. I have heard the learned counsel for the petitioner as well as respondents and perused the entire records.
6. On the factual situation, it is not in dispute that the petitioner is the owner of the property as stated above. As it is placed by the learned Additional Advocate General, the work of erecting 230 K.V. Line which is retained by the Tamil Nadu Electricity Board is almost completed, except in respect of the disputed property belonging to the petitioner, which is actually in the last edge of the entire scheme.
7. It is also seen that the Tamil Nadu Electricity Board in its Permanent B.P.(CH)No.410 Technical Branch dated 07.09.2006 has granted revised administrative approval for erection of 230 K.V. Lines from Melakottaiyur 400/230 KV SS to Kadapperi 230 KV SS, Acharapakkam 230 KV SS, SP Koil 230 KV SS and Siruseri 230 KV SS in combination of multi circuits and 230 KV DC circuits, renaming Melakottaiyur 400 KV SS as Kalivanthapattu 400 KV SS. By the Notification issued as per Section 185(2)(a) of the Electricity Act,2003, Tamil Nadu Electricity Board has acted as a Transmission Utility and Licensee, exercising the powers as telegraph authority. The said Board proceedings is as follows:
"TECHNICAL BRANCH
Permanent B.P.(CH)No.410 Dated:07.09.2006.
Viya, Aavani.22,
Thiruvalluvar Aandu 2037.
READ: Chairman's approval dated 03.09.2006.
PROCEEDINGS:
1. The Tamil Nadu Electricity Board hereby approves revised proposal for erection of 230 KV lines from Melakottaiyur 400/230 KV SS to Kadapperi 230 KV SS, Acharapakkam 230 KV SS, SP Koil 230 KV SS and Siruseri 230 KV SS in combination of multi circuits and 230 KV DC circuits in Chengalpattu EDC at an estimated cost of Rs.5273.57 lakhs Gross & Rs.4994.00 lakhs Nett, in partial modification of (Per) B.P.(FB)No.130 Dt.09.09.2002 duly cancelling the approval already accorded for the above works and renaming of Melakottaiyur 400 KV SS as Kalivanthapattu 400 KV SS. The detailed estimate is annexed to these proceedings.
2. The expenditure is chargeable to Tamil Nadu Electricity Board - Funds - Capital Expenditure - Chengalpattu EDC - A/C Code No.14.646.
3.By virtue of the provisions contained in sub-section (2)(a) of section 185 of the Electricity Act,2003, the Board being the Transmission Utility and Licensee will exercise the powers of the Telegraph Authority under the provisions of section 164 of the Electricity Act,2003, which have already been conferred upon the Board under section 51 of the Indian Electricity Act,1910.
4.The work is to be taken up after ensuring budget provision."
8. It is also seen that the Tamil Nadu Electricity Board for the purpose of construction of Sub Station and Transmission lines to transmit and distribute powers to local centres has issued Notification in the newspapers on 05.09.2006, which also contain the erection of Kalipattu (Melakottaiyur) SP Koil of Tharamani - 230 KV SS. It is also seen that the respondent Electricity Board has followed the technical report of the Government of India before formulating the scheme and also studied the various aspects, including statutory regulations for crossing of roads, power lines, telecommunication lines, railway tracks etc., and after thorough study, estimate has also been arrived at for the said scheme and a gazette notification has also been issued on 01.10.2003.
9. Under the Electricity (Supply) Act,1948, the Electricity Board had the power of placing any wires or poles, wall brackets, stays apparatus and appliances for transmission and distribution of electricity or for the transmission of telegraphic or telephonic communications necessary for the proper co-ordination of the works of the Board, which power the telegraph authority possesses under Indian Telegraph Act,1885. However, the said power of the Board under the said Act was notwithstanding anything contained in Sections 12 to 16, 18 and 19 of the Indian Electricity Act,1910 and without prejudice to the requirement of Section 17 of the said Act. Section 42 of the Electricity (Supply) Act,1948 is as follows:
" 42. Powers to Board for placing wires, poles, etc. - [(1)] Notwithstanding anything contained in Sections 12 to 16 and 18 and 19 of the Indian Electricity Act,1910 (9 of 1910), but without prejudice to the requirements of Section 17 of that Act "where provision in such behalf is made in a sanctioned scheme, the Board shall have, for the placing of any wires, poles, wall-brackets, stays apparatus and appliance for the transmission and distribution of electricity, or for the transmission of telegraphic or telephonic communications necessary for the proper co-ordination of the works of the Board, all the powers which the telegraph authority possesses under Part III of the Indian Telegraph Act,1885 (13 of 1885) with regard to a telegraph established or maintained by the Government or to be so established or maintained:
Provided that where a sanctioned scheme does not make such provision as aforesaid, all the provisions of Sections 12 to 19 of the first mentioned Act shall apply to the works of the Board.
[(2)] A generating company may, for the placing of wires, poles, wall-brackets, stays apparatus and appliances for the transmission of electricity, or for the transmission of telegraphic or telephonic communications necessary for the 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.]"
10. In the Indian Electricity Act,1910, Sections 12 to 16, deal with the "works" relating to the provisions for opening and breaking up of streets, railways and tramways by the Licensee being a person licensed to supply energy, as defined under Section 2(b) of the said Act. The said provision authorised the Licensee to open and break up the soil and pavement of any street, railway or tramway; open and break up any sewer, drain or tunnel in or under any street, railway or tramway; do all other acts necessary for the supply of energy subject to the terms and conditions of the licence. The Licensee has also been authorised to lay down or place any electric supply-line or any other work in through or against any building, or on, over or under any land not dedicated to public use, where the supply-line or work had already been laid down and in cases where the owner or occupier of any building or land make objections, any suitable alterations can be made on necessary directions by the District Magistrate or in a Presidency-town, the Commissioner of Police.
11. Section 13 of Indian Electricity Act,1910 imposes the obligation on the Licensee to issue notice. Section 14 enables the Licensee to alter the position of any pipe or wires of any place. Section 15 enables the Licensee to dig or sink any trench for laying down any new electric supply-lines or other works near to which any sewer, drain, water course or work under the control of the State Government has been lawfully placed. Section 16 enables the Licensee to open or break up the soil or pavement of any street, railway or tramway or any sewer, drain or tunnel. Likewise, Section 18 of the Act enables the Licensee to draw overhead lines across any street, railway, tramway, canal or waterway, by giving necessary communication to the State Government. It also provides for certain procedure to remove any tree standing or lying near an overhead line, after obtaining necessary permission from the Magistrate of the First Class or in the presidency-town, the Commissioner of Police.
12. Section 17 of the Indian Electricity Act,1910 imposes the duty on the Licensee to give notice in writing to the telegraph authority and the Licensee shall act as per the reasonable requirements laid down by the telegraph authority. The said section reads as under:
" Section 17. Notice to telegraph authority.- (1) A licensee shall before laying down or placing, within ten yards or any parts of any telegraph-line, any electric supply-lines or other works [not being either service-lines, or electric supply-lines for the repair, renewal or amendment of existing works of which the character or position is not to be altered], give not less than ten days' notice in writing to the telegraph authority, specifying-
(a) the course of the works or alterations proposed,
(b) the manner in which the works are to be utilised,
(c) the amount and nature of the energy to be transmitted, and
(d) the extent to, and manner in, which (if at all) earth returns are to be used,
and the licensee shall conform with such reasonable requirements, either general or special, as may be laid down by the telegraph authority within that period for preventing any telegraph-line from being injuriously affected by such works or alterations;
Provided that, in case of emergency (which shall be stated by the licensee in writing to the telegraph authority) arising from defects in any of the electric supply-lines or other works of the licensee, the licensee shall be required to give only such notice as may be possible after the necessity for the proposed new works or alteration has arisen.
(2) Where the works to be executed consist of the laying [or placing] of any service-lines, the licensee shall, not less than forty-eight hours before commencing the work, serve upon the telegraph-authority a notice in writing of his intention to execute such works."
13. Now, coming to the provisions of the Indian Telegraph Act,1885, Part III Section 10 of the said Act empowers the telegraph authority to place and maintain telegraph lines and posts. The said provision makes it very clear that while doing the said work to maintain telegraph-line upon any immovable property, the Central Government does not use the power of acquisition of any right except the right of user in respect of the property under, over, along, across, in or upon which the telegraph authority places any telegraph-line. It also makes clear that while performing the function, the authority shall do all necessary things so as to make as little damage as possible. In cases of any damage caused and disputes raised in that regard, Section 16 provides the procedure for settling such disputes. It makes clear that when an occupier resists or obstructs the conduct of the authority, then the District Magistrate is empowered to grant permission to the authority and in cases where any dispute arises regarding the sufficiency of compensation to be paid under Section 10(d), then the procedure is contemplated to be followed by the District Judge within whose jurisdiction the property is situated. The said provisions are as follows:
" Section 10.Power for telegraph authority to place and maintain telegraph lines and posts.- The telegraph authority may, from time to time, place and maintain a telegraph line under, over, along, or across, and posts in or upon, any immovable property:
Provided that-
(a) the telegraph authority shall not exercise the powers conferred by this section except for the purposes of a telegraph established or maintained by the [Central Government], or to be so established or maintained;
(b) the [Central Government] shall not acquire any right other than that of user only in the property under, over, along, across, in or upon which the telegraph authority places any telegraph line or post; 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 person 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 (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 (45 of 1860).
(3) If any dispute arises concerning the sufficiency of the compensation to be paid under section 10, clause (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him.
(4) If any dispute arises as to the persons entitled to receive compensation, or as to the proportions in which the persons interested are entitled to share in it, the telegraph authority may pay into the Court of the District Judge such amount as he deems sufficient or, where all the disputing parties have in writing admitted the amount tendered to be sufficient or the amount has been determined under sub-section (3), that amount; and the District Judge, after giving notice to the parties and hearing such of them as desire to be heard, shall determine the persons entitled to receive the compensation or, as the case may be, the proportions in which the persons interested are entitled to share in it.
(5) Every determination of a dispute by a District Judge under sub-section (3), or sub-section (4) shall be final:
Provided that nothing in this sub-section shall affect the right of any person to recover by suit the whole or any part of any compensation paid by the telegraph authority, from the person who has received the same."
Therefore, for any action done by the Licensee, in the present case the Electricity Board, the Electricity (Supply) Act,1948, viz., the Old Act, itself empowers the Licensee to act as a telegraph authority under the Indian Telegraph Act,1885, as stated above.
14. The Electricity Act,2003, which holds the field received the assent of the President of India on 26.05.2003 and it was published in the gazette on 02.06.2003 to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity and generally for taking measures conducive to development of electricity industry, promoting competition therein, protecting interest of consumers and supply of electricity to all areas, rationalisation of electricity tariff, ensuring transparent policies regarding subsidies, promotion to efficient and environmentally benign policies, constitution of Central Electricity Authority, Regulatory Commissions and establishment of Appellate Tribunal, etc. The Electricity Act,2003 is having overriding effect subject to Section 173 of the Act, which relates to the Consumer Protection Act,1986 or the Atomic Energy Act,1962 or the Railways Act,1989. The provisions are also stated to be in addition to and not in derogation of other laws, under Sections 174 and 175, which are as follows:
"Section 174. Act to having overriding effect.- Save as otherwise provided in section 173, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
175. Provisions of this Act to be in addition to and not in derogation of other laws.- The provisions of this Act are in addition to and not in derogation of any other law for the time being in force."
15. The term "generate" is defined under Section 2(29) of the Electricity Act,2003, which reads as under:
"2(29). "generate" means to produce the electricity from a generating station for the purpose of giving supply to any premises or enabling a supply to be so given. "
16. The term "generating company" is stated under Section 2(28), which reads as under:
"2(28). "generating company" means any company or body corporate or association or body of individuals, whether incorporated or not, or artificial judicial person, which owns or operates or maintains a generating station."
17. Likewise, the terms "transmission lines" and "transmission licensee" are defined under Sections 2(72) and 2(73) of the Act, which read as under:
" 2(72). "transmission lines" means all high pressure cables and overhead lines (not being an essential part of the distribution system of a licensee) transmitting electricity from a generating station to another generating station or a sub-station, together with any step-up and step-down transformers, switch-gear and other works necessary to and used for the control of such cables or overhead lines, and such buildings or part thereof as may be required to accommodate such transformers, switch-gear and other works;
"2(73). "transmission licensee" means a licensee authorised to establish or operate transmission lines;"
18. The term "distribution licensee" is defined under Section 2(17) of the Act, which reads as under:
" 2(17). "distribution licensee" means a licensee authorised to operate and maintain a distribution system for supplying electricity to the consumers in his area of supply."
Likewise, the term "works" is defined under Section 2(77) of the Act, which reads as under:
" 2(77). "works" includes electric line, and any building, plant, machinery, apparatus and any other thing of whatever description required to transmit, distribute or supply electricity to the public and to carry into effect the objects of a licence or sanction granted under this Act or any other law for the time being in force."
19. "State Transmission Utility" is defined under Section 2(67) of the Act, which reads as under:
" 2(67). "State Transmission Utility" means the Board or the Government company specified as such by the State Government under sub-section (1) of section 39;"
20. As per Section 39(1) of the Electricity Act,2003, the State Government has notified the Tamil Nadu Electricity Board as "State Transmission Utility" as stated in the counter affidavit of the Board. By virtue of the powers under Section 67(2) of the Electricity Act,2003, the Government has framed Rules called, "The Works of Licensees Rules,2006". These Rules relate to the works of licensees pertaining to the distribution and supply of electricity to the consumers. Section 68 of the Electricity Act,2003 enables the appropriate Government to grant approval regarding overhead lines. Section 185 of the Electricity Act,2003, which repealed the Indian Electricity Act,1910, Electricity (Supply) Act,1948 and the Electricity Regulatory Commission Act,1998, saves any action taken under the previous Acts and Laws in so far as it is not inconsistent with the provisions of Act,2003, stating that such acts are deemed to be the acts under the new Act.
21. Section 164 of the Electricity Act,2003, enables the appropriate Government to confer upon any public officer, licensee or any other person engaged in the business of supplying electricity under the Act, the powers of the telegraph authority under the Indian Telegraph Act,1885 for placing of electric lines and electrical plant for the transmission of the electricity, or for the purposes of a telephonic or telegraphic communication necessary for the proper co-ordination of the works, etc. The said sections read as under:
" Section 164. Exercise of powers of Telegraph Authority in certain cases.- The Appropriate Government may, by order in writing, for the placing of electric lines or electrical plant for the transmission of electricity or for the purpose of telephonic or telegraphic communications necessary for the proper co-ordination of works, confer upon any public officer, licensee or any other person engaged in the business of supplying electricity under this Act, subject to such conditions and restrictions, if any, as the Appropriate Government may think fit to impose and to the provisions of the Indian Telegraph Act,1885(13 of 1885), any of the powers which the telegraph authority possesses under that Act with respect to the placing of telegraph lines and posts for the purposes of a telegraph established or maintained, by the Government or to be so established or maintained."
Section 185. Repeal and saving.-
(1) .....
(2) Notwithstanding such repeal,-
(a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission, authorisation or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act;"
22. Thus by exercise of the powers under Sections 164 and 185(2)(a) of the Electricity Act,2003 and in continuation of the powers already conferred under Section 51 of the Indian Electricity Act,1910, the respondent Electricity Board acted as a telegraph authority under the Indian Telegraph Act,1885 in performing the functions as State Transmission Utility. The relevant provision from Indian Telegraph Act,1885 reads as under:
" 51. Exercise in certain cases of powers of telegraph authority.- Notwithstanding anything contained in Sections 12 to 16 (both inclusive) and Section 18 and 19, the Central Government in the case of inter-State transmission system and the State Government in the case of inter-State transmission system, as the case may be, may, by order in writing, for placing of electric supply-lines, appliances and apparatus for the transmission of energy or for the purpose of the telephonic or telegraphic communication necessary for the proper co-ordination of works, confer upon any public officer, Central Transmission Utility, State Transmission Utility, licensee, Transmission licensee or any other person engaged in the business of transmission or supplying energy to the public under this Act, subject to such conditions and restrictions (if any) as the Central Government or the State Government, as the case may be, may think fit to impose, and to the provisions of the Indian Telegraph Act, 1885 any of the powers which the telegraph authority possess under the Act, with respect to the placing of telegraph-lines and posts for the purpose of a telegraph established or maintained by the government or to be so established or maintained."
23. While construing the provision of Section 10 of the Indian Telegraph Act,1885, along with Section 42 of the Electricity (Supply) Act,1948, a Full Bench of Kerala High Court in Arya Antherjanam vs. Kerala State Electricity Board, Trivandraum (AIR 1996 Kerala 309 (FB)) held that in respect of cutting of trees for the purpose of erecting transmission lines, the land owners are entitled to claim compensation for diminution in market value of the property. The Full Bench has held as follows:
" 11. We find merit in the contention of the claimants that since capitalisation method is not being adopted for assessing the quantum of compensation for cutting trees it is open to the land owners to claim compensation for diminution in market value of the property. Section 10 proviso (d) makes it mandatory that while drawing the line through any property in exercise of the powers given under S.10 the authority shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of such power. In 1961 Ker LT 238: (AIR 1961 Ker 237) (supra) the Division Bench of this Court observed that destruction of trees standing on agricultural land is one of the items of damage, which can be valued and assessed. We are in agreement with the view. It would mean that apart from the compensation for damage done to the trees there can be other damage to the land for which compensation can be claimed. As mentioned earlier, in 1967 Ker LT 938 (supra) a Division Bench of this Court has accepted the principle that even after granting compensation for destruction of the trees owners of the property can claim compensation for diminution in market value of the land by the erection of transmission towers and of electric posts and by the stringing of electric wires. The same view was taken in 1989 (1) Ker LT 451:(AIR 1989 KER 198) as follows (at p.208 of AIR):-
"Since the compensation payable under S.10(d) of the Telegraph Act is the just equivalent of what the owner has been deprived of, he is entitled also to any diminution in value of land for the reason of the drawal of overhead power lines across the land".
We are in full agreement with the above view taken by the two Benches of this Court regarding the eligibility for compensation on diminution of land value."
The Full Bench has also held that while deciding about the compensation regarding the diminution of the value, it is the duty on the part of the claimant to mitigate the damages in the following terms:
" 20. In the light of the above discussion we are inclined to take the view that the claimants have duty to mitigate the damage by resorting to any other cultivation which is reasonably possible in the land covered by the electric line and can be carried on economically. Of course the Board cannot compel the claimants to carry on cultivation underneath the electric line. But if such cultivation is reasonably possible and at the same time they failed to carry on such cultivation it will be a factor for consideration at the time of quantification of the damages."
Ultimately, the Full Bench has held as follows:
" 22. In this case it is the claimant who knows best as to how his land could be cultivated with other crops which would not violate the restrictions regarding open space to be left from the electric lines, towers and posts. It is quite plausible that every landowner would be using the land beneath the electric lines (be they of high tension or low tension) to raise cultivation or for some other purpose except of course for growing tall tress or constructing high structures. Thus, regard being had to the common course of natural events, the Court can draw a presumption that agricultural operation in a reasonably profitable manner can be carried on in the affected land except growing tall trees. Hence the burden is on the claimant to rebut the said presumption.
23. The upshot of the above discussion is that it is open to the owners of the land to claim compensation for diminution in land value when towers and poles are erected on and electric lines drawn over their lands subject to the conditions detailed in this judgement. The quantum of damages shall be fixed on the basis of the principles enunciated hereinabove. Whether claimants had taken reasonable steps to mitigate the damage or not is a question to be considered by the District Judge on the evidence in each case and subject to the presumption and onus indicated above."
24. In M.Nithyanandham and two others vs. Chairman, Tamil Nadu Electricity Board, Madras-2 and others (1994 WLR 445) AR.Lakshmanan,J.(as he then was) while analysing the provisions of the Indian Electricity Act,1910; Electricity (Supply) Act,1948 and Section 10 of the Indian Telegraph Act,1885, held that there is no obligation on the part of the competent authority to issue any prior notice. It was held that it is not open to anybody to contend that high tension towers cannot be put up and in the light of the non-obstante clause in Section 42 of the Electricity (Supply) Act,1948, the applicability of Sections 12 to 16, 18 and 19 of the Indian Electricity Act,1910 are excluded and the only option open to the affected person is to claim compensation as damages as per the provisions of the Indian Telegraph Act,1885. Further, it was held as under:
" 26. The above section, in my opinion, authority for placing the poles or the towers of 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 retarding the sufficiency of the compensation.
27. In the light of the non-obstante clause 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 stated above, the petitioners strongly relied on the decision reported in 1959 (II) MLJ 446. In that case, Basheer Ahemd Sayeed, J., was pleased to deal only with the scope of S.12. The scope of S.42 was apparently not brought to the notice of the learned Judge. Therefore, the petitioners herein cannot call in aid the said decision.
28. It was argued by Mr.A.Venkatesan, learned counsel for the petitioners, that the learned Judge had observed in the above decision that only apparatus and appliances to be placed and high tension wire cannot at all be used or put up. The petitioners cannot rely upon the observations made by the learned Judge. 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.
29. A decision of Sethuraman,J., in 91 L.W.558 was also brought to my notice wherein the learned Judge has held that the Electricity Board can fix compensation.
30. Thus, I am of the view, that as the provisions stand and discussed above, I do not think that it is 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 or 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, as I understand the provisions in the Telegraphs Act and the provisions of the Indian Electricity Act, I do not consider it necessary that there should be prior notice. A Full Bench of the Kerala High Court has also taken a similar view in the decision reported in AIR 1972 Kerala 47 cited supra."
25. It was in E.Venkatesan and others vs. Chairman, Tamil Nadu Electricity Board, Madras and others (AIR 1997 Madras 64), S.S.Subramani,J. while construing Section 51 of the Electricity (Supply) Act,1948 along with Section 10 of the Indian Telegraph Act,1885, has held that while coordinating the work of transmission, the Electricity Board need not acquire lands and therefore, no notice is required to the owner before laying poles or constructing any tower, nor any consent is required, as the lands are used only for the purpose of laying electric lines. After analysing the entire case law as well as the provisions of the Act, in detail, the learned Judge held as under:
" 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."
26. An analysis of the order of Prabha Sridevan,J. in W.P.No.49172 of 2006 etc. batch, dated 18.01.2007 shows that the decision was rendered while dealing with the "Works of Licensees Rules,2006" which relates to distribution as well as generation of electricity. The said case relates to two projects, viz., (i) carrying out reconnaissance, Preliminary Survey, Detailed Survey, Check Survey and contouring at Tower Locations for 400 KV D.C LILO Line from existing 400 KV S/C Kolar - Sriperumbudur Line to New Sub-station at Kalivandapattu (Melakottaiyur); and (ii) the construction of Udumalpet to Arasur 400 KV D/C Power Transmission Line comprising 195 Towers with a length of 65 kilometres, connecting Udumalpet 400 KV Sub-station to Arasur 400 KV Sub-station. Now, it is relevant to see that Section 2(32) of the Electricity Act,2003 defines "grid", which reads as under:
" 2(32)."grid" means the high voltage backbone system of inter-connected transmission lines, sub-station and generating plants."
While dealing with the powers of the said "grid corporation" the learned Judge, by applying Section 16(1) of the Indian Telegraph Act,1885, has directed the Power Grid Corporation to approach the District Magistrate concerned to deal with the objections raised by the petitioners in each of the said cases, with a further direction to the District Magistrate to consider the objections and pass orders in accordance with law.
27. In the present case, it is crystal clear that the Board acted as the State Transmission Utility as per Section 2(67) of the Electricity Act,2003 and by virtue of Notification issued by the State Government under Section 39 (1) of the said Act, the Board is not engaged in the business of trading of electricity and therefore, it is certainly different from the Power Grid Corporation and in that view of the matter, the above said judgement is distinguishable from the facts of the present case. The powers of the Board as "State Transmission Utility" is that of telegraph authority traceable under Section 10 of the Indian Telegraph Act,1885 and therefore, in cases of dispute as to compensation regarding the properties, necessarily the procedure under Section 16 of the Indian Telegraph Act,1885 has to be followed.
28. In any event, on the facts and circumstances of this case, the major point which is urged by the petitioner is that the property was sought to be acquired without following due process of law and by virtue of various judgements, especially relating to the powers of the Board as "State Transmission Utility", there is no necessity to give any notice for the purpose of erection of tower or for making "transmission lines" and therefore, the petitioner is not entitled for the relief as claimed, except the right under Section 10(d) of the Indian Telegraph Act,1885, which enables the petitioner to get compensation for any damages sustained by him while the Board exercising its powers as "State Transmission Utility" and the compensation is determinable as per Section 16 of the Indian Telegraph Act,1885.
In view of the same, the writ petition stands dismissed with the above observations. No costs. Consequently, connected MP. is closed.
kh
To
1.The Chairman
Tamil Nadu Electricity Board
NPKKR Maligai
800 Anna Salai
Chennai 600 002.
2.The Chief Engineer
T.N.E.B. Chennai south
NPKKR Maligai
800 Anna Salai
Chennai 600 002.
3.The Assistant Divisional Engineer
TNEB Guduvancherry
Kancheepuram District.
4.The Assistant Engineer
TLC/TNEB, Chrompet
Chennai.
