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Judgment
B.S. Patil
In this writ petition, petitioner is seeking a declaration that Section 10 of the Indian Telegraph Act, 1885 (for short, ''the Act''), is unconstitutional. A direction is also sought against the respondent not to erect HT tower over Sy. No. 84/2 and not to draw HT lines over the lands bearing Sy. Nos. 81/2, 80, 78, 70, 72 & 84 of Itgaipur village, Hessaraghatta Hobli, Bangalore North Taluk. Similar relief is sought in respect of Sy. Nos. 21/1, 20/1 & 20/4 of Dibbur village, Hessaraghatta Hobli, Bangalore North Taluk. During the course of arguments, learned Senior Counsel Mr. Uday Holla appearing for the petitioner submits that the relief sought seeking declaration that Section 10 of the Act, is unconstitutional, is not pressed for the present. Hence, the said question is not gone into in this writ petition.
As regards the other relief, the grievance made by the petitioner is that without providing an opportunity of being heard and without any legal justification, respondent-Corporation has resorted to arbitrary and high handed action in attempting to lay high tension power lines and erect high tension towers in the lands acquired by the petitioner for the purpose of establishing educational institutions.
Several contentions on merits with regard to the procedure required to be followed are urged in the writ petition, apart from narrating the facts as to how the petitioner-institution is going to be affected if the HT power lines and HT towers are permitted to be drawn and erected over the lands belonging to the petitioner. It is unnecessary to refer to all those contentions, as the essential grievance made lies in a short compass, in as much as, the question is whether the respondent can unilaterally decide to lay the power lines despite objection raised by the petitioner.
It is not in dispute that the petitioner has resisted the act of the respondent in drawing the power line and in erecting the tower. In such an event, as is clear from Section 16 of the Act and the Rules known as the Works of Licensees Rules, 2006, framed in exercise of the powers conferred by clause (e) of subsection (2) of Section 176 read with sub-section (2) of Section 67 of the Electricity Act, 2003, that such objection raised shall be examined by the District Magistrate or the Commissioner of Police or any other officer authorized by the State Government. For the sake of convenience, Rule 3 of the said Rules is extracted hereunder:
License to carry out works - (1) A license may -
(a) carry out works, lay down or place any electric supply line or other works in through, or against any building, or on over or under any land whereon, whereover or whereunder any electric supply-line or works has not already been lawfully laid down or placed by such licensee, with the prior consent of the owner or occupier of any building or land;
(b) fix any support of overhead line or any stay or strut required for the purpose of securing in position any support of an overhead line on any building or land or having been so fixed, may alter such support:
Provided that in case where the owner or occupier of the building or land raises objections in respect of works to be carried out under this rule, the licensee shall obtain permission in writing from the District Magistrate or the Commissioner of Police, or any other officer authorised by the State Government in this behalf, for carrying out the works:
Provided further that if at any time, the owner or occupier of any building or land on which any works have been carried out or any support of an overhead line, stay or strut has been fixed shows sufficient cause, the District Magistrate or the Commissioner of Police, or the officer authorised may by order in writing direct for any such works, support, stay or strut to be removed or altered.
(2) When making an order under sub-rule (1), the District Magistrate or the Commissioner of Police or the officer so authorised, as the case may be, shall fix. after considering the representations of the concerned persons, if any, the amount of compensation or of annual rent, or of both, which should in his opinion be paid by the licensee to the owner or occupier.
(3) Every order made by a District Magistrate or a Commissioner of Police or an authorised officer under sub-rule (1) shall be subject to revision by the Appropriate Commission.
It is thus clear that the respondent cannot unilaterally take a decision when objection is raised and resistance is offered for erecting the HT tower or drawing up of HT lines.
Mr. Uday Holla, learned Senior Counsel appearing for the petitioner placing reliance on the decision of the Division Bench of this Court in the case of Thirthesh A.S. Vs. Under Secretary to the Government of Karnataka, Department of Power Corporation and Others, , contends that in such a situation, the District Magistrate has to issue notice to the person who has offered resistance/obstruction. consider his objections and thereafter pass appropriate orders.
At this stage, learned Counsel appearing for the respondent-Corporation fairly submits that in the light of the law laid down by the Division Bench and in order to ensure that the matter is not unduly protracted, the parties may be directed to appear before the District Magistrate before whom the respondent has already appeared.
This submission of the Counsel for the respondent deserves favourable consideration, as in my considered view, the District Magistrate has to pass appropriate orders in the light of the resistance made and obstruction raised by the petitioner for drawing the power lines.
In the course of arguments, learned Senior Counsel Mr. Uday Holla has submitted that the petitioner is prepared to bear the required expenditure if the respondent-Corporation takes a decision to change the alignment of the power line in order to ensure the smooth running of the educational institutions of the petitioner.
This is a matter to be examined by the District Magistrate and also the respondent-Corporation. Suffice to observe that if the interest of the petitioner can be protected without affecting the interest of the Corporation and the public interest, there is no reason why such an option should not be explored. The District Magistrate may make necessary endeavours in this regard, in accordance with law. In the light of the above, this writ petition is disposed of. Petitioner and the respondent are directed to appear before the District Magistrate on 25.04.2012 at 3.00 p.m. It will be open to the petitioner to place in writing before the District Magistrate its contentions in support of the obstruction raised. Similarly, respondent-Corporation will also be entitled to have its say in the matter. The District Magistrate, after providing a fair and reasonable opportunity to both the parties, shall pass appropriate orders in accordance with law, keeping in mind, the observations made herein above, as expeditiously as possible. in the light of the public interest involved in the matter. Until then, both the parties are directed to maintain status quo in respect of the properties in question.