M. Nithyanandham and Others vs The Chairman, Tamil Nadu Electricity Board and Others

A.R. Lakshmanan J.

By consent of both parties, he main writ petition itself is taken up for final hearing.

The prayer in the writ petition is to issue a writ of mandamus directing the Respondents to remove the high-rise towers that have been erected in Survey Nos. 279/3 and 288 of Modirambedu village, Sriperumbudur Taluk, Chengai M.G.R. District and also consequently forbear the Respondents from erecting the electricity lines in between the high-rise towers and/or energising the same.

The Petitioners are the owners and pattadars of certain agricultural lands in Modirambedu village, Sriperumbudur Taluk. Though they have been carrying on agricultural operations, they want to put their property to better use by plotting out the same and selling the property as plots and housesites after obtaining necessary sanction from the Madras Metropolitan Development Authority and other public authorities so that they will be in a position to get reasonable return from then-properties. The Petitioners now come to understand that the Tamil Nadu Electricity Board is installing electrical installations with a view to put up electricity lines running over their agricultural lands. Since the Petitioners are residents of Madras City and do not visit the village very often, they came to know of the action of the Electricity Board in erecting supporting pillars and towers with a view to put up electric lines running in their lands only now. In fact, the Electricity Board has erected constructions and is going ahead with installing high power pillars in the survey numbers in question and also going ahead with the plan to put up electric lines and energising the same.

According to Mr. A. Venkatesan, Learned Counsel for the Petitioners, fixing the electricity lines between the supporting towers and energising the same is an act of trespass in the private properties of the Petitioners and the same is an act of actionable nuisance besides being highly dangerous to the lives and limbs of persons entering into the properties as also the prospective buyers of their lands who may start to put up their own houses and live in the plots purchased by them. The Respondents have no right in law to do so without the consent and permission of the Petitioners. The Petitioners issued a lawyer''s notice dated 25-8-1993 requesting the Electricity Board to immediately remove all the erections and constructions made in their patta lands. Though they received the notice, the Respondents have not removed the high-rise towers so far. Since the Respondents are going ahead with their contemplated action of fixing the electricity lines to the high-rise towers and energise the same, the Petitioners have come before this Court with the prayer stated supra.

Along with the writ petition, the Petitioners have filed W.M.P. No. 28796 of 1993 for interim injunction. this Court on 7-10-1993 passed the following orders:

Heard Mr. A. Venkatesan. Two vital points have raised by the Learned Counsel for the Petitioners in support of the prayer for injunction. According to Mr. A. Venkatesan, the District Magistrate of the concerned district who sanctioned for laying the electricity lines and while making an order under Sub-section (2) shall fix the amount of compensation or of annual rent or of both, which should in his opinion be paid by the licensee to the owner or occupier. Secondly, it is contended that the Tamil Nadu Electricity Board has also not obtained any written sanction of the concerned District Magistrate which is mandatory in law. A prima facie case has been made out for the grant of interim injunction. Hence, there will be a interim injunction as prayed for restraining the Respondents from fixing the electricity wires in between the towers which had been installed in the Petitioners'' property in S.F. No. 279/3 and 288 of Modiratnbedu village and also energise the same pending further orders in the above application. Notice.

Respondents 1, 3 and 4 have filed W.M.P. No. 34048 of 1993 to vacate the interim injunction. According to the Electricity Board, they are empowered to enter into any private or public property to lay the transmission line in the interest of general public. As per Section 51 of the Indian Electricity Act (Central Act IX of 1910), 1010, the Board can exercise the powers u/s 10 to 19 and 19A of the Telegraphic Act, 1885, which was instructed by the Government, Public Works Department under G.O. Ms. No. 1455 dated 6-6-1961. It is further stated that in all sanctioned schemes, the Board has got power to enter into the vacant land for placing of any wires, poles, wall brackets, stays, apparatus and appliances for the transmission and distribution of electricity as per Section 42 of the Electricity (Supply) Act, 1948, As per that Act, certain powers in regard to entering into private lands have been vested with the Board. According to the provisions, the Board shall have all powers which the Telegraph authorities possess under Part III of the Indian Telegraph Act, 1885, with regard to the telegraph established or maintained by the Government in a sanctioned scheme. According to Section 10 and 11 of the Telegraph Act, the telegraph authorities are not only permitted to place and maintain the telegraph lines under, over, along or across and put posts in or upon any immovable property from time to time but also enter in the property in which the telegraph lines or posts have been placed. It is, therefore, contended that it is not obligatory on the part of the competent authority, who has been conferred the power of the telegraph authority u/s 10, to issue a prior notice to the owner on the property over which electricity supply line is proposed. Thus, in all sanctioned schemes, the Electricity Board has the power to enter upon private land for placing of poles, wires, etc. No damage is also caused due to erection of towers and no damage will occur while stringing of conductors in future and thus the payment of compensation does not arise. The transmission lines to be laid are in the interests of the public, which work has been completed in all locations except the Petitioners'' locations and the target date of 31-10-1993 could not be achieved due to the objection raised by the Petitioners. The Board has invested huge amounts for this project and due to the objection by the Petitioners, the Board has to incur further amounts in completing the work.

It is also beneficial to know about the features of the sanctioned scheme. The Electricity Board is constructing the Sriperumbudur Avadi 110 KV SC line along the Petitioners'' property. The length of the line is 29 KM. This project is a sanctioned scheme to a value of Rs. 192-30 lakhs in Permanent B.P.(FB) No. 167 dated 23-6-1992. This project was published in the Tamil Nadu Government Gazette and also in English and Tamil daily newspapers during June, 1992 and July, 1993, as required in Section 28(3) of the Electricity (Supply) Act, 1948, for general information of the public. The route of the transmission line has already been approved and this route is technically suitable and no alternate place was found feasible. The route sketch has also been furnished in the typed set. The Board has taken up the stub- setting (foundation) work during September, 1992, and the tower erection works were being done from January, 1993, onwards. The tower''s column foundation occupies the area 45 cm x 45 x 4 Nos. 2 (i.e., 1''6" x l''6"x 4 Nos. ) in the Petitioners'' agricultural lands. The remaining portion is free and the same can be used for agriculture purpose by the Petitioners. The Petitioners have not objected at the time of field survey and preliminary work. Under G.O. Ms. No. 1455 dated 6-6-1961, the Tamil Nadu Electricity Board is empowered with the powers of telegraph authority. Thus, it is contended by Mr. K. Ramamurthi, learned Senior Counsel appearing for the Electricity Board, that in all sanctioned schemes, the Electricity Board has power to enter upon private lands for inserting poles, etc.

The Petitioners filed a reply affidavit challenging the vires of Section 42 of the Electricity (Supply) Act, 1948, which, according to Mr. A. Venkatesan, Learned Counsel for the Petitioners, in effect deprives the valuable rights to own and possess priorities and to deal with in whatever manner the parties like. There is no guideline or provision either under the sections or under the rules directing the Electricity Board to get into possession of a private property without the knowledge and consent of the affected owner. Section 42 gives an unbridled and arbitrary power to the Electricity Board to take away the property of private owners even without notice, hearing objections and considering such objections of persons whose property is sought to be taken away, on their merits, for an alleged public purpose, above all, this section does not state anything about payment of compensation to the person who has been deprived of his valuable property while Section 12 of the Indian Electricity Act, 1910, provides for guidelinesior taking the property of a private owner. Even while taking away the property of a private owner, the said section provides for payment of just compensation and also annual rent. Further, the power of the Electricity Board to get into the property of a private individual is circumscribed by prior sanction of higher : ups like the District Magistrate in mofussil and the Commissioner of Police in the City of Madras, who are responsible officials, so that they will be in a position to weigh the pros and cons of the matter and could properly appreciate the loss or damage to which the owner of a property will be put to and grant or refuse to grant sanction on a correct and objective satisfaction of the legal provisions. Section 42 of the Electricity (Supply) Act, 1948, unfortunately takes away such vital safeguard. Section 48 of the Electricity (Supply) Act, 1948, is illegal and ultra vires the Constitution and is liable to be struck down as offending the Petitioners'' right to the property. There is no question of the action of the Electricity Board being legal or justified for the solitary reason that the scheme is a sanctioned scheme. Whether a scheme is a sanctioned one or not, if private person''s property is sought to be affected, the cardinal principles of equity fair-play and natural justice require that he should be heard before the matter is disposed of to his detriment. Section 51 of the Indian Electricity Act, 1910, which is relied on by the Electricity Board, contains arbitrary and unbriddled power and does not lay down any proper guidelines for the taking away of the private property of an individual.

I have carefully considered the arguments of Mr. A. Venkatesan and K. Ramamurthi for the respective parties. As stated above, the only contention raised by the Petitioners is that the Electricity Board has no right in law to erect high towers, fix the electricity lines between the supporting towers and energising the same, which is an act of trespass in the private properties of persons like the Petitioners, and is a clear act of trespass and actionable nuisance besides being highly dangerous to the lives and limbs of persons entering into the properties and also the prospective buyers of their lands and hence the Respondents have no right in law to do so without the consent and permission of the Petitioners. In support of this contention, Mr. A. Venkatesan, Learned Counsel for the Petitioners, has relied on Section 12 of the Indian Electricity Act, 1910 and Section 26 of the Electricity (Supply) Act, 1948.

Section 12 of the Indian Electricity Act runs as follows:

Provisions as to the opening and breaking up of streets, railways and tramways.- (1) Any licensee may, from time to time but subject always to the terms and conditions of his licence, within the area of supply, or, when permitted by the terms of his licence to lay down or piace electric supply lines without the area of supply, without that area-

a) open and break up the soil and pavement of any street, railway or tramway;

b) open and break up any sewer, drain or tunnel in or under any street, railway or tramway;

c) lay down and place electric supply lines and other works;

d) repair, alter or remove the same; and

e) do all other acts necessary for the due supply of energy.

(2) Nothing contained in Sub-section (1) shall be deemed to authorise or empower a licensee, without the consent of the local authority or of the owner or occupier concerned, as the case may be, to lay down or place any electric supply line, or other work in, through or against any building, or on, over or under any land not dedicated to public use whereon, wherever or whereunder any electric supply line or work has not already been lawfully laid down or placed by such licensee:

Provided that any support of an overhead line or any stay or strut required for the sole purpose of securing in position any support of an overhead line may be fixed on any building or having been so fixed, may be altered, notwithstanding the objection of the owner or occupier of such building or land, if the District Magistrate or, in a Presidency town the Commissioner of Police by order in writing so directs:

Provided also, that, if at any time the owner or occupier of any building or land on which any such support, stay or strut has been fixed shows sufficient cause, the District Magistrate or, in a Presidency town the Commissioner of Police may, by order in writing direct any such support, stay or strut to be removed or altered.

(3) When making an order under Sub-section (2), the District magistrate or the Commissioner of Police, as the case may be, shall fix the amount of compensation or of annual rent, or of both, which should, in his opinion be paid by the licensee to the owner or occupier.

(4)Every order made by a District Magistrate or a Commissioner of Police under Sub-section (2) shall be subject to revision by the State Government.

(5) Nothing contained in Sub-section (1) shall be deemed to authorise or empower any licensee to open or break up any street not repairable by the Central Government or the State Government or a local authority, or any railway or tramway, except such streets, railways or tramways, if any, or such parts thereof, as he is specially authorised to break up by his licence, without the written consent of the person by whom the street is repairable or of the person for the time being entitled to work the railway or tramway, unless with the written consent of the State Government:

Provided that the State Government shall not give any such consent as aforesaid, until the licensee has given notice by advertisement or otherwise as the State Government may direct, and within Such period as the State Government may fix in this behalf, to the person above referred to, and until all representations or objections received in accordance with the notice have been considered by the Sate Government.

(6) In this section, ''occupier'' of any building or land means a person in lawful occupation of that building or land.

Section 26 of the Electricity (Supply) Act, 1948, runs as follows:

Board to have powers and obligations of licensee under Act IX of 1910, - subject to the provisions of this Act, the Board shall, in respect of the whole State, have all the powers and obligations of a licensee under the Indian Electricity Act, 1910 (9 of 1910), and this Act shall be deemed to be the licence of the Board for the purposes of that Act:

Provided that nothing in Sections 3 to 11, Sub-sections (2) and (3) of Section 21 and Section 22, Sub-section (2) of Section 22-A and Sections 23 and 27 of that Act or in Clause I to V, Clause VII and Clauses DC to XII of the Schedule to the Act relating to the duties and obligations of a licensee shall apply to the Board:

Provided further that the provisions of Clause VI of the Schedule to that Act shall apply to the Board in respect of that area only where distribution mains have been laid by the Board and the supply of energy through any of them has commenced.

According to Mr. A. Venkatesan, Learned Counsel for the Petitioners, under the relevant provisions of Indian Electricity Act and u/s 26 of he Electricity (Supply) Act, 1948, the Electricity Board has absolutely no power to lay down and place electric supply lines and other works and do all other acts which are necessary for the due supply of energy, without the consent of the owners. The Electricity Board has absolutely no power to lay down and place electric supply lines and other works and do all other acts which are necessary for the due supply of energy without the consent of the owners concerned. If it is necessary for the Electricity Board to enter into the property of a private owners like the Petitioners, the Board has to first give them notice calling for their objections, if any, and consider the same. Even if their objections, are not acceptable to the Electricity Board, it has no unilateral power to put up erection without an order in writing by the District Magistrate concerned. No notice whatsoever was given to the Petitioners before the Board purported to enter into their lands with a view to erect constructions, high-rise tower, etc. According to Mr. A. Venkatesan, the Electricity Board has also not obtained any written sanction of the concerned District Magistrate, which is mandatory in law. Under the provisions, the concerned District Magistrate has to fix the compensation, annual rent, etc. The conduct of the Electricity Board not only amounts to illegal act of trespass but also amounts to deprivation of the Petitioners'' property, without paying the compensation and annual rent, which is mandatorily required u/s 12 of the Act.

Mr. A. Venkatesan placed very strong reliance on the judgment of this Court reported in South Madras Electric Supply Corporation, Ltd. Vs. T.L. Jagannatha Aiyar and Others, . That case arose under a civil dispute. The'' provision of Section 12 of the Electricity Act IX of 1910 came up for consideration. The suit was filed by the parties for removal of the posts supporting the high tension electrical lines fixed without the permission of the owner. The District Munsif, Manamadurai dismissed the suit holding that the Civil Court had no jurisdiction and that the suit was barred by the provisions of the Indian Electricity Act and the Indian Telegraph Act. He also made a reference to Section 16 and 17 of the Indian Telegraph Act, which authorised the District and Sessions Judge to fix damages. The Plaintiff took up the matter on appeal before the Subordinate Judge, Sivaganga. The learned Subordinate Judge has come to the contrary conclusion and held that the suit was triable by a Civil Court and that the Civil Court had ample power to try the case of this type. He, therefore, allowed the appeal and set aside the decree of the lower court and remanded the suit for fresh disposal in the light of his observations.

Aggrieved by the reversal, Defendants 1 and 2 preferred appeals before this Court. Mr. K. Parasaran, learned Senior Advocate appeared on behalf of the 1st Defendant and contended that the learned subordinate Judge was wrong in holding that the suit was maintainable in the Civil Court. Basheer Ahmed Sayeed, J., did not agree with the contention of Mr. K. Parasaran that the suit was not maintainable. While dealing with the arguments on Section 12 of the Act, the learned Judge has observed as follows:

If Section 12 is carefully considered it will be seen that the first Sub-section of that Section does not at all apply to the facts of the present case. That Sub-section provides that a licensee may open, and break up the soil and pavement of any street, railway or tramway. Obviously, the Plaintiff is not having any street, railway or tramway. It is his own private land on which he has grown the coconut tope. Even so, Sub-clauses (b),(c), (d) and (e) of Sub-section (1) do not have any bearing on the facts of the present case. It is only Sub-section (2) of Section 12 that has been largely relied upon by the Learned Counsel for the 1st Defendant and also by the learned Govt. Pleader. Sub-section (2) of Section 12 is to the effect that nothing contained in Sub-section (1) shall be deemed to authorise or empower a licensee, without the consent of the local authority or of the owner and occupier concerned as the case may be, to lay down or place any electric supply line or other work in, through or against any building, or on, over or under any land not dedicated to public use whereon, wherever or whereunder any electric supply line or work has not already been lawfully laid down or placed by such licensee. This Sub-section clearly excludes the authority or the power of the licensee to do anything on any person''s land without his consent, either it be the local authority or the private owner or occupier concerned....

The supply of electric energy to institutions, companies or individuals stands on quite a different footing from the establishment of means of communications such as telegraph lines or the telephone lines. No question of urgency has been pleaded by the Learned Counsel for the 1st Defendant in carrying the high tension lines on properties belonging to private individuals or local authorities. It cannot be said from the language employed in Section 12 that the rights of parties may be violated in view of the urgency of the high tension lines being carried through another man''s property. On the other hand, Sub-section (2) of Section 12 clearly lays down that the licensee is not authorised to carry high tension lines or lay down these lines either on the land or above the land of any private individual or any local authority without his consent and Section 12 does not authorise him to do so. The Defendant therefore cannot rely upon the analogy of the power vested in the Telegraphic Act to carry telegraphic or telephone lines on properties belonging to private owners. Reliance in this connection has been placed upon Section 51 of the Electricity Act which enables the State Government to confer upon the licensee power for the placing of appliances and apparatus for the transmission of energy, subject to such conditions and restrictions as the State Government may think fit to impose and subject to the provisions of the Indian Telegraphic Act 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. But this Section again is not of any great assistance to the Learned Counsel for the Defendants. The power that is sought to be conferred by the State Government under this is subject to the many limitations and restrictions contained in this Section, the most important restriction being that the power could be only for the placing of appliances and apparatus for transmission of energy, and not for the purpose of carrying high tension lines on any man''s property, whereby considerable damage and hindrance is caused to the proper enjoyment of the land. As has been pointed out by the Learned Counsel for the Plaintiff-Respondent the danger that would ensue by the telegraphic or telephonic line is by no means on a par with the danger from high tension lines for the supply of electric energy; and as could be noticed, lines for the telegraphic and telephonic communications are meagre and fewer whereas the lines for carrying the high tension lines for eiectric energy either for domestic or industrial purposes are far too many and they are always likely to cause danger to any person if carelessly handled.

While dismissing the appeals, the learned Judge held that the Civil Court has ample jurisdiction to try the suit.

Mr. K. Ramamurthi, learned Senior Counsel for the Electricity Board, in reply to the contention of the Learned Counsel for the Petitioners and in support of the contention of the Electricity Board, has invited my attention to various provisions of the Act and also to a few decisions, which, according to him, make the position very clear. The decisions relied on are reported in Bharat Plywood and Timber Products Private Ltd. Vs. Kerala State Electricity Board Trivandrum and Others, ; Deva Raj Vs. U.P. State Electricity Board, Lucknow and Others, ; Mis. The Scindia Potteries Pvt. Ltd. v. Purolator India Ltd. AIR 1980 Del 147; Binapani Basu Vs. Union of India (UOI) and Others, ; Rajak and Others Vs. National Thermal Power Corporation Ltd., Indore and Another, and the decision of mine in C. Venkateswara Rao v. The Superintending Engineer W.P. No. 12629 of 1993 dated 26-11-1993.

As stated supra, the question posed by he Petitioners is, whether the Electricity Board can put up high tension tower in a private land without prior notice to the owner of the land on which it is put up. The Petitioners rely upon Section 42 of the Electricity (Supply) Act, 1948, which runs as follows:

42 Power to Board for placing wires, poles, etc,-(1) Notwithstanding anything contained in Section 12 to 16 and 18 and 19 of the Indian Electricity Act, 1910 (DC of 1910), but without prejudice to the requirements of Section 7 of that Act where provision in such behalf is made in a sanctioned scheme, the Board shall have, for the placing of any wires, poles, wall-brackets, stays, apparatus and appliances for the transmission 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 (XIII of 1885), with regard to a telegraph established or maintained by the Government or to be so established or maintained:

Provided that where a sanctioned scheme does not make such provision as aforesaid all the provisions of Sections 12 to 19 of the first mentioned Act shall apply to the works of the Board.

(2) A generating company may, for the placing of wires, poles, wall-brackets, stays apparatus and appliances for the transmission of electricity or for the transmission of telegraphic or telephonic communications necessary for the proper co-ordination 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.

Mr. K. Ramamurthi, learned Senior Counsel appearing for the Electricity Board, first drew my attention to a Full Bench decision of the Kerala High Court reported in Bharat Plywood and Timber Products Private Ltd. Vs. Kerala State Electricity Board Trivandrum and Others, wherein in paragraph 28, the Full Bench observed as follows:

One other subject which came up for discussion was the question whether a notice should be issued by the public officer, licensee or other person chosen by the state Government u/s 51 of the Electricity Act for the conferment of powers under the Telegraph Act to the owner or occupier or other person in the control or management of the property over which the electric supply line is proposed to be placed intimating the intention of the authority to place supply lines over the property. Isaac, J., has held in his judgment in O.P. No. 1454 of 1967 (Kerala) that a notice should be given in order to satisfy the requirements of natural justice and also because unless a notice is given ''the owner of the land will not be in a position to know under what authority action is being taken.'' There may be yet another reason in favour of the contention that notice should be given normally, that unless the owner or occupier is informed of the exact nature of the proposal for laying the electric supply line he will not be in a position to decide whether the exercise of the power should be resisted or obstructed. Even so, we do not think that in the light of the provision in Section 16(l) of the Telegraph Act under which the District Magistrate has been given the power to decide whether an order should be passed that the authority should be permitted to exercise the power, a prior notice to the owner or occupier is necessary. The whole procedure under the scheme of the provisions in Part III of the Telegraph Act seems to be different. As the provisions stand, we do not think that it is obligatory on the part of the competent authority to issue a prior notice before exercising the power u/s 10 of the Telegraph Act. Before passing an order u/s 16(l) 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 he will not have any material, at any rate, adequate material to decide whether he should pass an order that the authority shall be permitted.

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 he is so informed, the exact location and the alignment of the line can be settled without resistance or obstruction by mutual understanding. However, that be, as we understand the provisions in the Telegraph Act, Part III, we do not consider it necessary that there should be prior notice.

Mr. K. Ramamurthi, learned Senior Counsel then relied on the decision of a Division Bench of the Allahabad High Court reported in Deva Raj Vs. U.P. State Electricity Board, Lucknow and Others, , wherein it has been held as follows:

By virtue of the notification issued u/s 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 u/s 51 of the Act of 1910 read with Section 10 of 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...

The learned Senior Counsel appearing for the Electricity Board thirdly relied on the decision reported in M/S. The Scindia Potteries Pvt. Ltd., v. Purolator India Ltd. AIR 1980 Del 157, which arose under the Telegraph Act, 1885. Prakash Narain, J., speaking for the Bench observed as follows:

The first contention for the Appellant is that the telephone posts and telegraph lines were initially installed by the telegraph authority in violation of the provisions of Section 16(1) of the Act. Therefore, it was not a valid exercise of the power conferred by Section 10. In our opinion, the argument has no force. The exercise of power u/s 10 is not conditional on compliance with the provisions of Section 16(1) of the Act. The power given u/s 10 is absolute. It is only when there is a resistance or obstruction in the exercise of that power that the occasion to approach the District Magistrate arises. If there is no resistance or obstruction there is no occasion for the telegraph authority to approach the District Magistrate....

The next contention on behalf of the Appellants was the Section 10 does not authorise reenergising a telephone. Here again, in our view, the interpretation placed by the Appellants on this Section is incorrect. Section 10 and 11 are complementary to each other and have to be read together. Section 10 authorises exercise of the power from time to time. In exercise of that power it is but requisite that authority should be given to enter the property where the lines or posts are situate to ensure that the power coupled with the obligation postulated by Section 10 is not made illusory. To maintain a telegraph line, as enjoined by Section 10, it would be necessary to examine, repair, alter or remove it from time to time. Substituting wiring or poles not only with the purpose of maintaining an efficient telegraph line but also to keep pace with improved technology is something which is inherent in the exercise of power u/s 10 and 11. As we have said, Section 10 not only gives a power but imposes a duty on the Central Government/Telegraph Authority. If that be so, reenergising or reconnecting disconnected telephones or teleprinter line would be a valid exercise of power both u/s 10 and Section 11 of the Act. By no stretch of imagination can be said that once the power postulated by Section 10 has been exercised, it could never be exercised again in, upon or over the same property. It would not make sense. It is correct that every time a new line is put up or a new connection is energised, the power u/s 10 is exercised. This power may be exercised unless there is resistance or obstruction. Writing a letter of the kind written by the Appellant cannot be regarded as resistance or obstruction as no law and order situation as contemplated by Section 188, I.P.C. arises in such a case....

Mr. K. Ramamurthi then relied on the decision reported in Binapani Basu Vs. Union of India (UOI) and Others, wherein the Division Bench in paragraph 8 observed as follows:

On the terms of Section 16(3), the dispute must necessarily relate to compensation payable u/s 10(d). It is now well settled that a total denial of liability comes within the scope of a dispute as to sufficiency. The point for consideration is whether the compensation contemplated by Section 10(d) is limited only for the acts done in exercise of powers u/s 10 or for damages of any kind suffered in course of execution of such an act. On a careful review of aforesaid two provisions, we are unable to support the limited interpretation adopted by the learned District Judge. Section 10, no doubt, gives legal sanction for committing trespass which the telegraph authorities would not have been entitled to commit but for such sanction. Such trespass again may result in some damages. But Clause (d) of Section 10 does not limit the compensation to such damage only. It speaks of any damage sustained by reason of exercise of such powers. The legislature intentionally rendered the scope wider to include compensation for any damages sustained either by the act authorised or in course of its execution. This clause clearly indicates that in doing any act within the sanction of Section 10 the telegraph authority must take the caution of causing as little damage as possible. The provision goes further on to say that when such an act is done, the authorities shall pay full compensation for any damage sustained by reason of exercise of such powers. Such damage, in our view, covers not only the damage for the trespass itself but any damage that may be sustained due to any tortious action on the part of the telegraph authorities while exercising their powers u/s 10. The tortious act is not an independent act; it arises from negligent exercise of powers u/s 10 involving the immovable property in respect of which such power is being exercised. In our considered opinion, there is no reason to limit the meaning of the term ''any damage'' to damages because of the trespass only and not because of the neglect or the tortious act of the authorities while exercising powers u/s 10.

Mr. K. Ramamurthi, learned Senior Counsel appearing for the Electricity Board also relied on the decision of the Indore Bench of Madhya Pradesh High Court reported in Rajak and Others Vs. National Thermal Power Corporation Ltd., Indore and Another, , wherein in paragraphs 14 and 15 it has been held as follows;

In the instant case, execution of the work of placing overhead transmission line and the erection of towers therefor is being carried out in accordance with a duly sanctioned scheme of the Generating Company NIPC which has all the powers for placing such wires and other appliances for transmission of electricity in terms of Section 42 of the Act which the Telegraph Authority possesses under Part III of the Indian Telegraph Act, 1885 in respect of a telegraph established or maintained notwithstanding the provisions of Section 12 to 16, 18 and 19 of the Indian Electricity Act, 1910, as per notification of the scheme published u/s 28(3) of the Act (Annexure -IV).

In view of the power vested in the Generating Company NTPC u/s 42 of the Act read with Part III of the Indian Telegraph Act, there can be no valid objection by the Petitioners to the implementation of the sanctioned theme either on the principles of natural justice or on the ground of unauthorised user of Petitioners'' land in respect of which compensation has been provided for under proviso (d) to Section 10 of the Indian Telegraph Act.

Lastly, Mr. K. Ramamurthi relied on the decision rendered by me in W.P. No. 12629 of 1993 dated 26-11-1993, wherein in paragraphs 4 and 51 have observed as under:

In answering to paragraph 3 of the affidavit of the Petitioner, it is stated in paragraph 3 of the counter affidavit that the already erected 230 KV transmission line runs to Sriperumbudur from North Madras Thermal Power Project and therefore, the line takes a different route away from the taction about which the Petitioner is aggrieved. It is further seen that the 230 KV transmission line under execution runs to Thiruvalam Sub Station from North Madras Thermal Power Project. The foundation work at 165 locations out of 166 locations running to a distance of 40 K Ms have been completed at a cost of rupees two crores and only location No. 48, which falls in the Petitioner''s land, remains without a foundation for the purpose of erecting the tower because of the interim orders passed by this Court. Because of the new scheme, various industries and other public utility services like Railways, Water Pumping Station, Agriculturists, etc., will be benefited.

As rightly pointed out by the Learned Counsel for the Respondents, the Petitioner has not raised any objection within the time stipulated pursuant to the notification issued in the newspapers. The area covered by the foundation in location No. 48, which falls on the land of the Petitioner, is one square metre covering four legs. Therefore, the area covered by the foundation is negligible. There could be no difficulty for the Petitioner to have cultivation of his lands beneath the tower as well without any loss for the reason that the distance between one leg and the other leg of the tower is 4.70 metres and the height above the ground level is about 30 metres. Therefore, in my opinion, the grounds alleged by the Petitioner in the affidavit and also as argued by his counsel, do not merit any cred-ance or acceptance by this Court. The balance of convenience is also only in favour of the Respondents/Electricity Board. As already stated, the scheme is for the benefit of various industries and other public sector undertakings.

The Petitioners rely upon Section 12 of the Electricity Act, 1910. This statute is an enactment prior to the Independence. The supply of energy was entrusted to licensees under that Act. Section 51 of the Electricity Act runs as follows:

Notwithstanding 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 appliances and apparatus for the transmission of energy confer upon any public officer or licensee, subject to such conditions, 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.

This provision empowers the State Government to confer power upon any public officer or licensees to have powers which the telegraph authority may possess. The Section starts with non-obstante clause.

The Parliament, after Independence, enacted the Electricity (Supply) Act, 1948. So far as the State of Tamil Nadu is concerned, Section 42 came into effect from 10-9-1948. Other provisions of the Act came into force with effect from 1-7-1957. It was only on that date the Electricity Board was constituted. Having regard to the fact that the entire supply of energy throughout the State of Tamil Nadu for industrial and domestic purposes was entrusted to the Electricity Board, it became necessary to confer powers on the Electricity Board to make arrangements for the supply of energy throughout the length and breadth of Tamil Nadu.

Section 42 of the Electricity (Supply) Act, 1948, extracted above, and other provisions of the Act confer power on the Electricity Board which the telegraph authorities possess under part III of the Indian Telegraph Act. Section 10 of the Indian Telegraphs Act reads as follows:

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 these powers in respect of my 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.

The above section, in my opinion, gives authority for placing the poles or the towers in a private land and Clause (d) referred to above provides for payment of compensation. Section 16(1) provides for the Board approaching the District Magistrate in case of resistance by the owner. Section 16(3) provides for the mode for fixing the compensation in case of dispute regarding the sufficiency of the compensation.

In the light of the non-obstante clause in Section 42, excluding in categoric terms the applicability of Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910, in any considered opinion, it is not open to the Petitioners to rely on Section 12 of the Indian Electricity Act, 1910. As stated above, the Petitioners strongly relied on the decision reported in South Madras Electric Supply Corporation, Ltd. Vs. T.L. Jagannatha Aiyar and Others, . In that case, Ba-sheer Abmed Sayeed, J., was pleased to deal only with the scope of Section 12. The scope of Section 42 was apparently not brought to the notice of the learned Judge. Therefore, the Petitioners herein cannot call in aid the said decision.

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 Section 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.

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.

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 lotation 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 previsions 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 Bharat Plywood and Timber Products Private Ltd. Vs. Kerala State Electricity Board Trivandrum and Others, .

However, as rightly pointed out by a Division Bench of the Allahabad High Court in the decision reported in AIR 1977 452 cited supra, The only right persons like the Petitioners herein have left now is to obtain compensation from the authorities concerned. Learned Counsel for both the parties have not placed before me any procedure under which the compensation shall be determined. Mr. A. Venkatesan, Learned Counsel for the Petitioners, in the concluding part of his arguments has stated that the Petitioners shall be entitled to compensation at the market value for the extent of land occupied by the Electricity Board and also compensation for severance of other portions of land, which becomes useless. Therefore he prays that this Court may direct Payment of compensation by the Electricity Board to the Petitioners.

The above argument of Mr. A. Venkatesan merits acceptance. Even though no prior notice was given to the Petitioners, it cannot be disputed that persons like the Petitioners will certainly be entitled to compensation under the provisions of the Act and Rules on the market value of the property on the date of erection of poles and other apparatus in the lands of the Petitioners. Mr. K. Ramamurthi, learned Senior Counsel for the Electricity Board has also fairly conceded at the time of hearing that the Petitioners have a right to obtain compensation for the loss they have suffered, therefore, I direct the Electricity Board that on receipt of application form the Petitioners for payment of compensation, fix the amount of compensation payable to them on the basis of the market value prevalent on the date of erection of poles. In my opinion, a duty is cast on the Electricity Board to decide the compensation payable to the Petitioners for the loss suffered by them. Therefore, I direct the Electricity Board to decide the compensation amount payable to the Petitioners within three months from the date of receipt of application from them.

Mr. A. Venkatesan, Learned Counsel for the Petitioners, then contends that if the high tension power supply is allowed to pass through the lands of the Petitioners, the authorities like the Madras Metropolitan Development Authority and other municipal, local and public authorities will not issue any planning permission for construction of houses, etc., on the remaining lands. Now that the Electricity Board is given permission to take the high power tension line through the lands of the Petitioners in the interests of public, the Madras Metropolitan Development Authority and other municipal and public authorities are directed to consider the applications, if any filed by the Petitioners for planning permission, etc., and sanction the same as per rules except on the ground of passing of the high tension power line, which, in my opinion, cannot be a ground for rejection of such permission since the Petitioners have also now agreed to permit the Electricity Board to take the electricity high power tension line through their lands.

For the following reasons, the writ petition is disposed of accordingly. However, there will be no order as to costs.