Shashi Sharma and Others vs Power Grid Corporation and Others

Umesh Chandra Dhyani, J.—By means of present writ petition, the petitioners seek a writ, order or direction in the nature of mandamus restraining the respondent no.1 from illegally and forcibly erecting towers for laying transmission line on petitioners'' land and in the alternative, a writ, order or direction in the nature of mandamus be issued directing the respondents to proceed with erection of towers only after acquisition of land and after payment of compensation of their loss and after payment of further compensation for the land which will be affected by the restrictions which will come alongwith alignment of transmission of line.

Shorn of unnecessary details, the rival contentions on the point of law and their replies are being discussed and given hereinbelow for the sake of brevity. There is no dispute, between the parties, as regard the factual aspects of the case.

The first question, which arises for consideration is - whether the writ petition is maintainable or not? This Court is of the opinion that the writ petition is maintainable, inasmuch as, the Power Grid Corporation of India Ltd. (hereinafter referred to as PGCI) is an instrumentality of the Central Government.

The second question, which crops up for consideration is - whether the PGCI can acquire any right ''other than that of user only'' in the property in question? The reply would be ''yes''. Since the PGCI is an instrumentality of the Central Government, therefore, it cannot acquire any right other than that of user in respect of the property in view of the sub-clause (b) of proviso to Section 10 of the Indian Telegraph Act, 1885 (hereinafter referred to as the Act of 1885). It cannot, therefore, be argued that the PGCI cannot acquire the right of user.

The third question, which arises for consideration is whether, sub-clause (c) of proviso to Section 10 of the Act of 1885 is applicable to the present case? The reply would be in negative, inasmuch as, the same relates to local authority. The property in question is not vested or under the control or management of any local authority. Hence, the permission of that authority is not required.

The next question, which comes for consideration is - whether the land would be required to be acquired by PGCI before erecting towers on the same or not? The law on the point envisages that the Central Government shall not acquire any right other than that of user only and, therefore, the land would not be acquired, as is normally done by the Central or the State Government in other cases, in which the whole land is used. In the instant case, since the Central Government does not acquire any right other than that of user, therefore, the compensation of the land is not given, but, yes sub-clause (d) of proviso to Section 10 of the Act of 1885 envisages that the said authority shall do as little damage as possible and shall pay full compensation to all persons interested for any damages sustained by them by reason of the exercises of those powers. The Hon''ble High Court of Himachal Pradesh in Power Grid Corporation of India Limited vs. Basant Singh and others had an occasion to decide one such matter on 21.05.2010 in LPA no.204 of 2007. It will be apt to reproduce para 4, 6 and 7 of the said judgment hereinbelow for reference:

"4. Having analysed the legal position as above, and on going through the factual position in the present case, we find that the learned District Judge has misdirected himself in granting the land value itself by way of compensation by comparing the value of the property in the vicinity. That method is to be adopted, only when the court exercises its power under section 18 of the Land Acquisition Act, 1894 for the purpose of deciding land value in a case duly referred to the Court after acquisition of the property. The power that is exercised under section 16(3) of the Indian Telegraph Act is not akin to the power exercised by the Reference Court under the Land Acquisition Act, 1894.

Therefore, certainly the order calls for interference in principle.

We find that the learned single Judge apparently taking note of the amount being only Rs. 24,000/- was not inclined to go into the legal question and on facts it was apparently held that it is sufficient compensation.

In view of the factual position as above, we decline to interfere with the amount already granted to the party towards compensation. However, the law has to be made clear that the District Judge in exercise of the power under section 16(3) of the Indian Telegraph Act shall not grant compensation akin to the land value that is fixed by the Reference Court under the Land Acquisition Act, 1894. Only to the extent of injury suffered by drawing, the line or placing a tower, the owner shall be proportionality compensated."

(Emphasis supplied)

Section 164 of the Electricity Act, 2003 empowers the appropriate Government to confer any Public Officer or any other person engaged in the business of supplying electricity with respect to 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 coordination of works. Restrictions and conditions may be imposed as per the provisions of the Indian Telegraph Act, 1885.

The Power Grid Corporation is a Government company. A notification has been brought to the notice of this Court that the Central Government has empowered the PGCI to do so. The writ petitioners have not disputed such power of PGCI.

In response to a query raised by this Court, regarding compensation, learned Senior counsel for the PGCI submitted that the PGCI has not yet paid full compensation to the petitioners interested for any damage sustained by them, inasmuch as, the same has not yet been assessed or quantified. Such compensation shall be paid to the petitioners after assessment, only when the work is carried out. The PGCI shall be able to quantify the same only when the towers are erected. The same will be done as per sub-clause (d) of proviso to Section 10 of the Act of 1885.

What happens when a dispute arises concerning sufficiency of compensation to be paid? Section 10(d) and Section 16(3) of the Indian Telegraph Act, 1985 provides as follows:

"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) ....................

(b) ....................

(c) ......................

(d) in the exercise of the powers conferred by this section, the telegraph authority shall do as little damage as possible, and, when it has exercised those powers in respect of any 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."

Exercise of powers conferred by section 10, and disputes as to compensation, in case of property other than that of a local authority.-

(1) .............................

(2) ............................

(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 be District Judge within whose jurisdiction the property is situate, be determined by him.

(Emphasis supplied)

It will again be apt to reproduce para 3 of the judgment rendered by Hon''ble Himachal Pradesh High Court, in Basant Singh''s case (supra), as follows:

"3. Under section 10(d) of the Indian Telegraph Act, 1885 what is contemplated is the compensation for the damage caused to a property by drawing an electric/telegraph line or placing a tower. It is not the compensation as understood under the Land Acquisition Act where the land itself is acquired. Once the land is acquired, the party from whom land is acquired ceases to be owner of the property and ownership, title and possession, after acquisition vests in the acquisitioning/requisitioning authority. As far as the exercise of power for drawing of telegraph line or placing a tower etc is concerned, the party is never divested of its ownership or title or possession. It is only a permissive use which is given a statutorily status. In the process, no doubt, the owner might suffer some injury. That injury is to be compensated in terms of the extent of injury like the adverse impact on the prospects of income for use of the property. It can never be land value as such since, as we have already stated above, the owner is never divested of his title, ownership or possession. But at the same time injury certainly could be there. Under section 10(d) or in exercise of power under section 16(3) the question only shall be as to what is the extent of injury to the property over which line is drawn or tower is placed, to be compensated in terms of money and nothing more."

(Emphasis supplied)

In response to a further query made by this Court, as to how the land on which the towers are erected are identified by the PGCI, learned senior counsel for the PGCI replied that the same is done on the basis of Global Positioning System (GPS).

Learned counsel for the petitioners then placed reliance upon the decision of Hon''ble Apex Court in Orissa Power Transmission Corporation Limited and Others Vs. Asian School of Business Management Trust and Others, . In the humble opinion of this Court, the facts of the instant case are different from the facts of Orissa Power Transmission Corporation''s case (supra), which dealt with Electricity (Supply) Act, 1948. In that case, the transmission scheme was notified in the year 1991 and was modified in the year 1996. Respondent no.1 (Asian School) had no locus to seek mandamus for realignment of the route. The transmission towers were sought to be shifted. Almost 150 towers had already been erected by the appellants (Orissa Power Transmission Corporation) of such case by spending more than Rs.14 crores. Inability of the appellants to change the alignment of the route and shifting the transmission towers was germane to the controversy in Orissa Power Transmission Corporation''s case. Here the facts are totally different. Although, the ground work has literally been done, but the towers have not been erected on the land of the petitioners as yet. In Orissa Power Transmission Corporation''s case (supra), the Hon''ble Apex Court held that there was no justification to direct re-routing of the transmission line on the ground of non-compliance with the two provisions of Electricity (Supply) Act, 1948.

Learned senior counsel for the petitioners then referred to the judgment of this Court in Writ Petition (M/S) no.2475/2013 Suresh Kumar Saini vs. Power Grid Corporation of India rendered on 04.12.2013 in which learned Single Judge of this Court relied upon the decision of the Division Bench of Hon''ble Allahabad High Court in Civil Misc. Writ Petition no.39173 of 2011 Jagir Lal and another vs. State of U.P. and others decided on 02.09.2011, wherein Hon''ble Allahabad High Court has held as under:

"1. There is no requirement of obtaining any consent of owner before laying a transmission line by an authority exercising power under Section 164 of the Electricity Act, 2003.

When owner of the property from where the transmission line is to be drawn obstructs or resists laying down of a line, it is open both for the owner as well as to the authority to approach the District Magistrate for appropriate orders and the District Magistrate in his discretion may permit the laying of the line or refuse such permission.

The owner from whose line the electric line is drawn, is entitled for compensation from the authority and in the event he is dissatisfied with the amount of compensation, his remedy is to make an application before the District Judge under Section 16 sub-section (3)."

The above noted judgment was passed on a different footing. Here, the owners of the property where the transmission line is to be drawn do not appear to obstruct or resist in laying down of a line and, therefore, there is no question of the owners and PGCI to approach the District Magistrate for appropriate orders. It is, however, open for the District Magistrate to act according to law, if he is approached by the parties concerned. Further, it is true that the petitioners are entitled to compensation for any damage sustained by them by reason of PGCI exercising power under Section 10 of the Act of 1885 and, in case of dissatisfaction, a recourse is available to them under Section 16(3) of the Act of 1885.

The PGCI is a Public Sector Undertakings and therefore right to user only can be acquired by it in terms of sub-clause (b) of proviso to Section 10 of the Act of 1885. Such law was also discussed by the Division Bench of Hon''ble Allahabad High Court in Power Grid Corporation of India Limited Vs. Ajay Kumar Gupta and Others, , wherein it was held that the purpose of the Power Grid Corporation is to set up national infrastructure for distribution of electricity. The PGCI has been empowered under Section 164 of the Electricity Act, 2003 to exercise powers of telegraph authorities, including the power under Section 10 of the Act of 1985 to erect towers on any immovable property and to lay overhead electric lines over the same. The Power Grid Corporation does not require any permission of District Magistrate for that purpose and the plaintiffs were therefore not held not entitled to temporary injunction.

In Bharat Plywood and Timber Products Private Ltd. Vs. Kerala State Electricity Board Trivandrum and Others, , the Hon''ble Kerala High Court had an occasion to look into the validity of Section 51 of the Electricity Act, 1910 and Section 10 of the Telegraph Act. It was held that the conferment of the right to the user of the land is reasonable and is in the interest of general public even on the touch stone of Article 19(1)(f) of the Constitution of India. Sub-Section (1) of Section 16 of the Telegraph Act, 1885 will come into play, when the power under Section 10 is resisted or obstructed. Only then the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them.

Learned counsel for the petitioners thereafter referred to the judgment of Hon''ble Karnataka High Court rendered in Thirthesh A.S. Vs. Under Secretary to the Government of Karnataka, Department of Power Corporation and Others, , in which Hon''ble Karnataka High Court was in agreement to the views of the Full Bench of Hon''ble Kerala High Court, wherein it was held:

"Before passing an order under Section 16(1) the District Magistrate has necessarily to issue notice to all persons interested and give them an opportunity to state their objections, if any. Without giving such an opportunity 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." 19. In the instant case, neither the Power Grid Corporation nor the petitioners have yet reached at the stage of Section 16 of the Act of 1885.

Lastly, it is contended by learned counsel for the petitioners that the PGCI is digging the land of the petitioners and is bisecting their land in two parts and the corridor of 30 metres is created by them. It has already been made clear above that the PGCI is bound to pay full compensation to all persons interested for any damage sustained by them. How that compensation will be determined, has been dealt with by Hon''ble Himachal Pradesh in Basant Singh''s case (supra). It appears that there is lot of confusion about the applicability of various provisions of the Indian Telegraph Act, 1885. The scheme of law is very clear. The PGCI acquires the right of user only in the property under, over, along, across, in, or upon the transmission lines are placed or posted. The PGCI shall do as little damage as possible and shall pay full compensation to all persons interested for any damage sustained by the petitioners by reason of exercising such powers. The power under Section 16(3) of the Act of 1885 is not akin to the power exercised by the reference court under the Land Acquisition Act. If the exercise of such power under Section 10 of the Act of 1885 is resisted or obstructed, the District Magistrate may, in his discretion, order that the respondent authority shall be permitted to exercise them. Section 17 will come into play only after a transmission line or post has been placed and if any person desires to deal with the property in such a manner that the transmission line should be removed to another part or to a higher or lower level or for the alteration of its form. The District Magistrate has again been empowered under sub-Sections (2) and (3) of Section 17 of the Act of 1885. Such right is always available to the petitioners but only after the transmission line or post has been placed by the telegraph authority. There is no doubt about the scheme of law, but the problems arise only when they are not correctly interpreted.

To sum up, the factual aspects of the controversy in hand are not in dispute. It is also not disputed that the transmission lines are being erected by the PGCI over the land of the petitioners. It is also under no dispute that by using such land by the PGCI, the market value of the land of the petitioners will be diminished. The law clearly spells out that the petitioners are entitled to compensation in terms of sub-clause (d) of proviso to Section 10 of the Act of 1885. Such compensation shall be quantified by the PGCI only when the work of erection of towers is complete. The power, which is exercised under Section 16(3) of the Act of 1885, is not akin to the power exercised by the reference court under the Land Acquisition Act. The petitioners have prayed for restraining the PGCI from forcibly erecting towers for laying transmission lines on their land. The law on the subject envisages that the PGCI cannot be restrained from doing so, even if it be conceded for the sake of arguments that the Act of 1885 is a Colonial Enactment and this pre-constitutional Legislation of colonial vintage is a drastic law. So far as the prayer in the alternative is concerned, the land of the petitioners is not required to be acquired by the PGCI for the purpose of laying transmission lines. The PGCI is not required to acquire any right other than that of user only in the property under, over, along, across, in or upon which the PGCI places any transmission line, in terms of sub-clause (b) of proviso to Section 10 of the Act of 1885. The petitioners are, therefore, not entitled to get the relief sought for by them in the present writ petition.

In view of above, the writ petition fails and is hereby dismissed.

The same will, however, not preclude the petitioners from taking recourse to other remedies, if any, as may be available to them under the relevant statute(s).

It is always open to the parties to sit together, consider each others'' difficulties and reach to an amicable settlement.

Let certified copies of this judgment/order be supplied to learned counsel for the parties within 3 days, on payment of usual charges.