The Executive Engineer, Tamil Nadu Electricity Board vs Avanashi Gounder and The District Collector <BR>The District Collector Vs Avanashi Gounder and The Executive Engineer Tamil Nadu Electricity Board

R. Banumathi, J.—These Writ Appeals arise out of the order dated 11.3.2002 made in W.P. No. 20929 of 2000 quashing the proceedings

of the District Collector, Erode dated 28.11.2000 made in Ref. No. 64859/2000/K-4, whereby the District Collector, Erode, permitting Tamil

Nadu Electricity Board (in short, ""TNEB"") for stringing lines at location 18 and 19 in R.S. No. 893/2 of Suriampalaym Kanjikoil village. Learned

single Judge also directed removal of all poles erected in S.F. No. 893/2 of Kanjikoil village, Erode District. For the sake of convenience, the

parties are referred to as per their array in Appeal preferred by the TNEB.

The brief facts are that the TNEB established a 110 K.V. Sub Station at Gandhinagar near Suriampalayam village in Perundurai Taluk, Erode

District. For the said Sub Station, a 110 K.V. D.C. line is stapped off from existing GobiErode 110 K.V. D.C. line located in between 326 to 327

(near Chinniyampalayam) is to be laid to connect the Sub Station to the existing E.H.T. line. The 1st Respondent, Chinnasamy and Sigamani, who

are the land owners of Survey No. 893/2 raised objection for erection of towers in between the span 18 and 19 in their lands. The Objectors have

also filed a Cviil Suit before the District Munsif Court, Perundurai in O.S. No. 28 of 2000 and in I.A. No. 124 of 2000 the Civil Court has granted

interim stay. Since the land owner obstructed the work, TNEB approached the 2nd Respondent/District Collector seeking permission to TNEB to

exercise the powers u/s 10 Part III of P & T Act. Notices were issued to the Objectors and TNEB for enquiry on 7.11.2000. Both the Objectors

and TNEB authorities appeared for enquiry and the 2nd respondent/District Collector enquired both the land Owner and TNEB officials.

On direction of the 2nd Respondent, District Revenue Officer along with the land owner and TNEB officials inspected the field in S.F. No.

893/2, Kanjikoil village and District Revenue Officer submitted report to the District Collector. Upon consideration of the objections and also

District Revenue Officer''s report, the District Collector passed the impugned order dated 28.11.2000 made in Ref. No. 64859/2000/K-4

granting permission to the TNEB to exercise the powers u/s 10 Part III of Telegraph Act, 1885 for stringing lines at location 18 and 19 in R.S.

No. 893/2 of Suriampalaym Kanjikoil village and permitted TNEB to continue the project.

Challenging the order of the District Collector, the 1st Respondent/Writ Petitioner filed the Writ Petition contending that there is an alternative

and more convenient source available to connect the service line from poles No. 17 to 19 and even though the 1st Respondent has explained his

grievance, without going into the merits and demerits of the objections raised by the 1st Respondent, the District Collector erroneously rejected the

1st Respondent''s objection. The 1st Respondent/Writ Petitioner further averred that for erecting the poles in his lands, no consent was obtained

and the stringing of lines over his lands has caused damage to his lands and caused diminution of the value of the lands and Writ Petitioner prayed

for quashing the order of the District Collector dated 28.11.2000 made in Ref. No. 64859/2000/K-4.

Placing reliance upon a decision of this Court in S. Kannappan (died) and Others Vs. The Commr., Tiruvottriyur Municipality and Others, the

learned Single Judge held that Section 12(2) of the Electricity Act imposes a condition to obtain the consent of the owner of the land before

erecting poles and TNEB was not able to prove that they have obtained consent of the land owner, which is in clear violation of the conditions

imposed u/s 12(2) of the Act. The learned single Judge further held that without such consent poles cannot be erected in the lands of the Writ

Petitioner and on those findings quashed the order of the District Collector and directed removal of the poles.

Challenging the order of the learned single Judge, Mr. J. Ravindran, the learned Counsel for TNEB submitted that no electricity tower was

erected in the 1st Respondent''s land and that tower has been erected only in the adjoining lands belonging to the other persons and only the tower

lines strung between two towers are crossing the 1st Respondent''s land at a sufficiently safe height and it does not in any way cause hindrance or

obstruction for the enjoyment of the land by the 1st Respondent. Learned Counsel would further submit that the District Collector has conducted

an enquiry and only upon consideration of the Inspection Report of the District Revenue Officer, issued the impugned order permitting TNEB to

exercise the powers u/s 10 of the Indian Telegraph Act, 1885. The main contention of the Appellant TNEB is that in view of orders passed by the

District Collector, TNEB is competent to exercise the powers of entry in respect of properties. It was further argued that the Public Officer on

whom the powers of Telegraph Authority u/s 10 of the Telegraph Act have been conferred u/s 51 of the Indian Electricity Act and the learned

single Judge did not properly analyse the matter in the light of Section 51 of the Indian Electricity Act.

Reiterating the submissions of TNEB, Mr. Arumugham, the learned Special Government Pleader submitted that only in the welfare of the public

and to continue the ambitious public Welfare Project to meet the long felt needs of the people in and around Suriampalayam, Kanjikoil,

Pethampalayam and Perundurai villages, the District Collector has passed the impugned order. It was further submitted that u/s 42 of the Electricity

(Supply) Act, 1948, it is the sanctioned scheme and that Section 10 of Telegraph Act empowers Telegraph Authority to place towers and draw

lines in any immovable property, which is also applicable to TNEB under Sections 12 and 51 of the Electricity Act. It was further submitted that

since the land owners obstructed the work, the District Magistrate exercised the power u/s 16 of Indian Telegraph Act and thereby permitting

TNEB to exercise the powers u/s 10 of Indian Telegraph Act for stringing lines at locations 18 and 19 of R.S. No. 893/2 and the same is only in

public interest.

Reiterating the findings of learned single Judge, the learned Counsel for the 1st Respondent/Writ Petitioner submitted that TNEB has not

obtained consent of the land owner and learned single Judge rightly applied the ratio of the decision in S. Kannappan (died) and Others Vs. The

Commr., Tiruvottriyur Municipality and Others, . It was further submitted that a conjoint reading of Section 12 of Indian Electricity Act and

Sections 28, 29 and 42 of Electricity (Supply) Act, 1948 Act, only for a sanctioned scheme, the powers u/s 10 of Indian Telegraph Act can be

exercised and there is nothing to show that the establishment of Sub Station and laying K.V. D.C line was Sanctioned. The learned Counsel would

further submit that merely because some Sections empowered TNEB and the District Collector to confer on the licensees some powers which can

be exercised by the Telegraph Authorities under the Indian Telegraph Act, it does not mean that all the provisions of Indian Telegraph Act could

be incorporated into the Electricity (Supply) Act. The learned Counsel would further submit that neither Section 16(1) nor Section 10 of Indian

Telegraph Act would have any application to this case and the learned single Judge rightly directed TNEB to remove the high power electricity

tower line strung over the lands of the 1st Respondent.

Even at the outset, it may be noted that already there was electricity line drawn over the property in Survey No. 893/2 of the 1st Respondent.

As per proviso to Section 12, Sub-section (2) of Indian Electricity Act, ""any overhead line may be fixed on any building or land 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."" Since there was already an electric line drawn through their lands, as

per the proviso to Section 12(2), the drawing of high tension electric line could only be stated to be ''alteration''.

Be that as it may, the 1st Respondent challenges the impugned order of the District Collector dated 28.11.2000 made in Ref. No.

64859/2000/K-4 mainly on the following grounds:

� 1. Consent of the 1st Respondent was not obtained by TNEB

� 2. There is an alternative and more convenient source available to connect the Service Line from Pole Nos. 17 to 19.

� 3. The District Collector did not properly consider the objections of the 1st Respondent and erroneously rejected the objections raised by the

Petitioner without going into the merits and demerits of the objections raised by the 1st Respondent.

u/s 12 of the Indian Electricity Act, a licensee cannot without the consent of the owner or occupier concerned, place any electric supply-line or

other work in, through or against any building, or on, over or under any land belonging to such owner or occupier concerned, Section 51 of the

Indian Electricity Act however begins with the word ""Notwithstanding anything contained in Sections 12 - 16"". Thus Section 51 is a non obstante

clause and it overrides the provisions of Section 12 of the Indian Electricity Act. In other words, Section 12 must yield if there is a conflict between

the said provision and Section 51 of the Act. In our considered view, learned single Judge did not examine Section 12 in the light of Section 51 of

the Act, which contains a non obstante clause.

Section 51 of the Act reads as under:

Exercise in certain cases of powers of telegraph authority. Notwithstanding anything contained in Sections 12 - 16 (both inclusive) and

Sections 18 and 19, the Central Government in the case of inter-State transmission system and the State Government in the case of intra-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

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 purposes of a telegraph established or

maintained by the Government or to be so established or maintained.

Section 51 enables the State Government:

(a) to confer upon any public officer, licensee, or a non-licensee any of the powers which the telegraphy authority possesses under the Indian

Telegraph Act, 1885 (13 of 1885);

(b) to confer such powers subject to

(i) such conditions and restrictions as the State Government may think fit to impose; and

(ii) the provisions of the Indian Telegraph Act, 1885;

(c) to confer such powers for the purpose of

(i) placing of electric supply-lines or works for transmission of energy;

(ii) telephone or telegraphic communications necessary for the purpose of co-ordination of works.

When the Electricity Board exercises power u/s 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.

By virtue of notification issued u/s 51 of the Electricity Act read with Section 10 of the Telegraph Act, it is not possible to contend that the

Electricity Board has no power to locate towers on the land owned by a person. The only right left to the owner of the land on or over which any

line is stretched or laid or any tower is constructed is to obtain compensation.

Sections 10 - 19 and Section 34 of Indian Telegraph Act empower the Telegraph Authority to place and maintain Telegraph lines and posts to

enter a property for their repair or removal. Section 10 of the Indian Telegraph Act reads as under:

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 persons interested for any

damage sustained by them by reason of the exercise of those powers.

Sections 16(1) and (2) of Indian Telegraph Act reads as under:

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 u/s 188 of the Indian Penal Code (45 of

1860).

Whenever there is any objection in fixing electric poles or drawing electric lines for transmission of energy, the Board should approach the

District Magistrate and get an order from the District Magistrate that the authority shall be permitted to exercise the powers u/s 10 of the Act. The

power to approach the District Magistrate is not only with regard to the Telegraph Authority but to the Public Officer or any other person

authorised under the Electricity Act. Since the objection was raised by the 1st Respondent/land owner and all the objectors have also filed the suit

in O.S. No. 28 of 2000 on the file of District Munsif''s Court, Perundurai and the case was also pending, TNEB approached the District Collector.

Before the District Collector, Objectors have stated that if the tower is erected in a straight route, it will result in savings of the expenditure to

TNEB. The Electricity Board stated that the route suggested by the 1st Respondent cannot be adopted as it would be detrimental to the interest of

habitations nearby and there will be some hindrance to the route of 20th tower line because of the hillock in between. Pursuant to the direction

from the 2nd Respondent, District Revenue Officer along with the Objectors and TNEB officials inspected the field and filed the report. By perusal

of the impugned order it comes to be known that the report of District Revenue Officer revealed that ""in case of acceptance of the new route as

stated by the Objectors, no vertical clearance can be secured as per the norms prescribed by TNEB and the minimum height vertically should be

28 feet."" District Revenue Officer''s report stated that because of the existence of the hillock the vertical clearance could not be obtained and the

District Revenue Officer reported that it is not safe to change the alignment since the scheme was almost completed at a cost of Rs. 5 Crores.

Upon consideration of the objections of the land owners and the report of the District Revenue Officer, the District Collector has passed the order

permitting TNEB to exercise the powers u/s 10 Part III of Telegraph Act and to continue the Project.

Once the District Collector has passed the order u/s 16(1), Sub-section (2) of Section 16 of Telegraph Act provides that if any person resists

the exercise of those powers he shall be deemed to have committed an offence u/s 188 of the Indian Penal Code. In exercise of the powers

conferred on the District Collector as per Section 16(1) of Indian Telegraph Act, when permission was granted to TNEB to exercise powers u/s

10 Part III of Telegraph Act, the learned single Judge was not right in saying that no consent was obtained from the land owners. In our considered

view, a conjoint reading of Section 51 of Indian Electricity Act and Sections 10 and 16(1) and (2) of Indian Telegraph Act, the condition imposed

u/s 12(2) of the Indian Electricity Act cannot have precedence over the permission granted by the District Collector. The learned single Judge did

not keep in view the power of the District Magistrate u/s 16(1) and deeming provision u/s 16(2). As per Section 16(2), any resistance to the

exercise of power is an offence. An order was passed by the District Magistrate, exercising his power u/s 16(1) permitting TNEB to exercise its

powers u/s 10 Part III of Telegraph Act for stringing lines, the deeming provision of Section 16(2) would become meaningless if we are to say that

consent of land owner was to be obtained when electricity supply lines are drawn through. Based on the permission granted by the District

Collector when Electricity supply lines are drawn through the lands, it might result in destruction or damage to the land resulting in diminution in

value of the land over which the lines are drawn. For such diminution in value of the land, the 1st Respondent/land owner can only claim

compensation. Having regard to Section 16(1) and (2) of the Indian Telegraph Act, the 1st Respondent cannot raise any objection for laying of the

lands.

In Bharat Plywood and Timber Products Private Ltd. Vs. Kerala State Electricity Board Trivandrum and Others, the Full Bench of Kerala

High Court considering the scope of Sections 10 and 16 of the Telegraph Act, 1885, held as under:

...23. It is clear from the wording of Section 16 and particularly from the expression ""the District Magistrate may, in his discretion"", that an order

will not be forthcoming automatically... The wording of the section is thus itself indicative of the fact that in cases of resistance or obstruction the

District Magistrate will have to decide whether the authority should be permitted or not to exercise the powers u/s 16 of the Telegraph Act. This

necessarily means that the telegraph authority cannot override or ignore the resistance or obstruction and continue to exercise the powers u/s 10

notwithstanding such resistance or obstruction. It follows that, when an owner or occupier resists or obstructs the exercise of the power u/s 10, the

telegraph authority will have to approach the District Magistrate for an order under Sub-section (1) of Section 16 and can exercise the power u/s

10 only in cases where the District Magistrate deems it fit to pass an order that he shall be permitted to do so. The power conferred by Section 10

is thus a conditional power; conditional on an order being passed u/s 16(1) by the District Magistrate that the authority may be permitted, in case

of resistance or obstruction, to exercise the power. This is so not only in regard to telegraph authority but to the public officer or any other person

authorised under the Electricity Act....

If the telegraph authority has the power, notwithstanding the resistance or obstruction, to exercise the powers u/s 10, the resistance or obstruction

by the owner or occupier, we conceive, would be an offence u/s 186 of the Indian Penal Code... Sections 10 and 16 have to be read together and

when there is resistance or obstruction, the power u/s 10 can be exercised only when the District Magistrate passes an order u/s 16(1) that he shall

be permitted to exercise them.

...If Section 16(1) is not applicable to a public officer authorised u/s 51 of the Electricity Act, one or two results must follow. The Public

Officer in cases of resistance or obstruction may not be able to lay the lines; or notwithstanding the resistance or obstruction he may be taken as

empowered to lay the lines. We do not think that either of these should be the position, and the interpretation that we should place on the effect of

an authorisation u/s 51 of the Electricity Act and the provisions in Sections 10 and 16 of the Telegraph Act must serve the object and purpose

which they are intended to serve. The public officer on whom powers have been conferred pursuant to Section 51 of the Electricity Act must stand

in the same position as regards the exercise of power as the telegraph authority. His power should not be abridged, nor should it be enlarged. We,

therefore, think that Section 16 of the Telegraph Act is as much applicable to a public officer on whom powers have been conferred pursuant to

Section 51 of the Electricity Act as to a telegraph authority.

...when an authority is resisted in the exercise of power u/s 10 of the Telegraph Act, he has no alternative but to approach the District

Magistrate for necessary orders u/s 16(1) of the Telegraph Act....

The learned Counsel for 1st Respondent/Writ Petitioner Mr. N. Manoharan laid emphasis upon Sections 28, 29 and 42 of the Electricity

(Supply) Act, 1948 (Act No. 54 of 1948). The learned Counsel submitted that as per Section 28(2) and Section 29, only if the Scheme is

sanctioned Scheme, Section 42 of Electricity (Supply) Act will come into play and in the absence of any sanctioned scheme, the Board cannot

invoke the provisions of Indian Telegraph Act.

u/s 28 of Electricity Supply Act, 1948, the Board is authorised to prepare schemes, inter alia concerning establishment of transmission lines.

Sub-section (3) states that ""(3) Every scheme sanctioned under this section shall be published in the official gazette and in such local newspapers as

the Board or, as the case may be, the generating company may consider necessary.

Since reliance on Section 42 as well is made, it would be necessary to quote the relevant provision for easy reference:

Powers to Board for placing wires, poles, etc. (1) Notwithstanding anything contained in Sections 12 - 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 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 (13 of 1985) 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 - 19 of the first mentioned

Act shall apply to the works of the Board.

(2) ....

Though not specifically referred to, advertence to Section 29 also might be relevant. This refers to schemes estimated to involve a capital

expenditure exceeding such sum, as may be fixed by the Central Government, from time to time. Separate procedure is envisaged for the two

classes of the Scheme. Before a scheme coming under the above section is finalised, the Board has to publish the features thereof in the official

gazette and local newspapers so as to receive representations from interested persons. After considering such representations, and after making

further enquires, the scheme, if it requires modification, shall be finally prepared and is to be submitted to the notified authority viz., Central

Electricity Authority. In respect of the schemes u/s 28, of course this is not a procedure to be followed. In that, as soon as the scheme is

sanctioned, the same could be forwarded to the Authority and every scheme sanctioned under the section is to be published in the official gazette

and such local news papers as the Board may consider it necessary.

Section 29 refers to schemes estimated to involve a capital expenditure exceeding such sum as may be fixed by the Central Government from

time to time. Separate procedure is envisaged for the two clauses of the Scheme. As per Section 29, before a Scheme under the above Section is

finalised, the Board has to publish the features thereof in the official gazette and the local news papers so as to receive the representations from

interested persons. After considering such representations and after making further enquiries, the Scheme, if it requires modification, shall be finally

prepared and is to be submitted to the notified authority viz., Central Electricity Authority. In respect of the Schemes u/s 28, of course, this is not a

procedure to be followed and every Scheme sanctioned under the Section is to be published in the official gazette and such local news paper as

the Board may consider it necessary.

The main contention of the learned Counsel for 1st Respondent is that u/s 42 of the Electricity (Supply) Act, the Board has been conferred

with powers notwithstanding anything contained in Sections 12 - 16. The power is conferred to exercise powers under Part III of the Telegraph

Act only if the Scheme is sanctioned. Learned Counsel would further submit that there was no material to show that 110 K.V. Sub Station at

Gandhi Nagar, Erode District and for stapping off line and for location of 110 K.V. D.C. line to connect the Sub Station was a sanctioned scheme

and while so the Board cannot exercise the powers under Part III of Indian Telegraph Act. The contention of the first Respondent is that there is

no material to show that the Scheme was published in the paper publication or in the Government Gazette. The contention that the Scheme was not

a sanctioned Scheme and that it was not published in the news papers and Government Gazettes does not merit acceptance.

The learned Counsel for TNEB and the learned Special Government Pleader Mr. Arumugham have produced the typed set of papers

containing the proceedings of the Electricity Board approving the establishing of 110 KV Sub Station at Gandhi Nagar and laying of lines. The

Appellants have also produced the Government Gazette dated 4.8.1999 publishing the proposals for Sub-Stations and allied transmission lines,

which is inclusive of Gandhi Nagar Erode 110 KV Sub-Station. As rightly contended by the learned Counsel for the Appellant, there was no

violation of provisions of Indian Electricity (Supply) Act.

The learned single Judge was not right in placing reliance upon S. Kannappan (died) and Others Vs. The Commr., Tiruvottriyur Municipality

and Others, and observing that TNEB ought to have obtained the consent of owner of the land before erecting poles. We are of the view that the

learned single Judge did not keep in view Section 51 of the Indian Electricity Act and the non obstante clause therein and the powers of the District

Magistrate u/s 16(1) of the Act, the deeming provision u/s 16(2) of the Indian Telegraph Act and the order of learned single Judge is liable to be

set aside.

The learned Counsel for the 1st Respondent submitted that once the electric lines are stringing through the lands of the 1st Respondent/land

owner, the 1st Respondent is entitled to claim compensation for diminution in land value and requested us to fix the quantum of damages. Section

10 of the Indian Telegraph Act empowers the Telegraph Authority to place and maintain telegraph lines over, along, or across, and to erect posts

in or upon any immovable property It is under the above provisions of law the Board is permitted to place towers, poles and draw electric lines

across immovable properties. Section 10(d) mandates the Telegraph authority shall do as little damage as possible, and when it has exercised

those powers in respect of any property it shall pay full compensation to all affected persons for any damages sustained by them by reason of the

exercise of those powers. If any dispute arises concerning the sufficiency of the compensation to be paid u/s 10(d) it shall be decided by the

District Judge as per section 16(3). If the 1st Respondent feels that there is diminution of value of land because of stringing of electricity lines it is

open to him to seek appropriate remedy in accordance with law. Exercising jurisdiction under Article 226 of the Constitution of India, the High

Court cannot randomly fix the quantum of compensation.

In the result, the order of learned single Judge dated 11.3.2002 made in W.P. No. 20929 of 2000 is set aside and both the Writ Appeals are

allowed. It is open to the 1st Respondent/land owner to seek remedy in accordance with law, if he is so advised. Consequently, the connected

miscellaneous petition is closed. No costs.