T.K. Lakshmanan vs Tamil Nadu Electricity Board

R. Banumathi, J.—As against the concurrent findings of Courts below, dismissing the Plaintiff''s suit for removal of electric poles,

unsuccessful Plaintiff has preferred this second appeal.

Facts are not in dispute. Plaintiff is the owner of 3.42 acres in S. No. 91/2 purchased under two different Sale Deeds. Plaintiff is the absolute

owner of the said properties and has been paying kist etc. Four poles were erected in the Plaintiff''s land for the purpose of giving service

connection in S.F.Nos. 49 and 51, which is owned by one Palanisami Nadar.

Case of Plaintiff is that without his consent, four electric posts had been planted in a haphazard manner in his land, causing obstruction and

hindrance to the lands where nanja crops have been raised. At least two lines were taken in the midst of Plaintiff''s property for taking electricity

connection to the lands of Palanisami Nadar and hence, the Plaintiff has filed the suit for permanent injunction restraining the Defendants by planting

posts and also restraining them from effecting power supply and for mandatory injunction directing the Defendants to remove post P-1 to P-4.

Contending that Board is empowered to exercise powers of the Telegraphic Authority under the provisions of Indian Electricity Supply Act and

no permission need be accorded in drawing lines across the patta lands and contending that except through Plaintiff''s land, power supply cannot

be effected to the well of one Palanisami, Defendant/Tamil Nadu Electricity Board [in short, ''Electricity Board''], has filed Written Statement.

In the trial Court, four issues were framed. In consideration of evidence, trial Court held that it is mandatory requirement to obtain consent of

land owner to plant post. Holding that Section 12(2) of the India Electricity Act, 1910 would be applicable, trial Court took the view that as per

Section 12(2), Electricity Board cannot lay any pole without the consent of the owner. Finding that the Plaintiff''s consent was not taken by the

Electricity Board, trial Court decreed the suit.

Aggrieved by the Judgment of the trial Court, Electricity Board has preferred appeal and in the appeal, Electricity Board raised a plea that they

are entitled to invoke Section 51 of the Indian Electricity Act, 1910. Holding that the provisions of Section 12(2) is not applicable and only Section

51 of the Electricity Act and Section 10 of Telegraphic Act alone would be applicable, the Appellate Court took the view that the action of the

Electricity Board cannot be said to be illegal and on those findings, reversed the Judgment of the trial Court and allowed the appeal.

The second appeal preferred by the Plaintiff was admitted on the following substantial questions of law:

Whether the lower Appellate Court is correct in law in coming to the conclusion that in view of Section 51 of the Indian Electricity Act 1910 no

notice need be given to the applicant before the electricity poles are erected on his property to supply electricity energy to a third party ?

Whether the lower Appellate Court is correct in coming to the conclusion that the appellant has got to prove special damages before instituting

the suit especially when the allegation is that the Respondents have erected the electricity poles without notice of the Appellant ?

Challenging the findings of Appellate Court, the learned Counsel for the Plaintiff has submitted that only for the first time in the Appellate Court,

Electricity Board has invoked Section 51 of the Indian Electricity Act, 1910 and urged that scope and ambit of Section 51, Indian Electricity Act,

1910 is not applicable to the case in hand. The learned Counsel further contended that Electricity Board is bound to obtain Plaintiff''s consent u/s

12(2) of the Act. In support of his contention, the learned Counsel has placed reliance upon S. Kannappan (died) and Others Vs. The Commr.,

Tiruvottriyur Municipality and Others, and 2007 (2) MLJ 111 [Bharat Heavy Electricals Ltd., Trichy rep. by its General Manager and Anr. v.

Tamil Nadu Electricity Board, rep. by its Chairman and Ors.].

Placing reliance upon E. Venkatesan and others Vs. Chairman, Tamil Nadu Electricity Board, Madras and others, , the learned Counsel for the

Electricity Board has submitted that for laying of electric posts and lines, Board is exercising power u/s 51 of the Electricity Act. The learned

Counsel has further submitted that in any event when there was no objection by the Plaintiff at the time of erection of posts, Plaintiff cannot later

raise objection to the same. It was further submitted that notwithstanding Section 12(2) of the Act, Electricity Board is entitled to enter upon the

land to erect poles.

The main grievance of the appellant is that he has not been given notice before laying of poles and without obtaining his consent, Respondents

have drawn electric poles through his patta land. Main contention of the Plaintiff is that Electricity Board has erected poles in Plaintiff''s land in

violation of Section 12(2) of the Indian Electricity Act, 1910.

It is a fact that Section 12(2) of the Act imposes a condition to obtain consent of the owner of the land before erecting poles. Section 12(2) of

the Act reads as follows:

Provision as to the opening and breaking up of streets, railways and tramways:

(1)...

(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 of 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:

Respondents justify their action on the ground that they are legally entitled to enter Plaintiff''s property and draw electric lines and erect posts.

Electricity Board justifies their action by invoking Section 51 of the Electricity Act and that notification has been issued u/s 51 of the Electricity Act

in the year 1961 itself. u/s 51 of the Indian Electricity Act, 1910, notwithstanding anything contained in Ss.12 to 16 [both inclusive] and Ss.18 and

11, the Central Government, in the case of Inter State Transmission system and the Statement Government in the case of Intra State Transmission

system, as the case may be, may by Order in writing, confer on any Public Officer, lincensee or any other person engaged in the business of

supplying energy to the public under this Act, any of the powers which the telegraph authority possesses under the Act, with respect to the placing

of telegraph-lines and posts for the purposes of a telegraph established and maintained by the Government or to be so established or maintained. It

is on the basis of this power, the Electricity Board says that they are entitled to draw electric line, and, for the said purpose, dug pits and instal

towers. The grievance of the Plaintiff is that even if such a power is given, the Respondents are not entitled to draw the line without obtaining

Plaintiff''s consent. How far the said contention is tenable, is to be considered.

Considering the scope of Section 51, in case of sanctioned scheme and drawing High Tension lines over the lands of petitioners, holding that

no written consent is required, referring to Kerala High Court Judgment, in E. Venkatesan and others Vs. Chairman, Tamil Nadu Electricity Board,

Madras and others, , Justice S.S. Subramani has held as follows:

When the Electricity Board exercises power u/s 51 of the Electricity Act read with Section 10 of the Telegraph Act, they are not acquiring any

land. They are only making use of the land for the purpose of laying electric lines for which full compensation is given for the damage caused. It is

also clear therefrom that no notice is required to the owner before laying the poles or constructing any tower, nor any consent is required from

them.

In the instant case, the fact that there was a Notification in 1961 is not a matter in dispute subsequently proceedings have been issued by the

Electricity Board on 18.12.1993 whereby the scheme was approved, and it was also declared that the Board will exercise power of Telegraph

Authority u/s 45 of the Electricity Supply Act, and, therefore, the Electricity Board shall not be bound by the provisions of Sections 12 to 16, 18

and 19 of the Electricity Act, 1910. In view of the Notification and also the approved scheme, no plea can be put forward by the petitioners that

the officers of the Electricity Board are not entitled to enter the property or to draw the electric line. Once the power under the Telegraph Act is

given to the public officers of the Board, they are also entitled to dig pits and also instal towers over the property. The question of consent from the

petitioners does not arise for consideration, nor is it required under law.

Moreover it is their case that at the time of survey, there was no objection from the said petitioners, and even at the time when preparations were

made for laying the foundation for installing the tower, there was no objection raised by the petitioners. If any such consent is required, silence

amounts to consent. A subsequent representation or filing of objection cannot affect the powers of Board authorities in drawing the lines through

the property.

The above case related to drawing of High Tension wire in a sanctioned scheme, in which it was held that Electricity Board was entitled to invoke

Section 51.

14.In the decision reported in 1994 WLR 445 [M. Nithyanandam v. The Chairman, Tamil Nadu Electricity Board], Justice AR. Lakshmanan has

rejected the plea of petitioners that Board has no right in law to erect towers etc. without the consent and permission of owner, as provided in

Section 12 of the Act. The said case also related to fixing Electricity lines between supporting towers and energising the same, in which it was held

that the Electricity Board is entitled to invoke Section 51.

In the present case, supply was effected to an agricultural service connection of one Palanisami Nadar. When service was effected to

agricultural purpose, it cannot be said that Board is entitled to invoke Section 51 of Indian Electricity Act, 1910, read with Section 10 of

Telegraphic Act. In fact, Electricity Board has not raised that plea in the Written Statement that they are entitled to invoke Section 51 of the Act.

That plea was raised for the first time in the lower Appellate Court. Since electric posts were laid for extending electric lines for agricultural

purposes, Electricity Board is not entitled to invoke Section 51.

u/s 12(2) of the Indian Electricity Act, 1910, Electricity Board can erect poles only after obtaining the consent of the owner of the land. But in

this case, for more than one reason Plaintiff cannot contend any violation of the conditions imposed u/s 12(2) of the Act. Supply was given to the

said Palanisamy Nadar on 31.08.1988. Erection of poles must have been started much earlier. But at the time of erection of poles, Plaintiff has not

raised any objection. Long after service was effected, Plaintiff has filed the suit on 21.09.1988. It is relevant to note that Palanisamy, who is the

owner of S.F.Nos. 49 and 51, for whom service was effected for agricultural purposes has not been made a party. There is no material or

evidence showing under what circumstances the pole was erected in Plaintiff''s land and what is the stand of Palanisamy for effecting service to his

agricultural purposes. Much light would have been thrown on those aspects had Palanisamy been impleaded as a party.

Contending that electricity poles and supply lines erected in Plaintiff''s land without his consent is in violation of Section 12(2) of the Electricity

Act, the learned Counsel for the Plaintiff has placed reliance upon S. Kannappan (died) and Others Vs. The Commr., Tiruvottriyur Municipality

and Others, and my Judgment 2007 (2) MLJ 111. In the BHEL''s case, there was number of litigations between BHEL and the church and even at

the time of erection of poles for effecting service to the Church, BHEL has raised strong objection and in the light of Section 27(6) of the Tamil

Nadu Electricity Distribution Code 2004, I have held that 4th Respondent church thereon has to find out necessary way leave at its own expense.

The above decision stands on different factual aspects in view of number of litgations pending between BHEL and church. As noticed earlier, in

this case, Plaintiff has not raised any objection at the time of erection of poles and the Plaintiff is precluded from raising objection. That apart, poles

were erected and service was effected only for agricultural purpose. In these days where impetus is given to agricultural sector from all quarters, it

would not be appropriate for this Court to direct removal of electric poles on the ground that Plaintiff''s consent was not obtained. This is all the

more so at this distant point of time, nearly after 20 years, after erection of poles. The grant of injunction being a discretionary relief, the Appellate

Court has rightly reversed the finding of the trial Court. The conclusion of the lower Appellate Court is to be confirmed though on different

reasonings set forth above.

The Judgment in A.S. No. 90/1991 on the file of District Judge, Dindigul, Anna District is confirmed and this second appeal is dismissed.

Parties are directed to bear their own costs.