Umayambikai Mills Pvt. Ltd. vs Paulraj Nadar and Another

Natiarajan, J.—The first Respondent in Criminal Miscellaneous Petition No. 57 of 1983, on the file of the Chief Judicial Magistrate,

Ramanathapuram at Sivaganga is the Petitioner and the prayer in the petition is for quashing the order passed by the Chief judicial Magistrate in the

abovesaid petition.

The Petitioner owns a textile mill. In order to give supply of electricity to the Petitioner mill, the second Respondent, viz., the Tamil Nadu

Electricity Board, installed electric posts in the land now owned by the first Respondent herein. At the time the posts were planted, the land was

owned by the predecessor in title of the first Respondent. The said predecessor filed a suit O.S. 188 of 1982, on the file of the District Munsif''s

Court, Sattur, and prayed for an injunction, but failed. Thereafter, the first Respondent has purchased the land. The second Respondent then fixed

electric wires to the posts and supplied energy to the Petitioner. This was objected to by the first Respondent and he filed a petition., in Crl. M.P.

57 of 1983, on the file of the Chief Judicial Magistrate and contended that the planting of posts in his land and the fixation of electric wires to the

posts so planted was without his consent u/s 12(2) of the Indian Electricity Act, 1910 (hereinafter referred to as the Electricty Act), and as such,

the Petitioner and the second Respondent should be asked to remove the electric wires. The learned Chief Judicial Magistiate has accepted the

contention of the first Respondent and ordered removal of the wires within 15 days and further directed that if his order was not carried out, the

first Respondent himself can remove the wires and recover the cost of removal from the Petitioner and the second Respondent. It is against that

order the Petitioner has filed this petition.

Mr. Vedantam Srinivasan, learned Counsel for the Petitioner, submitted that the order of the Chief Judicial Magistrate is not in accordance with

law and therefore, the order should be set aside. The counsel referred to the provisions contained in Sections 12 to 16 of the Electricity Act and

also to Section 51 of the Act. He argued that Section 51 was of an over-riding nature and in view of the fact that the State Government had

empowered the second Respondent to carry out all works necessary for supply and distribution of electric energy to the various consumers, the

first Respondent vas not entitled to rely upon Section 12 of the Act, and raise an objection that without his consent the second Respondent cannot

validly install electric lines over his land and transmit power to the Petitioner mill. The counsel further stated that the predecessor in title of the first

Respondent had filed a suit in the civil court and sought to obtain an order of injunction to prevent the second Respondent from installing electric

poles in his land, but the attempt proved unsuccessful, and in such circumstances, the first Respondent is bound by the order of the civil court. The

posts having been installed, the second Respondent is entitled to draw lines over the posts and supply electric energy to the Petitioner mill through

those lines.

Mr. Govindarajan, learned Counsel for the first Respondent, controverted the arguments of Mr. Vedantam Srinivasan and sought sustainment of

the order passed by the Chief Judicial Magistrate, on the ground that Section 12 (2) of the Electricity Act was not trammeled by Section 51 and

hence the fixation of posts and installation of electric wires in the first Respondent''s land without his consent constituted a violation of his rights and

therefore, the first Respondent has every right in law to object to power being transmitted to the Petitioner through lines drawn over his land.

The learned Chief Judicial Magistrate, has taken the view that since the words ''owner or occupier'' have been introduced in Section 12 (2) by

Act 32 of 1959, Section 51, which was in existence even prior to Act 32 of 1959, should be read down, and construed in that manner, Section 51

will not confer power on the second Respondent to fix posts and draw wires over the first Respondent''s land without obtaining his consent. He

has further held that since the first Respondent was not a party to the civil suit filed by his predecessor in title, the findings rendered in that case will

not affect his rights.

From what has been stated above, the limited question for consideration is whether the second Respondent is entitled, u/s 51 of the Electricity

Act, to fix posts and draw lines over the first Respondent''s land without obtaining his consent, or whether the second Respondent ought to have

obtained the first Respondent''s consent as envisaged u/s 12(2)of the Act, and, having failed to do so, whether the drawing of electric lines is

contrary to law.

Sub-section (1) and (2) of Section 12 read as follows:-

Sub-section (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 license to lay down or place 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.

Sub-section (2): Nothing contained in Sub-section (l) shall be deemed to authorise or empower a licensee, without the consent of the local

authority or 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 and under any land not dedicated to public use whereon, whereover or whereunder any electric supply-line or

work has not already been lawfully laid down or placed by such licensee.

The words ''owner or occupier'' have been introduced in Sub-section (2) by Act 32 of 1959. On a reading of Sub-section (2) it is seen that no

work contemplated in Sub-section (l) can be done by a licensee without the consent of (1) the local authority, or (ii) the owner or occupier

concerned, as the case may be, in, through or against any building, or on, over or under any land not dedicated to public use where any electric

supply-line or work has not already been laid down or placed. We then come to Section 51 of the Act, which reads as follows:

Notwithstanding anything in Sections 12 to 16 (both inclusive) and Sections 18 and 19, the State Government may be order in writing, for the

placing of electric supply lines ,appliances and apparatus for the transmission of energy or for the purpose of telephonic or telegraphic

communications necessary for the proper co-ordination of works, confer upon any public officer, licencee or any other person engaged in the

business of supplying energy ''to the public under this Act. subject to such conditions, restrictions (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.

The words ""State Government"" as well as the words ''electric supply lines, appliances and apparatus for the transmission of energy or for the

purpose of telephonic or telegraphic communications, necessary for the proper coordination of works, confer upon any public Officer, licencee or

any other person engaged in the business of supplying energy to the public under this Act, have been introduced by Act 1 of 1922 and Act 32 of

1959, respectively. Section 51 is clear in its terms and there can be no difficulty in seeing that it is of an overriding nature. The very opening words

of the section are-''Notwithstanding anything contained in Sections 12 to 16 (both inclusive) and Sections 18 and 19,"" and as such, the intention of

the Legislature as regards the scope of Section 51 is rendered very clear.

The view of the Chief Judicial Magistrate that notwithstanding the existence of Section 51, the words ''owner or occupier'' which have been

introduced in Sub-section (2) of Section 12 by Act 32 of 1959, must be taken to mean that Section 51 has to be read down in so far as the

consent of owners or occupiers envisaged u/s 12 (2) is concerned, is not correct in law. Section 12 (2) originally provided for the consent of the

local authority being obtained, but subsequently, the Legislature felt that in appropriate cases the consent of the owner or occupier should also be

obtained if the lands or buildings of private parties are to be affected in any manner. On that score, the words ''owner or occupier'' were newly

introduced in Section l2 (2) by Act 32 of 1959. But that would not mean that Section 51 of the Act has to be read down in any manner. The

section remains the same in so far as the non obstante provision is concerned. The reference in Sections 51 to Sections 12 to 16, 18, and 19

should be taken to mean that all those Sections in their entirety would be subject to the overriding status of Section 51. Hence the view of the Chief

Judicial Magistrate cannot be sustained.

The scope of Sections 12 and 51 of the Electricity Act has come up for consideration in a few reported cases. The earliest of the cases is

reported in South Madras Electric Supply Corporation, Ltd. Vs. T.L. Jagannatha Aiyar and Others, In that case, the owner of a land filed a suit

for a mandatory injunction to direct the Defendant, viz, the Electric Supply Corporation, to remote the high tension lines and posts from his

property and for recovery of damages and costs. The defence raised was that the civil court had no jurisdiction and if the Plaintiff was aggrieved,,

he should move the District Magistrate under the proviso TO Sub-section (2) of Section 12 and Sub-section (3) of Section 12 of the Electricity

Act and ask for compensation. The trial court sustained the defence, but the appellate court reversed the judgment of the trial court. Basbeer

Ahamed Sayeed, J. confirmed the judgment of the appellate court. Inter alia the learned Judge held that Section 51 would protect acts relating to

placing of appliances and apparatus for transmission of energy, but not for installation of high tension lines. The relevant portion occurring at page

450, reads as follows:

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 pi icing 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 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. 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 the 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.

From this observation if can be seen that in so far as the placing of appliances and apparatus for the transmission of energy is concerned, Section

51 would have overriding effect over the other provisions of the Act. In this case, the fixation of lines is for transmission of electrical, energy to the

Petitioner mill, and not for carrying electricity through high tension lines.

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

High Court had to consider the scope of Section 51 of the Electricity Act read with Section 10 of the Telegraph Act as well as its vires. The Full

Bench held that the powers exercisable by a licencee u/s 51 cannot be compared with the powers available to him u/s 12. The relevant passage

occurs in paragraph 16 at page 51 of the decision, and it reads as follows-

Coming now to the case of licencees authorised u/s 51 of the Electricity Act, it is urged that they may either exercise the powers u/s 12 of the

Electricity Act or resort to the provisions of the Telegraph Act. Though Section 12 enumerates various acts that can be done by a licencee for the

purpose of laying down or placing: electric supply lines, such acts can be done only with the consent of the local authority or of the owner or

occupier concerned Section 12(2). This is no power at all, for, without the consent nothing can be done. What can be done, therefore, u/s 12

cannot be compared with the exercise of powers u/s 10 of the Telegraph Act by a person empowered to do so u/s 51 of the Electricity Act

In Sri Provash Chandra Sett and Others Vs. Gouripore Electric Supply Co. Ltd. and Others, , it was held that Section 51 of the Electricity Act

does not impose any restriction upon the fundamental right to acquire, hold and dispose of property and as such, it is not incumbent upon the State

Government to give notice to the proposed exercise of power u/s 51 to an affected party.

In yet another case Deva Raj Vs. U.P. State Electricity Board, Lucknow and Others, it came up for consideration whether the State Electricity

Board bad power to locate towers on the land owned by a person. A Division Bench of the Allahabad High Court 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'', ''n view of the notification u/s 51 of the Act of 1910 read with Section 10 of the 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 right be has left now is to

obtain compensation under the notification referred to above read with Section 10 (d) of the Telegraph Act.

The ratio contained in the abovesaid decisions clearly lends support to the view taken by me. The first Respondent''s counsel tried to sustain

the order of the Chief Judicial Magistrate by contending that Section 12 (2) must he read independent of Section 51. But this contention cannot be

accepted for the reasons already mentioned. He then argued that a distinction should be made between a service line and a supply line and that

Section 51 is intended to cover only supply lines for the general public and it would not cover the installation of a service line as the one on hand,

without getting the consent of the first Respondent. This is not a tenable contention because a service line is also a supply line and a distinction

cannot be drawn between supply line to the general public and service line to one or more consumers.

In the result, the contention of the Petitioner that the learned Chief Judicial Magistrate has wrongly construed Sub-section (2) of Section 12,

and passed the impugned order, has to be sustained.

The Petitioner''s counsel then submitted that the learned Magistrate has committed another error in holding that the dismissal of the injunction

petition filed by the first Respondent''s predecessor in title would not bind the first Respondent. This contention also is irrefutable. The relief of

injunction asked for by the predecessor in title of the first Respondent was with reference to the land in question, and not in assertion of his

personal right. Hence the subsequent owner of the property is undoubtedly bound by the adverse finding against his vendor. The electricity posts

having been successfully installed, the second Respondent is entitled in law to draw supply line over the posts and supply electricity to the

Petitioner.

If the first Respondent is damnified in any manner by the installation of the electric posts and the taking of electric lines over those posts, his

remedy is to ask for compensation as provided for in Section 10 of the Indian Telegraph Act.

In the result the criminal revision case will stand allowed; and the order of the learned Chief Judicial Magistrate in Crl. M.P. 57 of 1983. on his

file will stand set aside. Since the first Respondent has filed a counter in the stay petition alleging that he has removed the electric lines on the expiry

of 15 days the Petitioner is entitled to have the electric lines restored and the second Respondent in exercise of its powers u/s 51 of the Electricity

Act can restore the lines to their original condition in which they were before being dismantled by the first Respondent.