@JUDGMENTTAG-ORDER
R. Sudhakar, J.@mdashThe petitioner filed the present writ petition seeking for a Certiorarified Mandamus calling for the records of 2nd respondent leading to the issue of the impugned order No.SE/GCC/CNI/AEE/MM/F.LRT/D 379/10 dated 25.5.2010 and quash the same as illegal and void and consequently direct the respondents to forbear from erecting electrical towers on the petitioner''s lands in Survey Numbers 292/2, 293/5, 290/1, 293/7 & 289/3B without their consent and without following the due process of law. The petitioner, a private limited company, has filed this writ petition to quash the letter of the second respondent Superintending Engineer dated 25.05.2010 whereby the objection of the petitioner to realign the transmission line has been rejected by the Superintending Engineer stating that the erection of the tower lines was commenced based on the Government approval granted in G.O.Ms.No.102 Energy (C3) Department, dated 10.12.2009 as provided under Sections 68 and 164 of the Electricity Act, 2003. The Superintending Engineer also stated that the technical feasibility was considered at the time of drawing the proposal and approval of the project and therefore, deviation is not possible. It is also stated in the impugned proceedings that since the erection of the tower lines is as per approved scheme u/s 164 of the Electricity Act 2003, the petitioner should co-operate in its implementation. Challenging the said reply Mr. V. Parthiban, Learned Counsel appearing for the petitioner submits as follows:
For the purpose of erection of tower lines, the respondent authorities will have to follow Section 67 of the Electricity Act, 2003 and the rules made thereunder. Section 185(2)(b) of the Electricity Act, 2003 states that the provisions contained in Sections 12 and 18 of Indian Electricity Act, 1910 and the rules made thereunder shall have effect until the rules under Sections 67 to 69 of this Act are made. He also pointed out Section 12 of the Indian Electricity Act, 1910 to plead that objection has not been considered as per law. Sub-sections 1 and 2 of Section 12 of the Indian Electricity Act, 1910 reads as follows:
12. 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 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, 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, 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 or securing in position any support of an (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:
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.
2. It is, therefore, submitted that since the petitioner has sought for an alternative, the tower line should not be erected without the permission of the owner or occupier. He relies upon decisions of this Court to support his plea.
3. Per contra, learned Advocate General assisted by Mr. G. Vasudevan, Learned Counsel appearing for the respondents Electricity Board, contended that Section 164 of the Electricity Act 2003 gives the power to the Government for placing an electrical line or electrical plant for the transmission of Electricity and the provisions of the Indian Telegraph Act will be made applicable to the same for exercise of power thereon. Section 164 of the Electricity Act, 2003 reads as follows:
164. Exercise of powers of Telegraph Authority in certain cases:- The Appropriate Government may, by order in writing, for 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 co-ordination of works, confer upon any public officer, licensee or any other person engaged in the business of supplying electricity under this Act, subject to such conditions and restrictions, if any, as the Appropriate Government may think fit to impose and to the provisions of the Indian Telegraph Act, 1885 (13 of 1885), any of the powers which the telegraph authority possesses under that Act with respect to the placing of telegraphic lines and posts for the purposes of a telegraph established or maintained, by the Government or to be so established or maintained.
In this case, a Government Order has been passed for the purpose of placing the electric lines under a scheme and therefore, no permission is required from the owner. Learned Advocate General relies upon the Division Bench decision of this Court in C. Ram Prakash and another vs. Power Grid Corporation of India Ltd., and another reported in (2011)8 MLJ 593 :2011-4-L.W. 924.
4. In support of this plea the learned Advocate General further submitted that the G.O.Ms.No.102 Energy (C3) Department, dated 10.12.2009 has been passed by the Government granting approval to the Board for executing 230KV transmission lines, from Arasur 400 KV SS to Arasur 230 KV SS. This Government Order is passed in terms of Sections 68 and 164 of The Electricity Act, 2003. The said order has been passed based on feasibility study and after considering the technical parameters.
5. The Government in G.O.Ms.No.102 Energy (C3) Department, dated 10.12.2009 granted approval as follows:
4. After careful examination, the Government hereby accord administrative approval to Tamil Nadu Electricity Board for executing the power evacuation line works for the NCTPS Stage-II and MTPS Stage-III projects as provided for, u/s 68 and 164 of The Electricity Act, 2003.
6. For the purpose of laying the electric line or electrical transmission of electricity, Section 164 enables the Government or the authority to invoke the provisions under the Indian Telegraph Act. Sections 10, 12 and 16 of the Indian Telegraph Act, 1885 which reads 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) the telegraph authority shall not exercise the powers conferred by this section except for the purpose 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.
12. Power for local authority to give permission u/s 10, clause (c), subject to conditions:- Any permission given by a local authority u/s 10, clause (c) may be given subject to such reasonable conditions as that authority thinks fit to impose, as to the payment of any expenses to which the authority will necessarily be put in consequence of the exercise of the powers conferred by that section, or as to the time or mode of execution of any work, or as to any other thing connected with or relative to any work undertaken by the telegraph authority under those powers."
16. 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).
(3) If any dispute arises concerning the sufficiency of the compensation to be paid u/s 10, clause (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him.
(4) If any dispute arises as to the persons entitled to receive compensation, or as to the proportions in which the persons interested are entitled to share in it, the telegraph authority may pay into the Court of the District Judge such amount as he deems sufficient or, where all the disputing parties have in writing admitted the amount tendered to be-sufficient or the amount has been determined under sub-section (3), that amount; and the District Judge, after giving notice to the parties and hearing such of them as desire to be heard, shall determine the persons entitled to receive the compensation or, as the case may be, the proportions in which the persons interested are entitled to share in it.
(5) Every determination of a dispute by a District Judge under sub-section (3), or sub-section (4) shall be final:
Provided that nothing in this sub-section shall affect the right of any person to recover by suit the whole or any part of any compensation paid by the telegraph authority, from the person who has received the same.
7. A reading of Section 164 read with Sections 10 and 16 of the Indian Telegraph Act, 1885 would reveal that for the implementing the scheme as per Government Order the authority has the same power as that of the Telegraph authority. Section 10 of the Indian Telegraph Act, 1885 gives the power to enter upon and there is no restraint except complying with the requirement of Section 16 of the Indian Telegraph Act, 1885.
8. The petitioner in this case has asked for reallocation of the line based on certain technical parameters. There is no resistance or obstruction for the laying of the electric line. Therefore, Section 12 of the Indian Electricity Act, 1910 and Section 16(1) of the Indian Telegraph Act, 1885 does not come into play. The only question that remains to be considered is whether the line can be altered or relocated.
9. Section 164 of the Electricity Act, 2003 enables the appropriate Government to draw an evacuation scheme and implement it and it is not in dispute. Admittedly, no rules have been framed in terms of Section 67 of the Electricity Act, 2003. Section 185(2)(b) of the Electricity Act, 2003 which deals with Repeal and Saving provides that the provisions contained in Sections 12 to 18 of Indian Electricity Act, 1910 and the Rules made thereunder will apply. Further, Section 164 of the Electricity Act, 2003 also provides that the provisions of Indian Telegraph Act, 1885 will be made applicable for the purpose of implementing the Government order for placing of electrical line or electrical plant for the transmission of electricity. A reading of the above provisions makes it clear that in respect of a scheme the mode of implementation is by following the mandate of Section 164 of the Electricity Act, 2003. Sections 10 and 16 of the Indian Telegraph Act, 1885, provides for compensation and petitioner can have no grievance on that as the respondents are not denying it.
10. A Division Bench of this Court in C. Ram Prakash and another vs. Power Grid Corporation of India Ltd., and another reported in (2011)8 MLJ 593 in its decision dated 23.08.2011 considered the scope of the term "objection". Sections 10 and 16 of the Indian Telegraph Act made applicable in Section 164 of the Electricity Act, 2003 were considered by the Division Bench in the above cited decision, and held that it is not necessary that every obstruction or resistance should be considered and the authority should be approached. In the above referred decision, the Division Bench of this Court has clearly held the scope of Sections 10 and 16 of the Indian Telegraph Act, 1885 in paragraphs 22, 23 and 24.
22. Scope of Sections 10 and 16 of the Indian Telegraph Act, 1885:
The power u/s 10 of the Indian Telegraph Act, 1885 is rather wide and extensive. While exercising the power, it is not necessary for the respondent No. 1 to put to individuals, who owned the land on notice. Admittedly, the respondent No.1 has got power under Sections 10 and 16 of the Indian Telegraph Act, 1885. Such a power has been conferred upon the respondent No. 1 in public interest. The exercise of the said power by erecting the towers with overhead lines would not amount to an acquisition. It is true that such an action would diminish the value of the property of an individual, but at the same time, it cannot be termed as an acquisition. Since Section 16 of the Indian Telegraph Act, 1885 provides mechanism of compensation, the appellants can have no grievance.
23. Section 16 of the Indian Telegraph Act provides for a mechanism by which the respondent No. 1 can approach the second respondent, if there is an obstruction or resistance, it is not necessary that in each and every case, the respondent No. 1 will have to approach the second respondent whenever there is an objection. The word objection has got a different connotation than the words resistance or obstruction. A resistance or obstruction would mean preventing the statutory body from carrying out the public duty. Whereas an objection is merely a form of protest. Further, u/s 16 of the Indian Telegraph Act, the respondent No. 2 has got no power to go into the merits of the case and find out as to whether the alignment proposed is correct or not and there is any possibility of realignment. The prescription of Section 16 of the Indian Telegraph Act is very specific to provide aid to the respondent No. 1 to perform its statutory duty. Considering the scope of Section 10 of the Indian Telegraph Act vis-a-vis Section 16 of the Indian Telegraph Act, it has been held by the Division Bench of the Delhi High Court in Scindia Potteries v. Purolator India Ltd., AIR 1980 Del 157 as follows:
9... 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 alleged oral protest relied upon by the appellant appears to us to be a made up story. Two telegraph poles were affixed on the appellants'' property in February, 1974. The telephone lines and connections were thereafter given from time to time. Till the landlord-tenant dispute arose between the appellant and Purolator India Ltd., no objection was raised by the appellant. No doubt in April, 1978 the appellant gave notice to the telegraph authority under Sections 17 and 19A of the Act and may be that the telephone connections in May, 1978 can be treated as the ones objected to but then Sections 17 and 19A have a different purport. The resistance and obstruction envisaged by Section 16(1) of the Act is different. This will be clear on a reading of sub-section (1) of Section 16 of the Act. It is for the purpose of Section 188 IPC, that an application is to be given u/s 16(1) of the Act to the District Magistrate. Section 188, IPC makes the disobedience of an order duly promulgated by the public servant an offence. Section 16 is really in aid of the discharge of statutory duty and exercise of statutory power postulated by Section 10.
We are in respectful agreement with the ratio laid down therein.
24. The Learned Counsel for the appellants made reliance upon the judgment of the Full Bench of this Court in Arumugam v. State of Tamil Nadu (Supra). We are afraid that the said case has no relevance to the present case on hand. The Full Bench of this Court was dealing with a conscious omission made by the legislature touching upon Article 21 of the Constitution of India, whereas considering the object behind the Indian Telegraph Act and the Electricity Act, 2003, and in view of the power available u/s 10 of the Indian Telegraph Act, 1885, the respondent No. 1 has got every jurisdiction to erect the towers.
11. It has been clearly held by the Division Bench that the authority while considering the objection has no role insofar as alignment is concerned.
In the present case as per the Government Order the approval for execution of power plant evacuation line, in exercise of power u/s 164 of the Electricity Act 2003 has been granted and therefore, there is no power vested with the Superintending Engineer to grant any relief as sought for in the representation for change of alignment.
12. The Division Bench decision clearly mandates that the objection of the land owner will not be of any consequence for the purpose of alignment but it can be only with regard to the issue relating to compensation that will be determined u/s 16 of the Telegraph Act. Therefore, the petitioner''s plea for change of alignment cannot be considered by this Court.
13. In any event, the impugned letter is a reply given to the petitioner after considering the request for re-alignment. That has been considered by the Superintending Engineer and declined in view of the Government Order and scheme. The representation of the petitioner has been replied and it does not give a cause of action for the petitioner to file the writ petition. No provision of law is shown to have been breached to maintain this writ petition. There is no obstruction in order to force the respondents to approach any authority under the provisions of the Electricity Act or the Indian Telegraph Act.
14. My attention is drawn to the earlier order passed by a learned Single Judge in W.P.No. 36566 of 2007 dated 28.1.2008 (T.S.T. Kaznavi vs. Tamil Nadu Electricity Board rep. by its Chairman and Others), which I had followed in an earlier occasion in W.P.No. 6353 of 2010 dated 22.6.2010 relying upon a Full Bench Decision of the Kerala High Court in
