@JUDGMENTTAG-ORDER
Sujoy Paul, J.@mdashThese petitions are analogously heard on the joint request of learned counsel for the parties.
Facts are taken from W.P. No. 2496/13.
The petitioners are owners of land described in the writ petition. Their grievance is that the respondent Power Grid Corporation of India Ltd. (Corporation) is laying high tension electricity line through their land. At the outset, Shri T.S. Ruprah, learned senior counsel for the Corporation relied on a recent judgment of this Court passed in W.P. No. 3868/14 (Alkesh Tripathi Vs. The Power Grid Corporation of India Ltd. and others). On the strength of this, it is stated that this judgment squarely covers the points involved in the petitions in hand and petitions deserve to be dismissed.
2. Shri K.N. Gupta, senior counsel submits that the judgment in Alkesh Tripathi (supra) is distinguishable. By taking this Court to various paragraphs of Alkesh Tripathi (supra), it is argued that in Alkesh Tripathi (supra) and in the judgment of
3. Shri K.N. Gupta, learned senior counsel placed heavy reliance on Rule 3 of the Works of Licensees Rules, 2006 (2006 Rules). By taking this Court to Rule 3 of the said Rules, it is submitted that it was obligatory and mandatory on the part of the licensee to obtain prior permission either from the owner/occupier or from the appropriate authority prescribed in the said provision. In absence thereof, the mandate of Rule is not followed. He further submits that similar facts were considered by the Patna High Court in LPA No. 1132/2010 (The Power Grid Corporation Vs. Ram Naresh Singh and Ors). He submits that Patna High Court judgment squarely covers his case. In addition, he submits that petitioner has a fundamental right under Article 300A of the Constitution of India to enjoy his property/land. Petitioner''s rights can be taken away only as per the procedure laid down in law.
4. Per contra, Shri T.S. Ruprah, learned Senior counsel submits that a plain reading of Rule 3 of 2006 Rules makes it clear that it is applicable in all situations of laying the line from the land of a person. It does not distinguish between diversion of the line or laying down the land for the first time. He submits that the distinction sought to be made is imaginary and has no legs to stand. He further submits that in national interest, interim order be vacated. He placed heavy reliance on the judgment passed by the Indore Bench in Vijay Ramanchandra Agrawal (supra). By taking this Court to para 17 of the judgment of writ court and writ appellate court, it is submitted that curtains are finally drawn on the said point and, therefore, Wps. be dismissed. Shri Khedkar prayed for compensation. No other point is pressed by the parties.
5. I have heard the learned counsel for the parties and perused the record.
6. On perusal of the record, it is clear that the Government of India by notification dated 24.12.2003 has authorized the Corporation to undertake exercise of laying down the electricity line. Learned counsel for the parties, during the course of argument, clearly admitted that the electricity line which is subject matter of challenge in the present case is arising out of same project which was called in question in Alkesh Tripathi (supra). As per the authorization, it is clear that the Corporation has power to lay down the line. The pivotal question is whether the distinction put-forth by Shri K.N. Gupta makes any difference so far the presidential value of the judgment of Indore Bench and judgment of Alkesh Tripathi are concerned? To consider this, I deem it proper to quote relevant part of Rule 3 of 2006 Rules in this regard, which reads as under:-
"3. Licensee to carry out works.--(1) A license may-
(a) carry out works, lay down or place any electric supply line or other works in, thorough, or against any building, or on, over or under any land whereon, where-over or where-under any electric supply-line or works has not already been lawfully laid down or placed by such license, with the prior consent of the owner or occupier of any building or land;
(b) fix any support of overhead line or any stay or strut required for the purpose of securing in position any support of an overhead line on any building or land or having been so fixed, may alter such support;
Provided that in case where the owner or occupier of the building or land raises objections in respect of works to be carried out under this rule, the licensee shall obtain permission in writing from the District Magistrate or the Commissioner of Police or any other officer authorized by the State Government in this behalf, for carrying out the works:"
7. A bare perusal of the rule makes it clear that the distinction shown by Shri K.N. Gupta, learned senior counsel is of no help to him. Rule 3 does not make any difference for the purpose of laying the electricity line for the first time or by way of diversion etc. Whenever electricity line is to be laid down, Rule 3 will be applicable. The alleged distinguishable feature canvassed by Shri Gupta is artificial and has no bearing on the applicability of aforesaid Rule 3.
8. It is noticed that the question of consent of owner as per Rule 3 is dealt by writ court (Indore Bench) in Vijay Ramachandra Agrawal (supra), which reads as under:-
"17. On a perusal of the aforesaid paragraph, it is evidence that no such consent, as claimed by the petitioner, is required, in keeping in view section 10 of the Indian Telegraph Act, 1885 read with section 164 of the Electricity Act, 2003".
9. The Indore Bench based its judgment on the basis of judgment of Andhra Pradesh High Court in the case of
"33. For the aforesaid reasons, I am of the opinion that section 164 of the Electricity Act, 2003 read with section 10 of the Indian Telegraph Act, 1885 recognized the absolute power of the AP Transco to proceed with placing of electric supply lines or electric polls for the transmission of electricity on or over the private lands subject to the right of the owner/occupier to claim compensation if any damage is sustained by him by reason of placing of such electric supply lines. In other words, neither the acquisition of the lands is necessary nor there is any need for consent of the owner or occupier.
34. It is also relevant to note that since section 28 or 42 of the Electricity (Supply) Act, 1948 are not saved u/s 185 of the Electricity Act, 2003, there is no need to publish a sanctioned scheme nor it is necessary to give any notice by publication in local news papers as required u/s 29(2) of the Electricity (Supply) Act, 1948. In spite of the same, the notification dated 14.7.2007 was published in the A.P. Gazette as well as two local dailies inviting objections from the interested/aggrieved persons and no objections were received from anyone.
35. In the circumstances, the impugned action of the respondents cannot be held to be arbitrary, illegal or contrary to the provisions of the Electricity Act, 2003, on any ground whatsoever. Hence, no Mandamus can be issued restraining the respondents from proceeding with the erection of poles and transmission lines through the lands of the petitioners. However, this shall not preclude the petitioners to claim the compensation by working out the appropriate remedy as available under law in case any damage is sustained to their property."
10. The Jharkhand High Court in
"8. In view of scheme of the Electricity Act, 1910, Electricity (Supply) Act, 1948, Electricity Act, 2003, the Rules of 2006 and section 10 of the Telegraph Act; and the notification dated 24.12.2003, it is clear that prior consent from the petitioners was/is not required."
11. The Division bench affirmed the said order and opined in para 17 as under:-
"17. In view of the aforesaid analysis the argument of the learned Counsel for the appellant that prior consent of the appellants was necessary under Rule 3(1), is found to be devoid of any merit and is accordingly rejected."
12. A conjoint reading of the judgment of writ court and writ appellate court in Vijay Agrawal and judgment of this Court will make it clear that the action of the respondents is in consonance with the relevant provisions of the Indian Telegraph Act, electricity Act and Rule 6 of the said Rules. Although as noticed in Alkesh Tripathi (supra), the Patna High Court has taken a different view, this Court held that this Court is bound by DB judgment of MP High Court. The Division Bench (Indore) in no uncertain terms made it clear that no consent of owner and occupier is required for laying down the line. Hence, no fault can be found in the action of the respondents for laying down the line.
13. Considering the aforesaid, in my opinion, the petition deserves to be dismissed.
14. Shri Nakul Khedkar lastly raised the question of compensation. This aspect is also no more res-integra. In
"9. A bare reading of Section 10 makes it clear that it is the duty of the telegraph authority to take line and to grant compensation if any damage is caused payable while exercising the powers of taking the transmission line. Section 16 of the Telegraph Act provides in case of any obstruction is created, District magistrate is authorized to order that the telegraph authority shall be permitted to exercise the power, in case any obstruction is made by any person. Subsection (2) of Section 16 provides that such an obstructer shall be deemed to have committed an offence u/s 188 of the Indian Penal Code. Sub-section (3) of Section 16 of the Telegraph Act provides that in case any dispute arises concerning the sufficiency of the compensation to be paid u/s 10(d), an application has to be filed before the District magistrate. A bare reading of Section 16 and Section 10(d) makes it clear that question of making payment arises only after the transmission line is taken through the field. Only when the exercise is completed and any loss is caused then compensation is required to be determined, not otherwise, as such prayer of the petitioner for determination of compensation before hand, is misconceived as it may be a cause where no damage is ultimately caused. Once the line is taken, thereafter if any loss is caused, only in that event compensation can be claimed as apparent from readings of Section 10 and 16. No compensation can be claimed by mere fact transmission line is taken over the field."
15. A bare perusal of this para makes it clear that at this stage, compensation cannot be quantified. It can be determined after laying down the line and depends on the actual loss caused to the owner. Following this judgment, I am only inclined to observe that it will be open to the petitioners to file appropriate proceedings for compensation at appropriate stage in accordance with law. As analyzed above, the action of respondents in laying electricity line is in consonance with the provisions of Telegraph Act, Electricity Act and the Rules made thereunder. Thus, I am unable to hold that any fundamental right including right flowing from Article 300-A is taken away by the respondents. This is trite that interest and claim of whole community/public interest is always superior to the interest of individual. Where public/national interest is involved, individual may be required to suffer. No interference is warranted on this count.
16. Petitions fail and are hereby dismissed.
17. The ad-interim orders are vacated. No cost.
