@JUDGMENTTAG-ORDER
G. Rohini, J.@mdashThe writ petitioner claims to be the owner of the land to an extent of 7,647 sq. yards situated in Sy. No. 51/5 of Jaggarajupeta, Visakhapatnam District having purchased the same in the year 2007 under a registered sale deed. Aggrieved by the action of the respondents 1 to 4 in proposing to lay the basement for erecting electrical lines in the petitioner''s property, he had earlier filed W.P. No. 15497 of 2008. The said writ petition was dismissed by order dated 18.7.2008 granting liberty to the petitioner to pursue the appropriate alternative remedy before a Civil Court of competent jurisdiction. Against the said order, the petitioner preferred W.A. No. 793 of 2008. Having regard to the submission made on behalf of the respondents that the Visakhapatnam Urban Development Authority vide memo dated 11.9.2008 had advised AP TRANSCO to go for underground cabling, a Division Bench of this Court by judgment dated 9.11.2009 disposed of the said Writ Appeal granting liberty to the appellant/the petitioner herein to make an appropriate representation to the AP TRANSCO to consider the proposal for underground cabling. Pursuant thereto, the petitioner submitted representation dated 14.12.2009 requesting the respondents 2 to 4 to go for underground cabling or in the alternative to pay compensation as per prevailing market rate. In response to the same, the 1st respondent - The Executive Engineer, TLC Division, AP TRANSCO - by letter dated 8.2.2010 informed the petitioner that the request of the petitioner to have underground cabling was not feasible and that the AP TRANSCO was proceeding with the overhead line works. Aggrieved by the same, the present Writ Petition is filed contending inter alia that the impugned action of the respondents is liable to be declared as arbitrary and illegal since the same is in violation of the provisions of the Electricity Act, 2003 and also Indian Telegraph Act, 1910.
2. The learned Counsel for the petitioner vehemently contended that laying of electricity supply line without the consent of local authority or of the owner or occupier of the land was impermissible under law.
3.I have also heard the learned Counsel appearing for the respondents and perused the material available on record, including the counter-affidavit filed on behalf of the respondents 1 to 4.
4. The powers of the authority under the Electricity Act, 2003 for erection of poles and transmission lines on private land was considered by this Court in detail in
5. It is to be noticed that Section 67(1) of the Electricity Act, 2003 empowers a licensee to carry out works to lay down and place electric lines, electrical plant and other works. Section 67(2) further provides that the appropriate Government may, by rules made by it, specify the cases and circumstances in which the consent in writing of the appropriate government, local authority, owner or occupier as the case may be shall be required for carrying out the said work.
6. While observing that no such rules were made by the appropriate Government in exercise of rule making power u/s 67(2) of the Electricity Act, 2003, this Court in G.V.S. Rama Krishna''s case (supra) held that in terms of the Repeal and Savings clause u/s 185(2)(b) of the Electricity Act, 2003, the provisions contained in Sections 12 to 18 of the repealed Indian Electricity Act, 1910 continue to govern the field and consequently in the absence of an order u/s 164 of the Electricity Act, 2003 the consent of the owner or occupier u/s 12(1) of the repealed Act was essential.
7. The learned Counsel appearing for the respondents, while relying upon the above decision and while drawing the attention of this Court to the contents of the counter-affidavit, wherein it was explained that G.O.Ms. No. 115, dated 7.10.2003 was issued in exercise of the powers conferred u/s 164 of the Electricity Act, 2003, conferring the powers on the AP TRANSCO, submitted that the ratio laid down in G.V.S. Rama Krishna''s case (supra) squarely applies to the present case and therefore the impugned proceedings cannot be held to be vitiated merely on the ground that consent of the petitioners was not obtained.
8. However, the learned Counsel for the petitioner contended that the decision in G.V.S. Rama Krishna''s case (supra) was rendered on an erroneous assumption that no rules were made u/s 67(2) of the Electricity Act, 2003. While submitting that in exercise of the powers conferred by Section 176(2)(e) read with Section 67(2) of the Electricity Act, 2003, the Central Government vide GSR. No. 217E, dated 18.04.2006, (published in the Gazette of India dated 18.04.2006) made the rules called the Works of Licensees Rules, 2006 (for short, ''the Rules''), it is contended by the learned Counsel for the petitioner that as per Rule 3 of the said Rules the prior consent of the owner or occupier of any building or land was essential to lay down or place any electric supply line by a licensee and in case the owner or occupier raised an objection in respect of the works to be carried out, the licensee was bound to obtain permission in writing from the District Magistrate or the Commissioner of Police or any other officer authorized by the State Government in that behalf for carrying out the works. Thus it is contended that the decision in G.V.S. Rama Krishna''s case (supra) was not applicable and the respondents cannot proceed with the laying of the electric lines without following the procedure laid down under Rule 3 of the Works of Licensees Rules, 2006.
9. Having carefully considered the above submissions, I do not find any substance in any of the contentions raised by the learned Counsel for the petitioner. It is true that the Works of Licensees Rules, 2006 made u/s 67(2) of the Electricity Act, 2003 were not taken into consideration in G.V.S. Rama Krishna''s case (supra) and this Court proceeded on the basis that no Rules were made u/s 67(2) of the Electricity Act, 2003. While observing that as per Section 185(2)(b) of the Electricity Act, 2003, the provisions contained in Section 12(2) of the repealed Indian Electricity Act, 1910 under which the consent of the owner or occupier was essential, shall have effect until the Rules are made u/s 67 of the Electricity Act, 2003, this Court made it clear that such consent of the owner or occupier was necessary only in the absence of an order u/s 164 of the Electricity Act, 2003. Having taken into consideration all the relevant provisions of the Electricity Act, 2003, the legal position was explained in the above decision as under:
On an analysis of Section 67 and Section 164 of the Electricity Act, 2003, it is apparent that whenever an order is passed by the appropriate Government in exercise of the powers u/s 164 of the Electricity Act, 2003 for the placing of electric lines for the transmission of electricity, conferring upon any public officer, licensee or any other person engaged in the business of supplying electricity any of the powers which the telegraph authority possesses under the Indian Telegraph Act, 1885 with respect to the placing of telegraphic lines and posts for the purposes of a telegraph established by the Government, such public officer, licensee or any other person engaged in the business of supplying electricity stands in the same position as regards the exercise of power as the telegraph authority under the Indian Telegraph act, 1885. However, in the absence of such an order u/s 164 of the Electricity Act, 2003, if a licensee i.e., a person who has been granted a licence to transmit electricity or to distribute electricity under the Act, proposes to place electric lines, electric plant or other works necessary for transmission or supply of electricity. Section 67 of the Electricity Act, 2003 comes into operation and consequently it is mandatory to obtain the consent of the concerned owner or occupier as required u/s 12(2) of the Indian Electricity Act, 1910.
(emphasis supplied)
10. It is also relevant to note that in G.V.S. Rama Krishna''s case (supra), Section 164 of the Electricity Act, 2003 was invoked conferring on the AP TRANSCO the powers which the Telegraph Authority possesses under the Indian Telegraph Act, 1885. In the circumstances, on facts it was concluded in G.V.S. Rama Krishna''s case (supra) that Section 12 of the Indian Electricity Act, 1910 which provided for the consent of owner/occupier had no application and therefore the action impugned was neither arbitrary nor illegal.
11. The provisions of the Works of Licensees Rules, 2006 made u/s 67(2) of the Electricity Act, 2003 are in pari materia to Section 12 of the repealed Indian Electricity Act, 1910. Admittedly the Works of Licensees Rules, 2006 are applicable only where the works have been taken up by the licensee u/s 67(1) of the Electricity Act, 2003. As clarified in G.V.S. Rama Krishna''s case (supra), Section 67(1) of the Electricity Act, 2003 as well as the rules made u/s 67(2) govern the field only in the absence of an order u/s 164 of the Electricity Act, 2003. In a case where an order is passed by the appropriate government in exercise of the powers u/s 164 of the Electricity Act, 2003, the licensee is competent to exercise the powers which the Telegraph Authority possessed under the Indian Telegraph Act, 1885 with respect to the placing of telegraphic lines and posts for the purpose of a telegraph established by the Government. Since the powers u/s 10 of the Indian Telegraph Act, 1885 can be exercised without acquiring the land in question, once an order is passed by the appropriate government u/s 164 of the Electricity Act, 2003, the public officer, licensee or any other person engaged in the business of supplying electricity shall be entitled to proceed with the works of placing the electric lines without acquiring the land in question.
12. It is not in dispute that in the instant case a notification has been issued invoking Section 164 of the Electricity Act, 2003. Therefore, Section 67(1) of the said Act or the Works of Licensees Rules, 2006 made u/s 67(2) are not attracted and as per Section 164 of the Electricity Act, 2003 read with Section 10 of the Indian Telegraph Act, 1885, the respondents can proceed with the placing of electric supply lines or electric poles for the transmission of the electricity on or over the lands of the petitioner without acquiring the same and there is also no need to obtain his consent.
13. For the aforesaid reasons, notwithstanding the fact that the Works of Licensees Rules, 2006 were not taken into consideration, the ratio laid down in G.V.S. Rama Krishna''s case (supra) is applicable to the case on hand.
14. Accordingly, following the decision in G.V.S. Rama Krishna''s case (supra), the Writ Petition is hereby dismissed. However, this shall not preclude the petitioner to claim compensation by working out the appropriate remedy as available under law in case any damage is caused to his property. No costs.
