@JUDGMENTTAG-ORDER
A. Kulasekaran, J.@mdashAll these writ petitions are filed for similar relief against the respondents, pleading identical grounds, hence, they are
disposed of by this common order.
2. The petitioner in WP No. 9426 of 2005 has prayed for a Writ of Certiorarified Mandamus to call for the records pertaining to the notification
published in the official gazzette of Tamil Nadu Government dated 01.08.2001 in connection with (Letter No. SE/GCC/CNI/Tech/CHD/F.T. & D
2001-22/D 635/2001 DT. 21.05.2001) proceedings No. VI-3(b)/21/2001 of the second respondent and quash the same and direct the
respondents to cancel all approvals, sanctions and measures in connection with the scheme and not to lay over-head electricity lines above or
across Plot No. R-21, Ambattur Phase I & II Scheme of TNHB in S.No. 49/part in Ayapakkam Village of Tiruvallur District.
3. The petitioner in WP No. 11347 of 2007 has prayed for a Writ of Certiorarified Mandamus to call for the records pertaining to the notification
published in the official gazzette of Tamil Nadu Government, dated 01.08.2001 in connection with (Letter No. SE/GCC/CNI/Tech/CHD/F.T & D
2001-22/D.635/2001 dated 21.05.2001) proceedings No. VI-3(b)/21/2001 of the 2nd respondent and quash the same and direct the
respondents to cancel all approvals, sanctions and measures in connection with the scheme and not to lay over-head electricity lines above or
across Plot No. 8 and 8A, Va.U.C. Nagar in Survey No. 30/1B and 30/4C in Ayapakkam Village of Tiruvallur District to dismantle and remove
the H.T. Electricity Tower installed therein.
4. The petitioner in WP No. 11426 of 2007 has also filed WP No. 16429 of 2007 for a Writ of Declaration declaring the Section 42 of the
Electricity Supply Act, 1948 as unconstitutional, ultravires the constitution and null and void.
5. The case of the petitioner in WP No. 9426 of 2005 is as follows:
The petitioner is a registered society bearing registration Number 449/1958-59. The petitioner purchased a plot bearing No. R-21 to an extent of
927.70 Sq.meters in the year 2001, situate in Ayyapakkam Village, Thiruvallur District from the Tamil Nadu Housing Board for a valuable
consideration for construction of a Church. By a letter dated 27.11.2002, the Housing Board also granted permission to the petitioner to construct
a church after getting approval from the local authorities and accordingly planning permission was obtained by the petitioner and the church was
constructed. During January 2005, the respondents/electricity Board attempted to erect an electricity high voltage transmission line in the said area
for which preparations for erecting the transmission tower were made in front of the church. When the same was questioned by the petitioner, it
was replied that the electricity transmission line would pass over the church, for which neither a notice was given to the petitioner, nor their consent
was obtained. On 14.01.2005 and 17.02.2005 representations were submitted by the petitioner stating that the proposed erection of transmission
tower would pose danger to the petitioner church, hence, the petitioner has filed WP No. 6747 of 2005 for Mandamus directing the respondents
to forbear from erecting any electricity transmission line over the said property but this Court refused to grant interim injunction. Thereafter, on
enquiry, the petitioner came to know that a notification dated 21.05.2001 purported to have been issued u/s 28(3) of the Electricity Supply Act,
1948 by the respondents, in and by which, they called for objections u/s 29(2) of the Electricity Act, 1948 from the interested persons on the
above schemes within two months which is contrary to the Electricity Act, 1910 and Electricity Supply Act, 1948, hence, challenging the said
notification dated 21.05.2001, the present writ petition has been filed.
6. The case of the Petitioner in both WP No. 11347 and WP No. 16429 of 2007 is as follows:
The petitioner purchased the land in Survey No. 30/1 and 4, which was subsequently sub-divided as 30/1b and 4C bearing Plot Nos. 8 and 8-A
to an extent of 4904 sq.ft., in Ayyapakkam Village, Thiruvallur District in the year 1992.
The Zonal Assistant Tahsildar has also issued patta in the name of the petitioner in his proceedings dated 02.09.1996. Ever since the date of
purchase, the petitioner has been in possession and enjoyment of the said lands. The petitioner was employed in Muscat, Sultanate of Oman,
however, his family was taking care of the above said lands. When the petitioner visited his property in the month of February 2007, he was
surprised to see a massive H.T. Electrical tower erected in the centre of his land thereby both the plots became unusable. When the petitioner
orally complained about the erection of the tower in his land, the first respondent informed that the same was erected as per the approved scheme
under the Electricity Supply Act which was also notified in the official gazzette u/s 28(3) of the Electricity Supply Act, 1948 on 01.08.2001.
Challenging the same, the petitioner has filed WP No. 11347 of 2001 in which the respondents filed their counter stating that by virtue of Section
42 and 51 of the Indian Electricity Supply Act, 1948, the Board has the power to dispense with the provision of Electricity Act, 1910 and lay
posts, cables and wires on any property without getting consent of the owner or occupier. According to the petitioner, the said Section 42 of the
Indian Electricity Supply Act provides arbitrary, unguided, blanket, sweeping powers to the respondents to use the property of others without even
getting their consent, hence, the same is illegal and unconstitutional, besides that it is violative of Article 300-A of the Constitution of India.
7. Mr. V. Selvaraj and Mr. Srinivas, learned Counsel for the petitioners submitted as follows:
The impugned notification dated 01.08.2801 declares that it has been issued for the information of the public as required u/s 28(3) of The
Electricity (Supply) Act, 1948, hereinafter referred to as ""the Act, 1948"" and called upon the interested persons to make their objections within
two months from the date of publication as contemplated u/s 29(2) of the Act 1948. The petitioner in all these writ petitions are admittedly
interested as well as affected persons by the said scheme because the High Tension Over Head lines are intended to be drawn across the property
of the petitioner in WP No. 9426 of 2005 and a tower was already erected in the lands of the petitioner both in WP Nos. 11347 and 16429 of
2007. The impugned notification does not mention the route though there is a column specifically provided for the same, which was left blank.
Unless the route is mentioned, no useful purpose will be served by the notification either as a general information to the public or calling for
objections from interested persons. The averment mentioned in the counter against the petitioner in WP No. 9426 of 2005 as to the date of
construction of the church does not have any material bearing on the merit of the case. The notification issued shall contain reference to the area,
otherwise, no purpose would be served in informing the interested persons as to whether their lands be affected or not, hence, it amounts to
depriving of their right from making their representation. Non-furnishing of the route in the notification amounts to exclusion of principles of natural
justice and the exigencies that can legally warrant exclusion of principles of natural justice do not exist in this case as held by the Honourable
Supreme Court in The State of Maharashtra and Another Vs. The Jalgaon Municipal Council and Others, . The notification should be justified or
defended only from the grounds stated therein and it cannot be justified or defended through explanation contained in an affidavit as held by the
Apex Court in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, . The respondents attempted to
compare the impugned notification with their alleged prior notification in proceedings No. 116 dated 29.06.2000. The respondents contended that
only Section 28(3) of the Act is applicable and not Section 29(2) however in the impugned notification both Section 28(3) and 29(2) of the Act
were found mentioned which exhibits the non-application of mind of the respondents and consequently the impugned notification is vitiated as has
been held in (1998 (7) SCC 353 @ 354). The impugned notification does not contain any recital or reference of Section 42 of the Act, 1948
besides that any notification takes effect only from the date of notification unless otherwise specifically provided as held in S.K. Shukla and Others
Vs. State of U.P. and Others, What is published in the gazzette is a final form and substance of the scheme, but when there is no reference to
Section 42 of the Act, then the provisions of Section 42(1) will not apply as held in (1996 (6) SCC 634). Therefore, Section 42 can be invoked
only if it is found mentioned in the scheme published in the gazzette. It is further submitted by the learned Counsel for the petitioner that a conjoint
reading of Section 42 of the Act and its proviso would make it clear that notwithstanding anything contained in Sections 12 to 16 and 18 and 19 of
the Indian Electricity Act, 1910 but without prejudice to the requirements of Section 17 of that Act, 1910 where provision in such behalf is made in
a sanctioned scheme, the Board shall have, for the placing of any wires, poles, wall-brackets, stays apparatus and appliances for the transmission
and distribution of electricity, or for the transmission of telegraphic or telephonic communications necessary for the proper coordination of the
works of the Board, all the powers which the telegraph authority possesses under Part III of the Indian Telegraph Act, 1885 (13 of 1885) with
regard to a telegraph established or maintained by the Government or to be so established or maintained provided that where a sanctioned scheme
does not make such provision as aforesaid, all the provisions of Sections 12 to 19 of the first-mentioned Act shall apply to the works of the Board,
which means that the scheme itself shall contain provisions of Sections 12 to 19 if the scheme does not make such provisions, all provisions of
Section 12 to 19 of the Act, 1910 shall apply to the works of the Board, particularly Section 12(2) of the Act, 1910, which is mandatory for any
works of the Board covered by scheme or not. In this case, the same has not been followed. It is further argued by the learned Counsel for the
petitioner that the respondents took a stand in the counter that by virtue of Section 42 and 51 of the Act, 1948, they have the power to dispense
with the provisions of Act 1910 and lay posts, cables, wires etc, on any property without getting the consent of the owner and if that is the case,
Section 42 of the Act, 1948 gives unguided, blanket, draconian and arbitrary powers to the first respondent to occupy and work on the property
of the other persons, hence, Section 42 of the Act is unconstitutional and null and void besides that it is violative of Article 300-A of the
Constitution of India and prayed for allowing of the writ petitions. In support of his contention, the learned Counsel for the petitioner relied on the
below mentioned decisions:
i) Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, wherein in Para No. 8, it was held thus:
8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by
the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the
beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out....
ii) In the decision of this Court in WP No. 49172 of 2006 etc.,. batch dated 18.01.2007, it was held in Para Nos. 20 and 22 thus:
20. It is no doubt true that all the judgments referred to by either side and discussed above arose out of the old Electricity Act. After the enactment
of the Indian Electricity Act, 2003, the earlier provisions relating to Schemes etc. no longer hold the field. But however, the Indian Telegraph Act
remains unchanged and therefore, the provisions of the Indian Telegraph Act cannot be wished away. Moreover, as we have seen already, the
authorization given u/s 164 of the Act conferring powers on the licensee may be an absolute authorization or it could be a qualified or a modified or
a limited authorization. The authorization granted to the Corporation is subject to their complying with the provisions of the Electricity Act, 2003.
Therefore, the Corporation cannot be heard to say that it can ignore the provisions of Sub-rule (4) of Rule 3. Even if one were to accept that, the
Corporation cannot deny that its powers are limited by Section 16 of the Indian Telegraph Act. Therefore, when there are objections to the laying
of telegraph lines or the erection of transmission towers as the case may be, the Corporation is bound to get the permission of the District
Magistrate.
22. ...However, it is the jurisdiction of the District Magistrate to consider the objections, and it will be possible for the objector as well as the
Corporation to explain before the District Magistrate the manner in which the land lies and prove either that the erection of the transmission towers
is improper or that the erection of the towers has been done in the optimum manner possible and that there could be no other way of doing it.
iii) Surat Singh Vs. Municipal Corporation of Delhi, , wherein the Delhi High Court, in Para No. 13, it was held thus:
13. ...The act of fixing poles and laying overhead electric lines in view of the resistance offered by the plaintiff and without there being any
permission of the District Magistrate was obviously unauthorised. I would not say if the defendant committed either civil or criminal trespass on the
land of the plaintiff but they certainly exceeded their powers when they purportedly acted under Sections 10 and 16 of the Telegraph Act.
8. Mr. Viduthalai, learned Advocate General appearing for the respondents/TNHB submitted as follows:
In the impugned notification it is mentioned that a scheme was sanctioned and the same was published u/s 28(3) of the Act 1948 and interested
persons were called upon to submit their objections within a period of two months as per Section 29(2) of the Act on such scheme. u/s 28 of the
Act, 1948, the Board is empowered to frame a scheme relating to establishment or acquisition of generating station, sub-station or transmission
line. The scheme sanctioned by the Board be forwarded to the authorities for concurrence and every sanctioned scheme shall be published in the
official gazzette or in such local newspapers as the Board deems it necessary. Under the scheme of the aforesaid provisions, there is no scope for
giving any opportunity to any member of the public to object to the scheme, however, the publication in the official gazzette and in the local
newspapers is only to inform the public that a scheme has been sanctioned by the Board. u/s 29 of the Act, 1948, every scheme estimated to
involve a capital expenditure exceeding such sum as may be fixed by the Central government from time to time, by notification in the official
gazzette, shall, as soon as may be after it is prepared, be submitted to the authority for its concurrence. Before finalisation of any scheme and the
submission thereof to the Authority for concurrence, the Board shall cause such scheme, which among other things shall contain the estimates of the
capital expenditure involved, salient features thereof and the benefits that may accrue therefrom, to be published in the Official Gazette of the State
concerned and in such local newspapers as the Board may consider necessary along with a notice of the date, not being less than two months after
the date of such publications, before which licensees and other persons interested may make representations on such scheme. It is also obligatory
on the part of the Board to consider the representation and also make such enquiry as it may deem it fit and then modify the scheme and the
scheme so finalised and prepared (with or without modification) shall be submitted to the authority along with their representations. Thus, u/s 28 of
the Act, 1948, publication has to be made after the scheme is sanctioned, whereas, u/s 29 of the Act, scheme has to be finalised only after
publication is made in the official gazzette. Therefore, in respect of schemes which do not come u/s 29, but comes u/s 28, there is no need to hear
the interested persons before finalising the scheme. Merely because the Board has mentioned in the notification that, any persons interested may
make representation on the above scheme within two months from the date of publication as per Section 29(2) of the Act, 1948 it does not mean
that the present scheme framed by the Board falls u/s 29. The Board indeed extended the benefit of Sub-section (2) of Section 29 of the Act even
though the Board is not legally obliged to do so. It does not mean that the objections so received will have to be forwarded to the Central
Electricity Authority and thereafter the scheme has to be granted. The electricity board in its earlier proceedings No. 116 dated 29.06.2000
categorically mentioned in unambiguous terms that the Board would exercise the powers of the Telegraph Authority under the provisions of
Section 42 of the Act, 1948 and shall not be bound by the provisions of Section 12 to 16, 18 and 19 of the Act, 1910. Section 42 of the Act
1948 requires that the Board has to provide sanctioned scheme and it will have all the powers which the Telegraphic Authority possesses in Part
III of the Indian Telegraph Act, 1885 (13 of 1885) and in that event, the provisions of Sections 12 to 16, 18 and 19 of the Act, 1910 will not
apply. The Board, while approving the proposal for establishment of 400/230-110 KV sub-station at Alamathi near Chennai has made it very
clear that it will exercise the powers of the Telegraph Authority u/s 42 of the Act, 1948 and it shall not be bound by the provisions of Section 12 to
16, 18 and 19 of the Act, 1910. Since the sanctioned scheme contains the provisions to the aforesaid effect, non-mentioning of the same in the
paper publication will not vitiate the scheme. In the notification itself, it is stated that the Board has sanctioned a scheme, hence, the Board is
entitled to exercise its powers conferred under the Indian Telegraphic Act under Part III. In the land of the writ petitioner in WP No. 9426 of
2005, overhead transmission line is being drawn about 14 meters in height and goes upto 50 meters vertically from the ground level and that no
tower is going to be erected in the said lands. Even the transmission line which is to be drawn, is being drawn above the open space near the
compound wall. The averments that in the paper publication, the route through which the transmission line to be drawn has not been mentioned and
the same vitiate the scheme is without any substance. There is no need to mention the transmission route in the paper publication or in the official
gazzette, however, due to oversight, in the gazzette publication, a separate column under the head ''route'' has been mentioned in the English
version. What is required to be mentioned is only the route line in kilometers. The words ''route length'' has been split into two and a separate
heading as ''route length in Kilometers'' has been given. In the gazzette publication in Tamil, there is only one column showing the route length in
kilometers is mentioned. In this case, the sanctioned scheme satisfies all the requirements contemplated u/s 42 of the Act; that there is no need for
concurrence from the central electricity authority, New Delhi since the capital cost of the sanctioned scheme is less than Rs. 250 crores. The
Petitioner in WP No. 9426 of 2005 has made a false statement that the church was constructed in the year 2001, whereas, possession of the land
was handed over to it by the Housing Board only on 25.07.2002. So far as the averments in WP No. 16429 of 2007 which is filed seeking a writ
of declaration to declare Section 42 of the Act as unconstitutional and null and void is concerned, it is nothing but a misconception. The object and
reasons for providing such power to the Board is that Section 42 gives the Board the powers of Telegraphic Authority in respect of placing of
transmission apparatus in circumstances where its powers as a licensee under the Act, 1910 would not be adequate for the purpose. In particular,
the powers of the Telegraphic Authority might be required when laying transmission lines across long stretches of our country, but these powers
cannot be used in respect of any particular lines unless such use has been specified in a sanctioned scheme in connection with the line. The
allegation that Section 42 provides arbitrary, blanket and sweeping powers to the authorities is concerned, such powers are given only for the
purpose of facilitating quick generation and distribution of electrical energy and it cannot be said that the officers, licensees and other persons will
act without any guideline or control from the statutory authority. In the present case, the scheme was sanctioned by the Board after taking
extensive survey to collect data relating to environmental consideration, road crossing, power line crossing, tele communication line crossing,
protected forests, villages, bulk storage oil tank, oil pipe line, Airports, cluster of hutment and other factors as such the allegation that the power
given to the Board u/s 42 is arbitrary is contrary to the decision of this Court in 1994 WLR 445. The averment that Section 42 of the Act is
violative of Article 300-A of the Constitution of India is incorrect. The Board will exercise the power u/s 42 of the Act by taking adequate steps to
cause no damage to the property concerned and if any damage is caused, the owner is entitled to compensation only. The Board while drawing
over head lines, is only placing electricity poles in other man''s property and not acquiring any right over the same. The purpose for which the
power is being exercised by the Board is a public purpose, hence, it does not offend Article 300-A of the Constitution of India and prayed for
dismissal of the writ petitions. In support of his contentions, the learned Advocate General relied on the below mentioned decisions:
i) Maharashtra State Electricity Board Vs. Janardhan Bhausaheb Desai and Another, wherein in Para-8, the Bombay High Court held thus:
8. ...The schemes can be framed for generating stations, tie lines, service stations, transmission lines or establishments. Section 28 cannot be said to
contemplate that while sanctioning scheme its implementation should also be charted therein. The execution and implementation of the scheme
arises after it has been framed and sanctioned in accordance with law. Section 28 speaks of preparation and sanction of schemes for various
purposes detailed thereunder. The finalisation of the route map at the time of the framing of the scheme or its sanction is not a condition precedent
for a valid and legal scheme u/s 28 and even if route map has not been prepared at the time of preparation of the scheme or not finalised at the time
of grant of sanction of scheme, such scheme is not invalidated. Many a time it may not be possible to finalise the route map of the transmission line
at the time of finalisation of scheme. Section 28 does not provide the matters to be considered by the Board or generating company as the case
may be while sanctioning the scheme. However, regarding the schemes involving the capital expenditure exceeding such sum as fixed by the
Central Government, concurrence of Central Electricity Authority is required and Section 30 provides the matters to be considered by such
Authority before granting concurrence. The matters specified in Section 30 gives fair idea of relevant aspects for consideration by Central
Electricity Authority and the said aspects may also supply relevant consideration for preparation and sanction of scheme by Board as well.
Finalisation of route map for transmission line is certainly not one of such matters. In the present case, the plaintiffs-owners'' grievance is that the
EHVT route prepared by the Board did not pass through suit Gat. No. 165 but it was proposed through Gat No. 166 and therefore erection of
tower No. 45 in the suit land was illegal and unauthorised. It may be observed here that plaintiffs have not sought any declaration in the suit that
scheme framed by the Board was illegal. The route map of EHVT line prepared by the Board cannot be said to be integral part of the scheme
framed u/s 28 and the said route map only related to its execution and implementation part which was open to variation.
ii) (M. Nithyanandam and 2 Ors. v. The Chairman, Tamil Nadu Electricity Board and Ors.) 1994 Writ Law Reporter 445 wherein this Court held
in Para No. 27 thus:
27. In the light of the non-obstante clause in Section 42, excluding in categoric terms the applicability of Sections 12 to 16, 18 and 19 of the Indian
Electricity Act, 1910, in any considered opinion, it is not open to the petitioners to rely on Section 12 of the Indian Electricity Act, 1910. As stated
above, the petitioners strongly relied on the decision reported in 1959 (II) MLJ 446. In that case, Basheer Ahmed Sayeej, J was pleased to deal
only with the scope of Section 12. The scope of Section 42 was apparently not brought to the notice of the learned Judge. Therefore, the
petitioners herein cannot call in aid the said decision.
iii) (E. Venkatesan and Ors. v. The Chairman, Tamil Nadu Electricity Board and Ors.) 1997 Madras 64, wherein, this Court in Para No. 19 held
as follows:
19. From the above settled position of law, it is clear that when the Electricity Board exercises power u/s 51 of the Electricity Act read with
Section 10 of the Telegraphs 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.
20. In this case, the fact that there was a notification in 1961 is not a matter in dispute. Subsequently, proceedings have been issued by the first
respondent 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 Indian Electricity Act, 1910. In view of the notification and also the approved scheme, no argument can be put forward by the
petitioners that the officers of the Electricity Board are not entitled to enter upon the property or to draw the electric line. Once the power under
the Telegraphs 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 it is required under law.
iv) (A.R.A.S. Duraisamy Nadar v. Tamil Nadu Electricity Board, rep. By its Superintending Engineer, Tuticorin) 2001 (4) CTC 129 wherein this
Court held in Para No. 3 as follows:
3. ...Under Section 42 of the Electricity Supply Act, the Board has got the power for placing any wire, poles etc., etc., for distribution of electricity
notwithstanding anything contained u/s 12 to 16, 18 and 19 of the Indian Electricity Act. In so doing the Board is authorised to exercise all the
powers which the Telegraph Authority possess under Part 3 of the Indian Telegraph Act, 1985. Reading the provisions given above together, it is
clear that the board''s power to install a transformer in respect of a private land is absolute and subject to in so doing they do not cause any
damage to the property concerned, and even if damage is likely to be caused to that property, the land owner is only entitled to compensation....
v) In the decision reported in (The Superintending Engineer, TNEB General Construction and Ors. v. Thangaprakasam) 2001-1-Law Weekly
556, this Court held in Para No. 3 thus:
3. In the context of the arguments advanced by the learned Counsel on either side, I perused the order under challenge. There is a sanctioned
scheme dated 25.06.1990 and the said scheme is for establishing Gummidipoondi 230-110 KV Sub Station and additional work at
Gummidipoondi 110 KV Sub Station and Panjotty 110 KV Sub Station. The estimated cost of said scheme is fixed at Rs. 1028 lakhs. The
scheme empowers the Board to exercise the powers of the Telegraph Authority under the provisions of Section 42 of the Electricity Supply Act
and the Board shall not be bound by the provisions of Sections 12 to 16, 18, 19 of the Indian Electricity Act, 1910. Section 42 of the Electricity
Supply Act specifically empowers the Board, notwithstanding anything contained in Sections 12-16, 18 & 19 of the Indian Electricity Act, 1910
but without prejudice to the requirements of Section 17 of that Act, where provision in such behalf is made in a sanctioned scheme, to place any
wires, poles, wall brackets, etc. for the transmission and distribution of electricity of the towers which the Telegraph Authority possesses under
part 3 of the Indian Telegraph Act, 1985. Therefore, the requirement of getting consent of the owner of the property before the work can be
commenced as provided for under the Indian Electricity Act is dispensed with u/s 42 of the Electricity Supply Act.
9. This Court carefully considered the argument of the counsel on both sides and the records are perused. The respondents/Board stated that it has
approved the proposal for establishment of 400 KV SS at Alamathi, near Avadi in Chennai/West EDC in Chennai Region at an estimated cost of
Rs. 14,895.24 lakhs gross and net and prepared a scheme as contemplated u/s 28 of the Act, 1948 and sanctioned it, which was published in the
Tamil Nadu Government Gazzette on 01.08.2001 as well as in local newspaper u/s 28(3) of the Act 1948. The respondents Board has further
contended that in view of the scheme, it exercised all the powers of Telegraphic Authority vested in it as provided u/s 42 of the Act, 1948 hence, it
is not bound by the provisions of Section 12 to 16, 18 and 19 of Act, 1910.
10. The case of the petitioners is that the respondents/board surprisingly attempted to draw transmission lines/erected high tension electric towers
in their property and on enquiry, they came to know that the same was being done as per the alleged approved scheme and the same also ratified.
It is contended by the petitioners that the impugned notification is not in accordance with law, hence, the same is liable to be quashed. Challenging
the said notification dated 01.08.2801, WP Nos. 9426 of 2005 and 11347 of 2007 were filed seeking to quash the same. The Petitioner in WP
No. 11347 of 2007 also filed WP No. 16429 of 2007 challenging the validity of Section 42 of the Act, 1948.
11. Notification means an instrument, by publishing which in the official gazzette or otherwise, the authorities, in exercise of some power conferred
by statue, is brought to the notice of the public. Where the giving of such notification is required by the relevant statue expressly or impliedly, such
condition is construed by the Court as mandatory and in default, the resultant order is invalidated, apart from the general principles or natural
justice. Notification implies formal announcement of a legal relevant fact. A notification published in an official gazzette means a notification
published by the authority of law. It is a formal declaration and publication of an order and shall have to be in accordance with the declared
policies. The notification shall have effect only from the date when it is published in the official gazzette.
12. Sections 12 of Act, 1910, Sections 28, 29 and 42 of the Act, 1948, are relevant for the case on hand which are mentioned below:
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 and 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.
(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
done lawfully laid down or placed by such licensee;
Provided that any support of an overhead line or any stay or strut required for the sold 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.
(3) When making an order under Sub-section (2), the District Magistrate or the Commissioner of Police, as the case may be, shall fix the amount
of compensation or of annual rent, or of both, which should in his opinion be paid by the licensee to the owner or occupier.
28 (3) of The Electricity (Supply) Act, 1948:- Every scheme sanctioned under this Section shall be published in the Official Gazzette and in such
local newspapers as the Board or, as the case may be, the generating company may consider necessary.
29 (2) of The Electricity (Supply) Act, 1948: Before finalisation of any scheme of the nature referred to in Sub-section (1) and the submission
thereof to the Authority for concurrence, the Board or, as the case may be, the generating company shall cause such scheme, which among other
things shall contain the estimates of the capital expenditure involved, salient features thereof and the benefits that may accrue therefrom, to be
published in the Official Gazette of the State concerned and in such local newspapers as the Board or the generating company may consider
necessary along with a notice of the date, not being less than two months after the date of such publications, before which licensees and other
persons interested may make representations on such scheme.
Section 42 of The Electricity (Supply) Act, 1948:- Powers to Board for placing wires, poles etc., - (1) Notwithstanding anything contained in
Sections 12 to 16 and 18 and 19 of the Indian Electricity Act, 1910 (9 of 1910) but without prejudice to the requirements of Section 17 of that
Act where provision in such behalf is made in a sanctioned scheme, the Board shall have, for the placing of any wires, poles, wall-brackets, stays
apparatus and appliances for the transmission and distribution of electricity, or for the transmission of telegraphic or telephonic communications
necessary for the proper co-ordination of the works of the Board, all the powers which the telegraph authority possesses under Part III of the
Indian Telegraph Act, 1885 (13 of 1885) with regard to a telegraph established or maintained by the Government or to be so established or
maintained:
Provided that where a sanctioned scheme does not make such provision as aforesaid, all the provisions of Sections 12 to 19 of the first-mentioned
Act shall apply to the works of the Board.
(2) A generating company may for the placing of wires, poles, wall-brackets, stays apparatus and appliances for the transmission of electricity, or
for the transmission of telegraphic or telephonic communications necessary for the proper co-ordination of the works of the generating company,
exercise all or any of the powers which the Board may exercise under Sub-section (1) and subject to the conditions referred to therein.
13. Section 28 says that for the efficient performance of duties of the Board or a generating company, which prepare one or more schemes relating
to the establishment or acquisition of generating stations, substations etc.,. Every scheme sanctioned u/s 28 shall be published in the official gazzette
in such local newspapers as it deem necessary. If the scheme is of the nature referred to in Sub-section (1) of Section 29, the scheme shall not be
sanctioned by the Board or generating company except with the previous concurrence of the authority. Under Sub-section (2) of Section 29,
before finalisation of any scheme and the submission thereof to the Authority for concurrence, the Board shall cause such scheme containing the
estimates of the capital expenditure involved, salient features thereof and the benefits that may accrue therefrom, to be published in the Official
Gazette of the State concerned and in such local newspapers as it deem necessary along with a notice of the date, not being less than two months
after the date of such publication, before which licensees and other persons interested may make representations on such scheme. In this case, it is
stated by the respondents that the scheme prepared is less than Rs. 250 crores, hence, concurrence of the authority u/s 29 of the Act, 1948 is not
required.
14. In the notification, the respondents, though mentioned the scheme is published u/s 28(3) of the Act, 1948, it invited objections u/s 29(2) of the
Act from the interested persons. The said act of the respondents/Board exhibits that they are not certain whether the notification has been issued
u/s 28 or 29 of the Act, 1948. The respondents relied upon the proceedings dated 29.06.2000 to say that in respect of the said scheme, the
Board would exercise power of the telegraph authority under the provisions of Section 42 of the Act, 1948 and shall not be bound by the
provisions of Section 12 to 16, 18 and 19 of the Act, 1910. As rightly pointed out by the learned Counsel for the petitioners, the said proceedings
are internal communication and it cannot be treated as part of the impugned communication. What are all stated in the impugned notification alone
is relevant and its validity must be judged by the contents so mentioned and cannot be supplemented by other reasons. In support of this
contention, the petitioners relied on the decision reported in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi
and Others, mentioned supra. Moreover, in the impugned notification, the said proceedings dated 29.06.2000 of the respondents has not been
referred to. On the contrary, Section 29(2) of the Act, 1948 was referred to and representation of intended parties are invited. Any notification in
exercise of a statutory authority cannot be construed in the light of explanation given by the said authority making the order what it meant or what
was in its mind or what he intended to do. Public notification made by authorities are meant to have public effect and are intended to affect the
acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used therein. Followed
Commissioner of Police, Bombay Vs. Gordhandas Bhanji, . In the notification, the route or village through which lines are to be drawn also not
found mentioned and in such circumstances, the owners of land cannot be expected to make their objections or readiness to meet the situation.
Discrepancies in the Tamil and English version of the notification further affects the validity of the same.
15. In this backdrop, when we further look into the notification, it can be seen that Section 42 of the Act, 1948 is conspicuously absent. Section
42 empowers the Board to exercise the power u/s 10 of the Indian Telegraph Act, 1910, in such event, it need not follow Sections 12 to 16, 18
and 19 of the Act, 1910. The proviso to Section 42 specifically states that where a sanctioned scheme does not make any provision, all the
provisions of Sections 12 to 19 of the Act, 1910 shall apply to the works of the Board. It is also not explained as to whether the provisions u/s 12
to 19 of the Act, 1910 was made. In this context, non-mentioning of Section 42 of the Act, 1948 in the impugned notification assumes importance
and the respondents Board cannot avail protection under the said Section 42 of the Act, 1948. Any act as mentioned in Sub-section (1) of Section
42 is not made in that behalf, the powers under Part III of the Indian Telegraphic Act, 1885 cannot be exercised. Admittedly, the towers were
erected in the lands of the petitioners in WP Nos. 11347 and 16429 of 2007, overhead lines were attempted to be drawn across the property of
the petitioner in WP No. 9426 of 2005, hence, the act of the Board is unauthorised as the provisions of Section 12 to 19 of the Act, 1910 have
not been complied with. The petitioners have resisted and obstructed the act of the respondents/Board, besides that the filing of the writ petitions
themselves amount to resistance. Moreover, the order of the District Magistrate, as contemplated u/s 16(1) of the Act also not obtained, hence, at
this stage, the provisions for payment of compensation u/s 12(3) of the Act, 1910 and Section 10(d) of the Indian Telegraphic Act, 1885 for the
unauthorised construction of tower on the petitioners land in both the WP Nos. 11347 and 16429 of 2007 cannot be invoked.
16. The judgment relied on by the respondents are not applicable to the facts and circumstance of the case on hand, since, in the said cases, the
notifications were not challenged, but in the case on hand, the notification itself is challenged.
17. In view of the above said discussion, it is not difficult to hold that the impugned notification is invalid, hence, the same is quashed in so far as the
petitioners are concerned. The writ petitions Nos. 9426 of 2005 and 11347 of 2007 are allowed. No costs. The respondents are directed to
remove the towers, pillars, poles, appliances erected on the property of the petitioners within a period of eight weeks from the date of receipt of a
copy of this order.
18. The petitioner in WP No. 11426 of 2007 seeks for a declaration to declare that Section 42 of the Electricity Supply Act as unconstitutional
and ultravires. The averment of the petitioner is that Section 42 of the Act, 1948 provides arbitrary, unguided, blanket and sweeping powers to the
authorities to use the properties of others without even getting the land owners consent or affording opportunity or following due process of law.
The Act 1948 provides for rationalisation of production and supply of electricity and generally for taking measures conducive to electricity
development and for all matters incidental thereto. Such supply and use of electrical energy has became a necessity. Power is therefore to be
conferred for the purpose of facilitating generation and quick distribution of supply of electrical energy. In a sanctioned scheme for transmission and
distribution of electricity, the Board has absolute powers u/s 42 to proceed with installation of electrical posts, towers etc., to draw high tension
wires. The action of the Board is in larger interest of public to have undisturbed power supply. The Board, while exercising power u/s 51 of the
Act, 1910 read with Section 10 of Indian Telegraph Act, 1885, are not acquiring any land, they only make use of the land for the purpose of laying
electrical lines. Section 42 does not confer power to the authorities without any guidelines or control from the statutory authorities as alleged. For
the purpose of electricity generation and supply, lines are being drawn across the State and Country, over the properties, buildings and other
structures. If the scheme is prepared, sanctioned and published, the Board is empowered u/s 42 of the Act, 1948 to exercise the powers of
Telegraphic Authority under the Indian Telegraphic Act and that provisions of Sections 12 to 19 of Act, 1910 are not required to be followed.
Before sanctioning any scheme, the authorities are taking extensive surveys to collect data regarding environmental consideration, road crossing,
power line crossing, tele communication line crossing, protected forests, villages, bulk storage oil tank, oil pipe line, Airports, cluster of hutment
etc., The proviso to Section 42 specifically states that where a sanctioned scheme does not make any provisions as provided in Sub-section 1, all
the provisions of Section 12 to 19 of the Act, 1910 shall apply to the works of the Board. From that proviso, it is clear that so long as provision of
placing, maintaining or taking wires, polls, appliances for the transmission and distribution of electricity as mentioned in Sub-section (1) of Section
42 is not made in that behalf, the powers under Indian Telegraphic Act will not be available and the provisions of Section 12 to 19 of the Act,
1910 shall apply to the works of the Board. Thus, necessary protection is made in Section 42 itself to the land owners. From a joint reading of
Section 42 read with Section 16 of Indian Telegraph Act, 1885, it is further clear that necessary provision is made available for payment of
compensation, mode of fixation of compensation. In respect of dispute of sufficiency of compensation, reference to the District Judge, within
whose jurisdiction the property is situate is provided. In the event of any resistance by the land owners and others, the authorities are directed to
approach the District-Magistrate u/s 16(3) of Indian Telegraph Act, 1885. Thus, necessary mechanism is provided in Section 42 itself to protect
the interest of the land owners and others, who are aggrieved by the action of the Board, hence, the averment of the petitioner that Section 42 of
the Act, 1948 provides arbitrary, unguided, blanket and sweeping powers to the authorities are unfounded and this Court is of the view that
Section 42 of the Act, 1948 is valid, hence, WP No. 11426 of 2007 is devoid of merits, liable to be dismissed and accordingly, it is dismissed. No
costs. Consequently, connected miscellaneous petitions are closed.
