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2004 DIGILAW 31 (AP)

Sai Surya Gardens Pvt. Ltd. v. Union of India, Ministry of Energy, New Delhi

2004-01-09

DEVENDER GUPTA, G.ROHINI

body2004
DEVINDER GUPTA C. J. ( 1 ) PETITIONER, claiming to be the owner of lands in S. Nos. 163, 164 and 216 of edulabad Village, Ghatkesar Mandal, Ranga reddy District on the basis of sale deeds dated 26/07/1998 and 24/09/1998 has filed this petition challenging the provisions of Section 164 of the Electricity act, 2003 (for short the Act ) Insofar as it seeks to vest power under Sections 12 to 18 of the Indian Telegraph Act, 1885 as unconstitutional and ultra vires the constitution with special reference to articles 14, 21 and Article 300-A of the constitution of India and consequently prayed to hold that the respondents are not entitled to lay any high tension lines across the lands of the petitioner. ( 2 ) PETITIONER states that in August, 2002 some officials from the 2nd respondent-Corporation visited his farmyard and started marking yellow paints. They stated that they would lay a power line across the land of the petitioner. Aggrieved by this action petitioner states that in case power lines are laid across his landed property, the land would likely to become useless and barren. Petitioner appears to have sent a representation in September, 2002 objecting to the laying of new high tension line across his land and requesting the authorities to stop the same. It is alleged that on 25th october, 2002, respondents replied that they cannot change the line alignment and only compensation would be paid for the trees that are likely to be cut when the power line is laid. In this back ground petitioner challenged the provisions of Section 164 of the Act on the ground that no procedure has been followed and Respondents want to act in highhanded manner thereby causing loss to the petitioner s property and almost depriving them from using and enjoying the property and such an action by the respondents is hit by Articles 14, 21 and 300-A of the Constitution of India. It is also stated that the respondentss cannot unilaterally decide the issues to the detriment of the land owners more specifically when the petitioner in the past has co-operated and aligned their lands in such a way as not to cause any loss or obstruction to the high tension lines though there was considerable loss to the petitioner. It is also stated that the respondentss cannot unilaterally decide the issues to the detriment of the land owners more specifically when the petitioner in the past has co-operated and aligned their lands in such a way as not to cause any loss or obstruction to the high tension lines though there was considerable loss to the petitioner. ( 3 ) WRIT Petition has been opposed by respondents on affidavit stating that respondents are acting in accordance with law. It is vehemently argued that the provisions of Section 164 of the Act are not violative of any of the provisions of the constitution of India. In a nutshell respondents have stated that the corporation is entitled to exercise all powers vested in a Generating Company under the electricity (Supply) Act, 1948 for the purpose of implementation of sanctioned Schemes. Reference has been made to various provisions of the Electricity Supply Act saying that for implementation of sanctioned scheme, the licensee is entitled to exercise all the powers available to the authorities under the Indian Telegraph Act 1885. It is stated that in compliance with Section 28, 28 (1) and 28 (2) of the Electricity (Supply) act, 1948, the Scheme relating to. "transmission System associated with remagundam Stage III was notified in the a. P. Gazette No. 15, dated 27/01/2000, whereunder notice was given that persons interested may make representation in respect of the above scheme within two months from the date of publication and that no representation would be considered thereafter. In spite of providing two months time for making representations no representation was submitted objecting to the scheme. Even the petitioner did not choose to submit any representation. Thereafter, a preliminary survey was conducted to determine the route alignment in March, 2001. Again, in May 2001, a detailed survey was conducted, estimates were prepared, tenders were called for and work was awarded for erection of towers and stringing of wires for transmission of electricity. It is further stated that under various provisions of the Electricity (Supply) act, 1948 the respondent-Corporation is entitled to lay transmission lines subject only to condition that in case damage to trees occurs compensation would be paid and the same was informed to the petitioner. Petitioner was duly informed that corridor available for this line is very limited due to its proximity to the Hyderabad Sub-Station and the other lines. Petitioner was duly informed that corridor available for this line is very limited due to its proximity to the Hyderabad Sub-Station and the other lines. Therefore there was no possibility of changing the alignment. ( 4 ) SECTION 28 of the Electricity (Supply) act, 1948 deals with preparation and sanctioning of schemes. Section 29 deals with submission of schemes for concurrence of authority. Section 42 empowers the Board for placing wires, poles etc. Section 42 says that all the powers which the telegraph authority possesses under Part-Ill 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 can be exercised by the Board. A Generating Company may for placing of wires, poles etc. , exercise all such powers which the Board may exercise under sub-section (21) of Section 42. Sections 12 to 19 of the Indian Telegraph act, 1885 are in Part-Ill. Section 10 gives power for Telegraph authority to place and maintain a telegraph line under, over, along or across and posts in or upon any immovable property. Section 11 empowers the telegraph authorities to enter on property in order to repair or remove telegraph lines or posts. Section 16 deals with exercise of powers conferred by Section 10 and disputes as to compensation in case of property other than that of a local authority. It says that if the exercise of the powers mentioned in Section 10 in respect of property referred to in Clause (d) of that section is resisted, the District Magistrate may, in his discretion order that the telegraph authority shall be permitted to exercise them. The said provision also deals with assessment of compensation and resolution of disputes in case parties do not agree as regards the quantum of compensation to be paid. Section 164 of the electricity Act, 2003 which is now under challenge by the petitioner reads:164. The said provision also deals with assessment of compensation and resolution of disputes in case parties do not agree as regards the quantum of compensation to be paid. Section 164 of the electricity Act, 2003 which is now under challenge by the petitioner reads: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 telegraph lines and posts for the purposes of a telegraph established or maintained, by the Government or to be so established or maintained. " ( 5 ) THERE is no doubt that the scheme was duly published and objections were invited. Learned counsel for the petitioner submits that objections were invited from the licensee and from the general public. Such submission has no substance inasmuch as the notification has been duly published in the A. P. Gazette on 27/01/2000 clearly inviting general public to raise objections, if any, since in pursuance of the provisions of the Electricity (Supply) Act, 1948, the Power Grid Corporation of India limited shall exercise all powers vested in a board for placing of any wires, poles, etc. , and that the Corporation shall also exercise all powers contained in Part-Ill of the Indian telegraph Act, 1885. The Notification stated that in terms of the provisions contained in section 29 (2) of the Electricity (Supply) Act, 1948, the sanction of the Scheme by corporation was notified to the general public by publication in the official gazette and leading local dailies inviting any licensees or other persons interested to make representation in respect of the above scheme within two months from the date of publication of that notification after which no representation would be considered. ( 6 ) IT is not the case of the petitioner that he is being deprived of the property. ( 6 ) IT is not the case of the petitioner that he is being deprived of the property. His case is that he is likely to suffer damages since he is deprived of the use of the land profitably. Challenge to the provisions is on the ground that the same are ultra vires the provisions of the Articles 14,21 and 300-A of the Constitution of India. It is stated that the petitioner s right to enjoy the property profitably has been deprived of by the unilateral exercise of Power and exercise of such an unbridled power is bad in law. ( 7 ) RIGHT to property is not a fundamental right. The only right which is available to the citizens now is Article 300-A that no person shall be deprived of his property save by authority of law. As noticed, under the provisions of The Electricity (Supply), Act, 1948 read with Indian Telegraph Act, 1885, the petitioner may pray for payment of compensation. ( 8 ) A Full Bench of Kerala High Court in bharat Plywood and Timber Products private Limited v. Kerala State Electricity board, Trivendram after considering the legality and validity of the provisions of the indian Electricity Act, 1910 challenged on the ground that the same are discriminatory held that since Section 51 of said Act empowered the authority to exercise powers available under the provisions of Chapter-Ill of the Indian Telegraph Act, 1885, the provisions are not open for challenge on the ground of discrimination. We are in full agreement with the view expressed by the full Bench and following the said Full Bench decision of Kerala High Court, we hold that the ground of discrimination raised in the instant case falls to ground. Since the respondent-Corporation can exercise enough power to lay transmission lines across the property of the petitioner, except claiming compensation petitioner cannot validly challenge the action of the Board on the ground that it affects his valuable rights. ( 9 ) THE Writ Petition is misconceived and accordingly the same is dismissed. There shall be no orders as to costs. Interim orders granted earlier stand vacated.