Mukundbhai Baldevbhai Patel v. Chief Engineer (Project)
2011-04-22
K.M.THAKER
body2011
DigiLaw.ai
JUDGMENT : K.M. Thaker, J. All the three petitions raise similar and common challenge and involve almost similar facts and contentions. The respondent is also common. Therefore, it is proposed to decide the petitions by present common order. For sake of convenience, facts are drawn from the record of SCA No.3444 of 2011. 2. The petitioner has preferred present petition seeking below mentioned reliefs: "(A) Your Lordships be pleased to issue appropriate writ, order or direction, quashing and setting aside the impugned public notice dated 29.07.2010 published under the Gujarat Government Gazette Part II by the respondent No.l as being without jurisdiction, authority of law, arbitrary and violative or Articles 14, 19 (1) (g) and 21 of the Constitution of India; (B) Your Lordships be pleased to issue appropriate writ, order or direction, quashing and setting aside the action of respondents in seeking to enter in the agricultural land bearing Block No. 76, situated Mouje: Bilasiya, Taluka : Daskroi, District: Ahmedabad and in seeking to make construction thereon as being illegal, arbitrary, null and void, without authority, against the provisions of the Electricity Act, 2003 and also violative or Articles 14, 19 (l)(g) and 21 of the Constitution of India; (C) Your Lordships be pleased to issue appropriate writ, order or direction, declaring that the respondents have no power or authority to enter into the land for the petitioner and to erect any poles thereon in pursuance to impugned public notice dated 29.07.2010 published under the Gujarat Government Gazette Part II, by respondent no.l, in the interest of justice and equity; (D) Your Lordships be pleased to restrain the respondents, their Officers, agents, servants, etc. from entering into the agricultural land of the petitioner being Block No.76 Mouje Bilasiya, Taluka Daskroi, District Ahmedabad and putting up any construction on the same, pending the admission, hearing and final disposal of this petition;" 3. After initial hearing, while issuing notice to the respondent company following order was passed: ".......Issue Notice returnable on 29th March, 2011. In the meanwhile, the officers of the respondents will not take any activity other than the survey and other preliminary works, if require. Direct service is permitted." 3.1. The respondents, in response to the notice issued by the Court after hearing the petitioners, have filed reply affidavit. 3.2.
In the meanwhile, the officers of the respondents will not take any activity other than the survey and other preliminary works, if require. Direct service is permitted." 3.1. The respondents, in response to the notice issued by the Court after hearing the petitioners, have filed reply affidavit. 3.2. Along with the reply affidavit in Special Civil Application No.3444 of 2011, the respondent No.2 company also preferred, as mentioned earlier, a Civil Application being C.A.No.4104 of 2011 under clause( 3) of Article 226 of the Constitution of India and prayed that the interim relief granted vide order dated 16th March, 2011, may be vacated. Operation of the said order was extended from time to time and then on 26th March, 2011 the respondent No.2 company filed the application under Article 226 (3) of the Constitution of India. Subsequently i.e. after the respondent filed said application, the petitioner sought to add/raise some more grounds by amending the petition and for that purpose moved a draft amendment dated 11.4.2011 requesting permission to amend the petition by adding certain grounds and also additional prayer, by adding prayer 8(aa) in the memo of petition. 3.3. The petitioner's request to allow the draft amendment has been opposed by the respondent mainly on the ground that the draft amendment came to be submitted after it filed the aforesaid application under Sub clause (3) of Article 226 of the Constitution of India and the time frame was about to expire. This Court taking note of said objection of respondent No.2 company heard the submissions of all the contesting parties with regard to relief, including interim relief prayed for, and also heard the petition on merits. 3.4.
This Court taking note of said objection of respondent No.2 company heard the submissions of all the contesting parties with regard to relief, including interim relief prayed for, and also heard the petition on merits. 3.4. So far as the respondent's objection with regard to the draft amendment is concerned, it does not deserve to be accepted and/or upheld for diverse reasons, (a) it is necessary to note that the draft amendment was moved before the parties commenced the arguments and before any other or further order could be passed (b) the objection appears to have been raised solely out of apprehension that the petitioner moved draft amendment with a view to compelling the respondent to seek adjournment to respond to the amendment and thereby to frustrate the application under Article 226(3), it would not be justified to reject the draft amendment on account of such apprehension more so when it is moved at the initial stage and when it raises or proposes to add legal contentions and not any major or substantial fact unknown to the respondent (c) having regard to the fact that the petitioners have moved the draft amendment before the admission or disposal of the petition and contentions which are essentially based on provisions of the Act have been raised by way of draft amendment and although additional ground and challenge against the notification dated 5.1.07 has been added on the ground that the petitioners were never aware about the Notification and in the impugned public notice dtd.29.7.2010 there is no reference of the said notification, the petitioner was not aware about and/or in position to incorporate any contention or challenge against the said Notification, this Court is of the view that the draft amendment deserves to be and needs to be granted. Hence, on overall consideration I am of the view that the petitioner should not be denied the opportunity to raise all available contention. Therefore, the draft amendment is granted. Petitioner is allowed to amend the petition so as add ground 4(g) to 4(j) and para:8 (aa). The petitioner shall carry out the amendment. In the meanwhile the amendment is deemed to have been incorporated. 4. The crux of the petition is that the respondent No.2 company has started the preliminary work for laying overhead lines for electricity supply. The project known is as "66 KV Lilo Bilasiya Line".
The petitioner shall carry out the amendment. In the meanwhile the amendment is deemed to have been incorporated. 4. The crux of the petition is that the respondent No.2 company has started the preliminary work for laying overhead lines for electricity supply. The project known is as "66 KV Lilo Bilasiya Line". According to the petitioner, the respondent company has started the work without authority of law and/or in breach of the statutory conditions and without complying with the requirements prescribed by the provisions under the Electricity Act, 2003. The petitioner's grievance against the respondent's action of starting the exercise of laying the said electricity line are, inter alia, that the respondent company does not have authority to lay the electricity line and even if it is assumed that it is so entitled and authorized, the exercise has been undertaken without complying with the statutory conditions. 4.1. On the other hand, the respondent company claims that it is duly authorized to undertake the exercise of laying the said overhead electricity line and it has followed the procedure prescribed by law. However, the procedure which, according to the petitioner should have been followed by the respondent company before and while laying the said overhead electricity line, is, as such, not applicable in view of the relevant statutory provisions. It is further claimed by the respondent company that in any case the work undertaken by the respondent company is of public importance any directions in form of interlocutory order, which may delay the completion of the work, may not be passed. 4.2. On such premise, the petitions are contested by both the sides. 5. The petitioners have come out claiming that the petitioners own certain parcels of agricultural lands. The details regarding the lands owned by the petitioners in each of the petitions are stated in the memo of the petitions. However, since there is no dispute from the side of respondent company regarding the ownership of lands, it is not necessary to record and/or enter into the details regarding the lands and their ownership. 5.1. The petitioner has further alleged that on or around 1st April, 2011 one of the officers of the respondent No.2 company paid visit at the agricultural land of the petitioner.
5.1. The petitioner has further alleged that on or around 1st April, 2011 one of the officers of the respondent No.2 company paid visit at the agricultural land of the petitioner. The said visit was without any notice or intimation and during the conversation with the petitioner the said officer informed the petitioner that the respondent company is going to erect poles for laying 66 KV overhead electricity line which would pass through agricultural land of the petitioners and that therefore poles will have to be erected in the land of the petitioner as well. 5.2 The petitioners have claimed that they had, inter alia, asked for the document/proof authority granted in favour of respondent No.2 company to undertake the work of laying the overhead lines, however, any satisfactory reply was not given/issued by respondent No.2 company, any consent of the land owner has not been asked for and/or obtained by respondent No.2 company and any procedure as prescribed under the Act has also not been followed and that, therefore, the respondent company is not authorized to enter the lands of the petitioners, much less to start the work of laying the overhead electricity lines as is planed by respondent No.2 company. The petitioner, therefore, objected to the entry of the officers of the respondent No.2 company on their lands and since their objection was not paid any heed to by the officers of the respondent company, the petitioners felt aggrieved by the action of the respondent company and filed captioned petitions seeking reliefs quoted hereinabove. Re: Projects involving larger interests of public: 6. At the outset, it deserves to be noted that in its reply affidavit respondent No.2 company has stated the details about the proposed project of laying "66 KV Lilo Bilasiya Line" in this context, under the head "importance of the Public works undertaken by the respondent", the respondent company has stated thus, "The GETCO is undertaking the present project of installation of Lilo Bilasia Line at the estimated cost of L 422 lacs. The need for installation of this line was felt for new substation at Bilasia. For the purpose of laying down the line, survey was undertaken which includes walkover survey from point to point. After receipt of detailed report, route alignment was undertaken on 4th May, 2010. The Executive Engineer, Construction, Nadiad submitted his report to Superintending Engineer, Transmission Circle, Nadiad for his approval.
For the purpose of laying down the line, survey was undertaken which includes walkover survey from point to point. After receipt of detailed report, route alignment was undertaken on 4th May, 2010. The Executive Engineer, Construction, Nadiad submitted his report to Superintending Engineer, Transmission Circle, Nadiad for his approval. Annexed hereto and marked Annexure2 is a copy of report dated 4th May, 2010. On 30th August, 2010, Chief Engineer, Projects, gave route approval. Annexed hereto and marked Annexure3 is a copy of letter dated 30th August, 2010. The office of the Executive Engineer of Respondent No.2 received post facto sanction for laying down above referred line upon certain conditions. Annexed hereto and marked Annexure4 is a copy of the approval from the office of the Chief Electrical Inspector. The petitioner further submits that the above referred project is a very important for giving supply to newly commissioned substation at Bilasia which could further cater to the need of rural areas, residential as well as industrial. In the above sets of circumstances it is submitted that the project is very important from the development point of view of local areas around the substation at Bilasia." (emphasis supplied) 6.1. The aforesaid narration goes to show that the project in respect of which the petitioner has raised grievance is a project of public importance as it aims at installing 66 KV electricity lines for transmission/supply/and distribution of electricity to different areas. In such case the Court would be loath and extremely slow in issuing any order staying, at interlocutory stage, the execution of such work. Re: Granting/continuing injunction against the work: 7. At the outset, it is necessary to note that the respondent company had issued notice about the proposed overhead lines, way back on 29th July, 2010 which is now sought to be challenged by the petitioners in petitions filed on or around 8th March, 2011 i.e. after 7 months. 7.1. Furthermore, the said delay of about 7 months make the request for injunction, blunt and makes it good reason for declining the interim stay. The said aspect is coupled with another equally strong reason viz. that the work to be carried out by the respondent company is of public importance. 7.2.
7.1. Furthermore, the said delay of about 7 months make the request for injunction, blunt and makes it good reason for declining the interim stay. The said aspect is coupled with another equally strong reason viz. that the work to be carried out by the respondent company is of public importance. 7.2. The said two reasons, besides other aspects (which are discussed herein at later stage) are, in the facts of the case, good reasons to not to continue and/or grant any interim injunction against execution of such work. Re: Notice dated 29.07.2010: 8. The petitioners have challenged, in March, 2011, the said notice dated 29.07.2010 the ground that it is issued under i.e. it makes reference of the provisions of repealed Act and that names of the villages where lands are situate and/or their survey numbers are not mentioned thereunder, hence the notice is of no consequence. 8.1. The objection on ground that provisions of repealed Act are invoked, is raised because the respondent no.2 company, vide aforesaid notice dated 29.07.2010, declared that the said notice was issued under section 29 and 42 of Electricity Supply Act, 1948. 8.2. The said objection or contention should not detain the Court any longer inasmuch as it is not in dispute that almost similar provisions are to be found under the Electricity Act, 2003. 8.3. Furthermore mere error in mentioning the provisions of the Act would not invalidate the notice, more so, if the respondent, otherwise also has the statutory powers to undertake the work. Therefore, the said objection or contention is not accepted and is hereby rejected. 9. Now, so far as the second part of the objection is concerned, it is necessary to note that the said notice dated 29.07.2010 has been issued not for one project but for almost 30 different projects/scheme proposed and planned to be undertaken by respondent No.2 company for laying overhead lines in different area in different cities/town. One of the entries in the said notice i.e. the entry at serial no.7 of the said notice reads thus: Sr. No. Name & Brief particulars of the scheme Area of work Estimated capital cost (Rs. in lacs) 07.
One of the entries in the said notice i.e. the entry at serial no.7 of the said notice reads thus: Sr. No. Name & Brief particulars of the scheme Area of work Estimated capital cost (Rs. in lacs) 07. Erection of 66 KV LILO line to proposed 66 KV Bilasiya S/S Form 66 KV Barejadi - Vehlal line on D/C Tower with ACSR panther conductor and establishment of 66 KV Bilasiya S/S - 6.823 KM Area around and between villages Balda, Pethor, Jhank, Ta. Daskroi, District Ahmedabad 422.00 9.1. With reference to the said Notice, the petitioner in Special Civil Application No.3443 of 2011 has stated that his lands (in respect of which he has raised objection and preferred present petition) is situate at Mouje Navrangpura, Tal. Daskroi, Dist. Ahmedabad, while the petitioner in Special Civil Application No.3982 of 2011 has claimed that his lands in respect of which the grievance is made in the petition are situate at Mouje Kathwada, Tal. Daskroi, Dist. Ahmedabad. Both the petitioners have claimed that the area where their lands are situate are not mentioned in the notification. So far as the petitioner in Special Civil Application No.3444 of 2011 is concerned, such grievance is not raised and it is admitted position that his lands are situate in the area which stands covered in the entry at Sr.Nso.7. Thus, as per the stipulation by the learned counsel for the petitioners, the said objection is available with regard to the petitioners of other two petitions being Special Civil Application No.3443 of 2011 and Special Civil Application No.3982 of 2011. 10. The contention is that the respondent can not undertake the work in the area which are not included mentioned in the Notice dtd.29/7/05. 10.1. In this context it is pertinent to note that in view of the fact that in all entries in respect of all area the phrase used in the said Notice is "area around and between.....", and the names of all villages or any specific area or specific survey numbers through which the line is to be laid i.e. the area and survey numbers forming part of the route are not mentioned with all details in the notice.
The subject notice merely broadly describes the area through which the proposed overhead electricity line would be passing i.e. the proposed route of the line would be passing i.e. the proposed route of the line. 10.2. Hence, when only broad description is mentioned and in respect of any area or the entire route any specific details are not mentioned, then the owners of the land of any particular Survey Number can not make, and would not be justified in making, grievance that its reference is not mentioned and therefore any work on or through the land/survey number not mentioned/included in the Notice can not be started. Thus, the grievance of the petitioner does not merit consideration. 10.3. On this count the respondent No.3 company has contended that actually in view of the relevant provisions, there is no obligation on the respondent No.3 company to even issue such notice before commencing the work and that therefore even if it is assumed that any particular area is not expressly mentioned in the notice then also, it would not affect or impeach upon the respondent company's right and obligation to lay the overhead lines and complete the project of public importance. 10.4. The discussion that follows will show that pursuant to and in view of the notification dated 5.1.2007, there was no need or obligation on the respondent - company to issue any notice and the respondent - company could have started the works even without issuing the said notice. The purport of the submission is that merely because the respondent company issued the notice, it cannot act against or cannot be used against the respondent - company. In the alternative, what is relevant is that the respondent - company has in the notice, merely given broad description, which is evident from the use of the phrase "area around and between villages..." employed in the notice. The said phrase makes it clear that the notice cannot be construed as a notice in which each and every village or each and every location or area or each and every survey number through which the electricity line is to be laid are mentioned/included. It is only a broad and general description which is given in the notice, consequently it can not be concluded that what is not expressly included is deemed to have been excluded.
It is only a broad and general description which is given in the notice, consequently it can not be concluded that what is not expressly included is deemed to have been excluded. Differently put, it can not be concluded, from the text and tenure of the notice, that those area or survey numbers or locations or villages which are not separately, expressly and specifically mentioned/included in the notice, are not covered or included villages in the route of the proposed line. 10.5. The route of the line is prepared by the officers having expertize in the job and the route always depends upon the technical aspects including the topography, etc. and the respondent - company may, in given case, be required to even alter the route, if so required, for diverse reasons, even during the execution of the work. 10.6. Besides the aforesaid aspects, what really matters is the nature of the project, which is a public importance. 10.7. If the respondent - company upon being duly authorized to undertake the work has broadly described the route through which the electricity line is to be laid and when the Act does not impose any obligation, on the person laying the electricity line to issue a notice containing and declaring all details e.g. names of all villages, each and every survey numbers etc., then, it would not be obligatory for the respondent - company to specify in exact and minute detail, all locations or all area and names of all villages or each survey numbers through which the route of the electricity line is projected. Even if mention or reference of any location or any area was inadvertently not made or if inclusion of any area or location or survey number becomes necessary on account of any technical or other compelling reasons, then also, non-inclusion of such subsequently added area or location cannot be made a ground for stalling the work of such public importance. 10.8. Therefore, atleast on this ground, the contention of the petitioners is not acceptable and this Court is not inclined to stall the work and restrain the company from proceedings further with the work on the said ground, much less to entertain and allow the petitions i.e. the Court is not inclined to prohibit the company to take steps, if necessary, to lay electricity line. 11.
11. Besides, the aforesaid objection, the petitioner has raised diverse objection which may be summarized thus, (a) the respondent No.3 company is a transmission company and is not engaged in the business of supplying electricity under the Act, and that, therefore, can not undertake the process of laying the overhead electricity lines, without obtaining the consent from the owner of the property, (b) in view of the provisions contained under Rule 3 of "Works of License Rules, 2006" framed in exercise of powers conferred by section 67 of the Act, which, inter alia, provides that the licensee may carry out works with the prior consent of owner for occupation of any particular building or land, however, any prior consent of the owner has not been taken by the respondent company; (c) section 68 of the Act requires prior approval of the appropriate Government, however, the respondent No.2 company has not shown anything to suggest that it has been granted approval by the appropriate Government; (d) while assailing the notification dated 5th January, 2007, the petitioner has claimed that the Government has no jurisdiction to issue such notification. It is further claimed that respondent company is a State transmission utility and not a licensee and it also does not engage in the business of "supplying" electricity and that therefore even if the notification dated 5th January 2007 is taken as valid, benefit thereof would not be available to the respondent company. 11.1. Besides, the aforesaid contention, the petitioners have also alternatively contended that there is no need to lay another/additional overhead lines as is proposed inasmuch as there is already two 132 KV poles existing from which overhead line can be drawn and that therefore there is no need or justification for erecting another pole/tower for the proposed 66 KV lines. 11.2. Per contra, the respondent company has claimed that the contentions/objections raised by the petitioners are misconceived and unsustainable in light of the statutory provisions and also in light of authority conferred on and available to the respondent company in light of the provisions under section 164 of the Electricity Act, 2003 and section 10 of the Indian Telegraph Act, 1885 as well as Notification dated 5.1.07.
Learned counsel for the respondent company has contended that in exercise of powers conferred under section 164 of the Act the State Government (being the appropriate Government) has issued Notification dated 5.1.07 under which the respondent company has been conferred all powers as available to the telegraph authority under the Indian Telegraph Act, 1885 and that therefore, in view of the said provisions, the company is not required to comply with other provisions i.e. sections 67(2) or 68 or 69 under the Act. Re: Notification (dated 05.01.2007) challenged after almost 4 years: 12. In this context, it is also necessary to keep in focus that the notification, which the petitioner has sought to challenge (by way of draft amendment dtd.11th April, 2011) was issued and published in the gazette as back as on 5th January 2007. Thus, it is after lapse of almost after four years (since the publication of the notification) that the petitioner has raised challenge against it and the Notice is challenged almost seven months after the notice was issued and on strength of such change the petitioner prays that the respondent company may be restrained from carrying on any construction work. 13. Since the contesting parties have supported their rival contentions on the premise of certain provisions under the Electricity Act, 2003 and Indian Telegraph Act, 1885 it is appropriate to take into account the relevant provisions. The same are sections 68, 69, 67(2) and 164 of the Act, Rule 3 of "Works of License Rule 2006" : "Section 68: Overhead lines (1) An overhead line shall, with prior approval of the Appropriate Government, be installed or kept installed above ground in accordance with the provisions of subsection (2).
The same are sections 68, 69, 67(2) and 164 of the Act, Rule 3 of "Works of License Rule 2006" : "Section 68: Overhead lines (1) An overhead line shall, with prior approval of the Appropriate Government, be installed or kept installed above ground in accordance with the provisions of subsection (2). (2) The provisions contained in subsection (1) shall not apply (a) in relation to an electric line which has a nominal voltage not exceeding 11 kilovolts and is used or intended to be used for supplying to a single consumer; (b)............................." "Section 69: Notice to telegraph authority (1) A licensee shall, before laying down or placing, within ten metres of any telegraph line, electric line, electrical plant or other works, not being either service lines or electric lines or electrical plant, for the repair, renewal or amendment of existing works of which the character or position is not to be altered, (a) submit a proposal in case of a new installation to an authority to be designated by the Central Government and such authority shall take a decision on the proposal within thirty days; (b) give not less than ten days' notice in writing to the telegraph authority in case of repair, renewal or amendment of existing works, specifying (i) the course of the works or alterations proposed; (ii) the manner in which the works are to be utilized; (iii) the amount and nature of the electricity to be transmitted; (iv) the extent to, and the manner in which (if at all), earth returns are to be used, and the licensee shall conform to such reasonable requirements, either general or special, as may be laid down by the telegraph authority within that period for preventing any telegraph line from being injuriously affected by such works or alterations; Provided that in case of emergency (which shall be stated by the licensee in writing to the telegraph authority) arising from defects in any of the electric lines or electrical plant or other works of the licensee, the licensee shall be required to give only such notice as may be possible after the necessity for the proposed new works or alternations has arisen.
(2) Where the works of the laying or placing of any service line is to be executed, the licensee shall, not less than forty eight hours before commencing the work, serve upon the telegraph authority a notice in writing of his intention to execute such works." "Section 67 : Provision as to opening up of streets, railways, etc. (1) XXX (2) The Appropriate Government may, by rules made by it in this behalf, specify, (a) 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 works; (b) the authority which may grant permission in the circumstances where the owner or occupier objects to the carrying out of works;" Rule 3 : licensee to carry out works (1) A licensee may (a) carry out works, lay down or place any electric supply line or other works in, through, or against, any building, or on, over or under any land whereon, wherever or whereunder any electric supply line or works has not already been lawfully laid down or placed by such licensee, 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: Provided further that if at any time, the owner or occupier of any building or land on which any works have been carried out or any support of an overhead line, stay or strut has been fixed shows sufficient cause, the District Magistrate or the Commissioner of Police, or the officer authorized may by order in writing direct for any such works, support, stay or strut to be removed or altered.
(2) When making an order under sub rule (1), the District Magistrate or the Commissioner of Police or the officer so authorized, as the case may be, shall fix, after considering the representations of the concerned persons, if any, 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. (3) Every order made by a District Magistrate or a Commissioner of Police or an authorized officer under sub rule (1) shall be subject to revision by the Appropriate Commission. (4) Nothing contained in this rule shall effect the powers conferred upon any licensee under section 164 of the Act" "Section 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 coordination 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.
"Section 10 of The Indian Telegraph Act, 1885: 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 purposes 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." Re: Consent of the owner: 14. It is in light of the provisions contained under the Electricity Act, 2003 and more particularly section 67(2) read with Rule 3 of Works of License Rule 2006 and sections 68 and 69 that the petitioner has contended that without consent of the owner of the property in question, the respondent company can not lay the overhead lines. 14.1. The contention is countered by the respondent company on the strength of section 10 of the Indian Telegraph Act, 1885 and the Notification dtd.5.1.07. 14.2. True it is that subsection (2) of section 67 provides that, the appropriate Government may frame rules which may include the rules prescribing the circumstances in which the consent in writing of the Government or local authority or the owner shall be necessary for carrying out the works and it is in light of the said provision that the Rule 3 of Rules, 2006 came to be framed. 14.3.
14.3. It is also true that the said rule 3, which has been framed in exercise of power under section 67(2), provides, inter alia, that the licensee "may carry out the works with prior consent of the owner or occupier of any building or land", and that therefore, at first blush it would appear that the petitioners are justified in contending that the respondent company can not commence and continue the work of laying the overhead lines, without prior consent of the owners of the land or building. However reference to section 64 of the Act and section 10 of Indian Telegraph Act is necessary. 14.4. The said section 164 of the Electricity Act, 2003, provides, inter alia, that for the purpose of laying electric lines the Appropriate Government may confer upon any public officer or licensee or any other person engaged in supplying Electricity Act, 2003, the powers with the telegraph authority. 14.5. On perusal of section 164 of the Act it comes out that the appropriate government can confer, for the purpose of laying and maintaining electric line or plant, upon any public officer or on a licensee or any person engaged in business of supplying electricity, the powers of telegraph authority. So that such public officer, or a licensee or other person can lay and maintain electric line or plan in the same manner and with same power as a telegraph authority would do in exercise of its power under section 10 of Indian Telegraph Act. 14.6. On the other hand, section 10 of the Indian Telegraph Act confers, on the telegraph authority, power to lay and maintain telegraph line. 14.7. What is pertinent is the fact that the said section 10 does not contemplate any notice to and/or prior consent of the owner of the land or building, to lay and maintain telegraph line. 14.8. It emerges from the reply affidavit that in exercise of powers under section 164 of the Act a Notification dtd.5.1.2007 has been issued by the Appropriate Government (i.e. the State Government). The respondent company is, by the said Notification, authorized to exercise the powers which the authority under the Telegraph Act can exercise. 14.9.
14.8. It emerges from the reply affidavit that in exercise of powers under section 164 of the Act a Notification dtd.5.1.2007 has been issued by the Appropriate Government (i.e. the State Government). The respondent company is, by the said Notification, authorized to exercise the powers which the authority under the Telegraph Act can exercise. 14.9. While referring to and by relying on the said Notification dtd.5.1.2007, it is claimed that Notification is issued under and in exercise of the said section 164 and the Notification is issued in name and favour of the respondent company and accordingly the power of telegraph authority stands conferred on the respondent company. The relevant part of the Notification, which makes the aforesaid aspect clear and visible, reads thus; "No.GU20075ILA11064884k: In exercise of the powers conferred by the Section164 of Electricity Act2003 (36th of 2003) and by superseding the notification No.G.U. (31) IEA10661319 dtd. 5th March, 1996 of Industry, Mines & Electricity Department of relevant time, Gujarat Energy Transmission Corporation Ltd constituted under the Company Act, 1956 is hereby fully empowered by the State Government to install/maintain electricity lines and equipments for electricity transmission" 14.10. Consequently, vide said Notification dtd.5.1.2007 the respondent company is conferred with the power of telegraph authority which would include the power under section 10 of the Indian Telegraph Act, 1885. Thus, when the said power of telegraph authority is conferred by the appropriate government, in exercise of power under section 164 of the Act, on any public officer, or on a licensee or on any person engaged in supplying electricity, such officer or licensee or person (in present case the Respondent company) can lay electric line in the same manner as a telegraph authority can and would. Re:Notification dated 05.01.2007 15. Upon being confronted with the said provisions, and the Notification the petitioner contended that the respondent company is neither public officer nor a "licensee" and is also not "person engaged in the business of supply of electricity" and that therefore the notification in favour of the respondent company could not have been issued by the appropriate Government. 16. The said contention of the petitioner is rested on the meaning of the term "supply" as defined under section 2(70) and on the belief that the respondent company is not "licensee".
16. The said contention of the petitioner is rested on the meaning of the term "supply" as defined under section 2(70) and on the belief that the respondent company is not "licensee". In this context it deserves to be noted that the counsel for the respondent company has, while replying to Court's query and dealing with petitioner's contention stated on instructions and asserted that the respondent No.2 company is a "transmission licensee" and has also submitted that the claim or allegation of the petitioner is based only on their impression or belief and not on any authenticated detail. He, for advancing the submission, relied on the averment made by the petitioner viz. "......to the best of the information of the petitioner and urged that the contention based merely on impression is without merits and may not be entertained. 16.1. When the allegation that the respondent company is not a transmission licensee under the Act but is only a State transmission utility notified by the Government......" is made by the petitioner only on their impression and not on any authenticated detail and when the learned counsel for the respondent has expressly asserted in response to Court's query that the respondent No.2 company is a "transmission licensee" the Court would, for the present purpose, proceed on the premise that the respondent No.2 is a transmission licensee and not on petitioner's unsubstantiated impression. 16.2. There is another reason also for proceeding in the case by considering the respondent as a "licensee" viz. besides the said submission, actually, the aspect becomes clear from the provisions under the Act, more particularly from the provision under section 39 of the Act. The term "licensee" is defined under section 2(39) of the Electricity Act so as to mean a person who has been granted a license under section 14 of the Act. 16.3. Section 14, in turn, provides that the Appropriate Government may grant license to any person, (a) to transmit electricity as a transmission licensee or (b) to distribute electricity as distribution licensee or (c) to undertake trading in electricity as electricity transmission. 16.4. There is no dispute about the fact that the Respondent company is a State Transmission Utility.
16.3. Section 14, in turn, provides that the Appropriate Government may grant license to any person, (a) to transmit electricity as a transmission licensee or (b) to distribute electricity as distribution licensee or (c) to undertake trading in electricity as electricity transmission. 16.4. There is no dispute about the fact that the Respondent company is a State Transmission Utility. Actually that aspect is admitted by the petitioner and their contention is rested on the said fact, in light of which it is alleged that the respondent is only a transmission utility and not a transmission licensee. However, the proviso of section 14 of the Act provides that "........or the State Transmission Utility shall be deemed to be a transmission licensee under this Act". Hence, the Respondent, being a State Transmission Utility is deemed to be by virtue of proviso of section 14a transmission licensee. 16.5. Thus, it follows that the respondent would stand covered under the provisions contained in section 164, consequently the Appropriate Government can in exercise of powers under section 164 and confer powers of the telegraph authority on the respondent company, it being a "licensee" as asserted by the learned counsel for the respondent company. The Appropriate Government, therefore, issued the referred Notification dated 05.01.07. 16.6. It needs to be noted that the learned counsel for respondent company has tried to attack and expose the petitioner's contention by pointing out that their objection is based on "impression" or "belief" and then he also simply relied on the assertion that it is a transmission licensee. However, what actually needs to be taken into account is the provision under section 39 of the Act, more particularly the proviso of section 14 of the Act in light of which it becomes clear that the respondent company is a "licensee". However, the said aspect is discussed in further detail at later stage. For the present, I would proceed on the basis of counsel's assertion. 17. The said Notification, inter alia, authorizes the respondent company to lay and maintain, wherever necessary, electricity lines for transmission on the condition specified under clause 2(1) and 2(2) of the said Notification. 17.1. The said notification also empowers the grantee, in the present case the respondent company, to exercise the powers of telegraph authority which the said authority i.e. the telegraph authority can exercise under the Indian Telegraph Act, 1885.
17.1. The said notification also empowers the grantee, in the present case the respondent company, to exercise the powers of telegraph authority which the said authority i.e. the telegraph authority can exercise under the Indian Telegraph Act, 1885. The telegraph authority under the Indian Telegraph Act, 1885 can exercise the power u/s. 10 of the said Act. 17.2. The said section 10 of Indian Telegraphic Act, 1885, as noted earlier, provides, inter alia, that, the authority may place and maintain the telegraphic line under or over any immovable property. 17.3. What is more important, so far as present case is concerned, is that on perusal of the said provision it emerges that the said section does not mandate or contemplate publication of any prior notice or does not mandate the requirement of any consent of the owner of the property. 17.4 Thus, if on any person, officer or licensee, the power of the telegraph authority is conferred then such person, officer or licensee can exercise the power and/or carry on the work of laying and maintaining the line without issuing prior notice or securing consent of the owner because the said section 10 of the Telegraph Act, 1885, does not contemplate such requirement. It is in view of the said provision that the respondent company would claim, and justifiably so, that after issuance of the Notification dated 5.1.07, the respondent company is not obliged to issue any prior notice or take consent of the owner, and it can proceed in the same manner as a telegraph authority would proceed to lay telegraph line. 18. So far as the objections and contentions raised in light of provisions under section 67 (or even sections 68 and 69, for that matter) is concerned, it requires the appropriate Government to make rules which may, inter alia, provide for written consent of the owner. Consequently the said provision would also bring in picture the provision under Rule 3 (of the Works of licensee Rules, 2006) which are framed by the appropriate Government under section 67. It is the said Rule 3 and the language under section 164 on which the petitioner has placed heavy reliance. 18.1. The above referred rule 3 provides, inter alia, that a licensee may carry out the works with prior consent of the owner or occupier of the building or land. 18.2.
It is the said Rule 3 and the language under section 164 on which the petitioner has placed heavy reliance. 18.1. The above referred rule 3 provides, inter alia, that a licensee may carry out the works with prior consent of the owner or occupier of the building or land. 18.2. The petitioner contends that though the said provisions postulates that the consent of the owner must be obtained, the respondent company has not sought the consent of the petitioner and that according to the petitioner it is only a licensee who is authorized to carry out the works in exercise of said rule 3. 18.3. A similar contention is also raised in light of section 164 which, inter alia, provide that the appropriate Government may, by order, confer the power of telegraph authority upon any public officer or licensee or any other person engaged in the business of supplying electricity. 18.4. The crux of the petitioner's contention on strength of the language of aforesaid Rule 3 (of the Works of Licensee Rules, 2006) framed in exercise of section 67(2) and/or on the strength of the language of section 164 is that the petitioner being a transmission utility is not a "licensee" and that therefore the provisions under rule 3 and/or section 164 of the Act would not help the respondent company since the said benefit of the provision would be available only to a "licensee" whereas the respondent company (according to the petitioners) is a "transmission utility" and not "licensee". 18.5. On the same lines, it is also contended that respondent company is not a "public officer" and being a transmission utility it is not a licensee also and that therefore the Respondent company would be "any other person". However, since the respondent company is engaged in the activity of "transmission of electricity" and "providing facility for transmission of electricity", it cannot be said to be "engaged in the business of supplying electricity" because the term "supply" has been separately defined under section 2 (70) of the Act to mean "in relation to electricity", the sale of electricity to licensee or "consumer". The respondent company is not engaged in "sale of electricity to a licensee or a consumer" and that therefore it can not be said to "supplying" electricity.
The respondent company is not engaged in "sale of electricity to a licensee or a consumer" and that therefore it can not be said to "supplying" electricity. Hence, the respondent company, according to the petitioner, does not stand covered under any one out of the three categories viz. "public officer" or "licensee" or "any other person engaged in business of supply of electricity" and that therefore it can not get the benefit or advantage of said Rule 3 and/or of section 164. Consequently, the power of telegraph authority can not be conferred on the respondent company. 18.6 Both the contentions i.e. the contention based on (i) section 67(2) read with Rule 3 and the contention based on (ii) the construction of section 164, are not sustainable because the contention ignores the effect of conjoint reading of section 39 and section 14 of the Act and the proviso of said section 14. 18.7. The provision under section 14 of the Act, inter alia, contemplates "licensee" in three categories viz. (a) transmission licensee (b) distribution licensee and (c) undertaking engaged in trading licensee. Whereas the provision under Section 39 of the Act deals with the functions of transmission utility and inter alia provides that the transmission utility shall not engage in the business of trading in electricity provided further that the State Government may transfer, and vest any property, interest in property, rights and liabilities connected with, and personnel involved in transmission of electricity, of such State Transmission Utility, to a company or companies to be incorporated under the Companies Act, 1956 (1 of 1956) to function as transmission licensee through a transfer scheme to be effected in the manner specified under Part XIII and such company or companies shall be deemed to be transmission licensees under this Act and subsection (2) of section 39 provides that the functions of the State Transmission Utility shall be (a) to undertake transmission of electricity through intra State transmission system and (b) to discharge all functions of planning and coordination relating to the intra State transmission system etc. Now even according to the petitioner, the respondent company is a "State Transmission Utility". Thus, there is no dispute on this count. Once that position is settled, immediately the provision under Section 14 and particularly the proviso of section 14 would come into play.
Now even according to the petitioner, the respondent company is a "State Transmission Utility". Thus, there is no dispute on this count. Once that position is settled, immediately the provision under Section 14 and particularly the proviso of section 14 would come into play. The proviso reads thus; "provided further that the Central Transmission Utility or the State Transmission Utility shall be deemed to be a transmission licensee under this Act;" 18.8. Thus proviso postulates that a transmission utility (which the Respondent Company is) shall be deemed to be a "transmission licensee". 18.9. Thus, in view of undisputed fact ( the fact admitted by the petitioner) that the respondent company is State Transmission, the Respondent Company, in light of the provision in the proviso of section 14 which postulates that State Transmission Utility is deemed to be "transmission licensee" becomes "transmission licensee" under the Act i.e. within the meaning of section 14(a) of the Act as well. 19. Consequently, even for the purpose of section 164 and/or section 67(2) read with Rule 3 also the respondent company would be a "licensee" and that therefore, if the appropriate Government issued order in writing, conferring upon the respondent company the power which the telegraphic authority possesses, then such order of the appropriate Government would be in accordance with section 164 and/or section 67(2) read with rule 3 and the Notification cannot be said to be without authority of law or contrary to the provisions of the Act. 19.1. Upon the order/notification being issued the "licensee" or the "public officer" as the case may be, in whose favour the order/notification is issued would be authorized to exercise the powers possessed of the telegraph authority and that therefore it can exercise powers under section 10 of the Indian Telegraph Act, 1885. 19.2. Hence, the petitioner's contention which is based on the understanding and belief that the respondent company is not a licensee, does not hold good in view of the proviso to section 14. 19.3. By relying on the provisions under Rule 3 of Works of License Rules, 2006 read with Section 67 of the Act, the petitioners contended that the respondent No.2company cannot avail the benefit of the said provision since it is not licensee. However, the aforesaid discussion clarifies that the said contention/objection of the petitioner is not well found. 20.
19.3. By relying on the provisions under Rule 3 of Works of License Rules, 2006 read with Section 67 of the Act, the petitioners contended that the respondent No.2company cannot avail the benefit of the said provision since it is not licensee. However, the aforesaid discussion clarifies that the said contention/objection of the petitioner is not well found. 20. The aforesaid discussion would take the Court to the provision under Section 164 of the Act. 20.1. When the petitioners were confronted by the respondent - company with the said provision and the contention that the State Government being appropriate Government has issued notification in exercise of Section 164 conferring powers of telegraph authority on the respondent company, the petitioner's immediate reaction, by way of draft amendment, was that the respondent No.2company is not a public officer or a licensee and therefore, it can take recourse only under the words "any other person". The petitioner then contended that the respondent No.2 - company would not be covered within the said phrase as well because the respondent No.2 - company is not engaged in the business of supplying electricity. The petitioner contended that the term supply has specific connotation so far as the Act is concerned, inasmuch as the term is defined under Section 2(70) and the respondent No.2 - company is not engaged in the activity contemplated under Section 2(70) of the Act. 20.2. Thus, the petitioner would claim, that the respondent - company does not fall within the purview of Section 164 and that therefore, the State Government could not have issued the notification conferring power of telegraph authority on the respondent company. However, the foregoing discussion demonstrates that the respondent No.2company is in view of the proviso of section 14 of the Act, a transmission licensee within the purview of section 14(a), in view of the proviso of the said Section. 20.3. Once this aspect becomes clear, the notification dated 5.1.2007 would come in picture. The said notification is issued in exercise of powers under section 164. The State Government has, by the said notification, conferred power of telegraph authority on the respondent company the power available to the telegraph authority under Section 10 of the Indian Telegraph Act. 20.4. As noticed hereinabove earlier, the said provision authorizes the telegraph authority to place and maintain a telegraph line, from time to time over/across any immovable property.
The State Government has, by the said notification, conferred power of telegraph authority on the respondent company the power available to the telegraph authority under Section 10 of the Indian Telegraph Act. 20.4. As noticed hereinabove earlier, the said provision authorizes the telegraph authority to place and maintain a telegraph line, from time to time over/across any immovable property. Section 164 postulates that the authority under the Electricity Act can exercise the same powers for laying the electricity lines. 20.5. Once the power available to the telegraph authority under Section 10 are conferred on the respondent No.2company, it would be within its power to undertake the works to lay the electricity line in the same manner a telegraph authority would lay telegraph line. 20.6. It is pertinent that the said provision under Section 10 of the Indian Telegraph Act, 1885 does not mandate any other or separate notice or any consent of the owner or any fresh or other approval of the appropriate Government besides the notification under Section 164 and that therefore, the action of the respondent company of starting the procedure and undertaking the activity for laying the overhead electricity line viz. "66Kv Lilo Bilasiya Line" cannot be faulted on the ground that any consent from the owner of the property have not been obtained and/or the approval from the appropriate Government, as contemplated under Section 67(2) or 68(2) of the Act, are not taken. 20.7. Now, so far as the challenge to the notification is concerned, as noted hereinabove earlier, the notification was issued in January 2007. The Notification is issued in exercise of section 164 of the Act and for the reasons discussed above, particularly in light of section 14, proviso of sections 14, 39, 67(2) Rule (3) etc. the contentions against the said notification are found to be unsustainable. It is noticed that the respondent company is a "licensee" and that the Appropriate Government has issued the Notification in exercise of section 164. By virtue of the Notification the power available to the telegraph authority under section 10 of the Telegraph Act, 1885 are conferred on the respondent company. 20.8. Once it is settled that respondent is a licensee, any other valid and substantial obstacle against the exercise of conferring telegraph authority's power on respondent company does not survive. Even otherwise it is now too late in time to challenge the said notification.
20.8. Once it is settled that respondent is a licensee, any other valid and substantial obstacle against the exercise of conferring telegraph authority's power on respondent company does not survive. Even otherwise it is now too late in time to challenge the said notification. Furthermore, the provision under Section 164 of the Act authorizes the appropriate Government to issue such order/notification so as to confer power of telegraph authority on any public officer/licensee or person engaged in business of supplying electricity and since the respondent - company is, as discussed hereinabove earlier, "licensee", there is no fault or illegality in exercising power under section 164 of the Act. Therefore also, the contention is not sustainable and is not accepted. Re: Additional Towers/Poles: 21. This leaves behind the last contention by the petitioners viz. that there are already two existing polls/towers of 132 KV, which can be, according to the petitioners, used by the respondent - company for laying the electricity lines and there would not be any need to erect any other or additional polls/tower for laying the proposed 66KV line. 21.1. So far as the said contention is concerned, it is only the respondent - company, who is and can be the best judge of its requirement and its officers are duly qualified technical personnel, who can decide their requirement. The Court cannot pronounce upon the justification of the respondent's decision as to whether additional or another polls/towers should be erected or the existing ones should be used. This is purely and solely within the realm of the respondent - company. If such a possibility was available, then, ordinarily, any undertaking would not incur expenses over additional or unnecessary infrastructure. If the respondent - company is proposing to erect any other or additional polls/towers then, the assumption would be that the decision has been taken by the experts after considering all alternatives and technical feasibilities and other relevant criteria. The Court, would not interfere with the decision of the respondent - company. 22. In view of the foregoing discussion, this Court is of the view that the relief prayed for by the petitioners cannot be and does not deserve to be granted and any case for interfering with the proposed work to be undertaken by the respondent - company, which is as aforesaid, of public importance, is not made out.
22. In view of the foregoing discussion, this Court is of the view that the relief prayed for by the petitioners cannot be and does not deserve to be granted and any case for interfering with the proposed work to be undertaken by the respondent - company, which is as aforesaid, of public importance, is not made out. The petitioners have also not been able to make good the contentions raised on the basis of the provisions under Sections 67, 68, 69 and 164 of the Electricity Act. The petitions therefore fail and are rejected. Order In CA In view of the order passed in the main petitions, the Civil Application does not survive and the same is disposed of. Petitions rejected.