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Allahabad High Court · body

2017 DIGILAW 702 (ALL)

BRAJESH CHAUBEY v. DISTRICT MAGISTRATE

2017-03-06

ASHOK KUMAR, V.K.SHUKLA

body2017
ORDER : 1. Petitioners, who are two in number are before this Court with a prayer to command the respondent no.3 to stop the work of establishment of Poles for 132 Kv Line over the plots number of petitioners as mentioned in paragraph no.5 of the writ petition and further compensate the damage of the crops which has done away by destroying. 2. The petitioners claim to have transferable rights in the agricultural land detailed in para-5 of the writ petition. It is alleged that the respondents, without obtaining the consent of the petitioners, have resumed their land to realign the high tension power lines along with the poles sought to be set up on their land without giving notice of personal hearing to them. On account of high tension power lines drawn over their land, they are unable to use their land for any purpose. The cause of action for filing the present writ petition had arisen when the respondent authorities had started making inspection over the petitioners' land. 3. Learned counsel for the petitioners submits that the high tension power lines cannot be drawn over the land of any person without taking his expressed consent. If any objection is raised for digging up the land to instal poles and drawing electricity lines, which may affect beneficial enjoyment of the land, the respondents must compensate the persons who suffer the loss of the beneficial utilisation of the land. He submits that in view of Section 164 of the Electricity Act read with Electricity Rules, and Sections 10, 16, 16 (1) of the Indian Telegraph Act, 1885 (13 of 1985), the petitioners are entitled to compensation at the rates for which they have represented. 4. The claim of the petitioners has been opposed by Shri Krishna Agarwal, Advocate appearing for the respondents. It has been contended that the Power Grid Corporation of India Limited (the Corporation) has been empowered under Section 164 of the Act to exercise powers of the telegraph authorities including the power under Section 10 of the Telegraph Act. It can also erect towers on any immovable property and lay overhead electrical lines over any immovable property. It has been contended that the Corporation is a licensee under the Act. Such towers can be fixed as the provisions of Section 10 of the Telegraph Act are applicable and all the petitioners can claim compensation for damages. 5. It can also erect towers on any immovable property and lay overhead electrical lines over any immovable property. It has been contended that the Corporation is a licensee under the Act. Such towers can be fixed as the provisions of Section 10 of the Telegraph Act are applicable and all the petitioners can claim compensation for damages. 5. We have considered the submissions of learned counsel for the parties and perused the record. 6. The main contention of learned counsel for the petitioners is that no consent has been taken from the petitioners for laying down the high tension power line, which was obligatory for the respondents to have obtained permission from the District Magistrate for the same. In the present matter, since the respondents are exercising the powers under Sections 10 and 16 of Telegraph Act, the provisions itself oblige the respondents to obtain the consent of the District Magistrate. 7. It is relevant to indicate that both telegraph lines and electrical lines are required to be drawn over the agricultural lands and/or other properties belonging to third parties. In drawing such lines, the entire land cannot be acquired but the effect thereof would be diminution of value of the property over which such line is drawn. The Telegraph Act provides for the manner in which the amount of compensation is to be computed therefor. Section 10 of the Telegraph Act empowers the authority to place and maintain a telegraph line under, over, along or across, or posts in or upon any immovable property. Section 11 empowers the officers to enter on property in order to repair or remove telegraph lines or posts. Section 12 empowers the authority to grant permission for laying down such lines to a local authority in terms of clauses (c) & (d) of the proviso to Section 10 of the Telegraph Act subject to reasonable conditions as it may think fit. Sections 10 and 16 of Telegraph Act read as under:- "10 Power for telegraph authority to place and maintain telegraph lines and posts. Sections 10 and 16 of Telegraph Act read as under:- "10 Power for telegraph authority to place and maintain telegraph lines and posts. - 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 1 [Central Government], or to be so established or maintained; (b) the 1 [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. Exercise of powers conferred by Section 10, and disputes as to compensation, in case of property other than that of a local authority.- (1) If the exercise of the powers mentioned in Section 10 in respect of property referred to in clause (d) of that section is resisted or obstructed, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them. (2) If, after the making of an order under section (1), any person resists the exercise of those powers, or, having control over the property, does not give all facilities for their being exercised, he shall be deemed to have committed an offence under Section 188 of the Indian Penal Code, 1860 (45 of 1860). (3) If any dispute arises concerning the sufficiency of the compensation to be paid under Section 10, clause (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him. (3) If any dispute arises concerning the sufficiency of the compensation to be paid under Section 10, clause (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him. (4) If any dispute arises as to the persons entitled to receive compensation, or as to the proportions in which the persons interested are entitled to share in it, the telegraph authority may pay into the court of the District Judge such amount as he deems sufficient or, where all the disputing parties have in writing admitted the amount tendered to be sufficient or the amount has been determined under sub-section (3), that amount; and the District Judge, after giving notice to the parties and hearing such of them as desire to be heard, shall determine the persons entitled to receive the compensation or, as the case may be, the proportions in which the persons interested are entitled to share in it. (5) Every determination of a dispute by a District Judge under sub-section (3), or sub-section (4) shall be final: Provided that nothing in this sub-section shall affect the right of any person to recover by suit the whole or any part of any compensation paid by the telegraph authority, from the persons who has received the same." 8. Section 10 of the Telegraph Act is titled "power for telegraph authority to place and maintain telegraph lines and posts". It empowers them to place and maintain the telegraph lines under, over, along, or across, or posts in or upon, any immovable property. Under this Section, a telegraph authority is empowered to erect poles and place telegraph line over any immovable property. The generation and distribution of electricity was governed by the Indian Electricity Act, 1910 (the old Act). At present, it has been replaced by the Electricity Act, 2003 (the Act). The Power Grid Corporation of India Limited (the Corporation) is a company incorporated under the Companies Act, 1956. Its shares are owned by the President of India and it is a Central Government Company. The main purpose of the Corporation is to set up national infrastructure for distribution of electricity. The Corporation has electric substations in different districts. The old Act and the Act envisage different kinds of utilities and licenses, one of them is transmission utility and transmission licence. The main purpose of the Corporation is to set up national infrastructure for distribution of electricity. The Corporation has electric substations in different districts. The old Act and the Act envisage different kinds of utilities and licenses, one of them is transmission utility and transmission licence. The Corporation was declared Central Transmission Utility under Section 27 (A) (i) of the old Act by the notification dated 31.12.1998. It has also been so declared under Section 38 (1) of the Act by the notification dated 27.11.2003. 9. At this stage, it is relevant to indicate that the Act also defines who is a licensee under Section 2 (39) of the Act. It means a person, who has been granted a licence under Section 14 of the Act. Section 14 of the Act empowers the appropriate commission to grant a licence. Among the other licenses, a person can be granted transmission licence to transmit electricity. However, proviso to Section 14 clearly provides that the Central Government Transmission Utility or the State transmission utility is deemed to be transmission licensee under the Act. The Corporation has been declared to be a Central Transmission Utility and is a transmission licensee under the Act. Section 164 of the Act is titled as 'Exercise of powers of Telegraph Authority in certain cases'. It empowers appropriate Government to empower any public officer or any other licensee or any person engaged in the business of supplying electricity under the Act with the same powers to place electric lines or electrical posts as the telegraph authority possesses under the provisions of the Telegraph Act. The Central Government is the appropriate government for the Corporation. It has issued a notification in favour of the Corporation on 24.12.2003 under section 164 of the Act. In view of this, the Corporation is entitled to exercise the same powers as a telegraph authority has while placing lines or posts under the Telegraph Act. Section 10 of the Telegraph Act is titled 'Power for telegraph authority to place and maintain telegraph lines and posts'. It empowers them to place and maintain the telegraph lines under, over, along, or across; and posts in or upon, any immovable property. Under this section, a telegraph authority is empowered to erect poles and place telegraph line over any immovable property. It empowers them to place and maintain the telegraph lines under, over, along, or across; and posts in or upon, any immovable property. Under this section, a telegraph authority is empowered to erect poles and place telegraph line over any immovable property. The Corporation has been empowered under section 164 of the Act to exercise powers of the telegraph authorities including the power under section 10 of the Telegraph Act. It can also erect towers on any immovable property and lay overhead electrical lines over any immovable property. 10. We have occasion to go through the scheme of Electricity Act, 2003, Telegraph Act and Works of Licensees Rules, 2006 which clearly provide for the authority to the Corporation for placing electricity supply line and apparatus for transmission of power which the telegraph authority possesses under the Telegraph Act. If a person objects to establishment of poles and drawing electricity lines over his land, the authority has to apply for permission to the District Magistrate and in such a case the District Magistrate has to work out a fair compensation to be paid to the persons within reasonable time. In case the person is not satisfied with the quantum of compensation, which has been offered to him by the District Magistrate, the District Judge in such cases has been authorised to work out compensation under sub-section (3) of Section 16 of the Telegraph Act. Sub-rule (4) of Rule 3 of Works of Licensees Rules, 2006 clarifies the situation that nothing contained in Rule shall effect the powers conferred upon any licensee under Section 164 of the Act. The provisions of Section 164 of the Act are not at all controlled/governed/subject to the provisions of Works of Licensees Rule, 2006 and same is an independent exercise of authority. 11. In Deva Raj v. U.P. State Electricity Board, Lucknow & Ors., AIR 1977 Allahabad 452, a Division Bench of this Court had examined the provisions of Section 51 of the Indian Electricity Act, 1910, which is similar to the provisions of Section 164 of the Electricity Act, 2003 and observed that in view of the notification issued by the State Government under Section 51 of the 1910 Act read with Section 10 of the Telegraphs Act, the respondents have the power to install the towers on the land owned by a person. Similarly the Madras High Court, in E. Venkatesan & Ors. Similarly the Madras High Court, in E. Venkatesan & Ors. v. Chairman, Tamil Nadu Electricity Board, Madras & Ors., AIR 1977 Madras 64 while dealing with the powers under Section 51 of the Act of 1910, also observed :- "From the above settled position of law, it is clear that when the Electricity Board exercises power under Section 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 electricity 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." 12. In the aforesaid facts and circumstances, this Court is of the considered opinion that the construction of transmission power service lines cannot be stopped for want of payment of compensation. However, an appropriate direction can be issued to the competent authority for determining the compensation in accordance with law and pay the same to the tenure holders over whose land the towers are being erected. 13. We accordingly dispose of this petition, with liberty to the petitioners to move an appropriate application before the concerned District Magistrate with regard to their claim along with certified copy of this order and other supported materials, whereupon the District Magistrate shall pass appropriate orders on the claim of the petitioners for compensation in accordance with law within three months from the date of production of a certified copy of this order.