CW 11973/08 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.11973/2008 Smt. Nanchi Devi & Ors. Versus State, RRVPNL, Jaipur & Ors. Date of Order ::: 18/03/09 Hon'ble Mr. Justice Ajay Rastogi Mrs Sonia Sandilya ) Mrs.Sushila Kalwania), for petitioners Mr. Alok Garg) Ms Sonal Singh ), for respondents No.2 to 7 Mr. Sudhir Gupta, for respondent No.8 (Binani Cement) Matter has come up on application seeking vacation of interim order dt.24/10/08. At joint request, matter has been finally heard and is being disposed of at admission stage. Instant petition has been filed jointly by petitioners claiming to be owners of agricultural land situated in areas & villages of Tehsil Neem-Ka-Thana, district Sikar as described in para 2 of the petition with the grievance that without initiating proceedings for acquisition of land under Land Acquisition act or any notice by respondent-State to acquire the same for the purposes of Rajasthan Rajya Vidyut Prasaran Nigam Ltd. (“RRVPNL”) (respondent NO.2), all of sudden started laying high-tension electricity lines over their lands for providing electricity supply to the factory of Binani Cement Ltd (respondent NO.8) without any prior notice or opportunity of CW 11973/08 //2// hearing being afforded to them. While issuing notices vide order dt. 24/10/08, respondents were restrained from installing pillars for laying the high tension electricity supply line in the fields of petitioners. Counsel for petitioners submits that on account of laying of high tension lines, wide pillars are to be constructed over petitioners' lands, where pits would be dug out for erecting poles serving as basement to 132 KV high tension electricity supply line, thereby it would render their lands un-cultivatable & useless for any purposes; and despite they jointly approached the authority concerned also, their efforts failed, hence have approached this Court by way of instant petition. Counsel further submits that in absence of consents from land-holders (petitioners), respondents are not empowered and have no jurisdiction or authority to enter into their fields to dug pits for erecting poles and to draw high tension wires. Apart from objection about their authority to enter into their fields, Counsel further submits that there is already an existing electricity supply line which can be CW 11973/08 //3// upgraded but high-tension line is being laid only to provide electricity supply to factory of Binani Cement Co. (respondent No.8) for some ulterior purposes. Reply has been filed by respondent Nos.2 (RRVPNL) to 7 and so also by respondent NO.8 impleaded as party vide order dt.30/01/09, wherein it has been inter-alia averred that respondents (RRVPNL) are laying down high tension line for providing electricity supply in public interest to M/s Binani Cement Ltd; inasmuch as petitioners would get due compensations as regards losses to their crop or otherwise in accordance with law. It has further been averred in their reply that State Government in exercise of powers U/s 164 of Electricity Act, 2003 (“Act, 2003”) and under Indian Telegraph Act, 1885 (“Telegraph Act”) has conferred powers upon Chief Engineer of RRVPNL (State Transmission Utility) for purposes of placing of electric lines or plants for transmission of electricity or for purposes of telephonic/telegraphic communications necessary for proper co-ordination of works, subject to the conditions & restrictions vide notification dt.28/02/2004 published in Rajasthan Gazettee dt.08/03/2004 – in pursuance whereof Chief Engineer, RRVPNL had issued notification CW 11973/08 //4// dt.23/08/08 (Ann.R/2) granted sanction of right of way for erection/construction of 132 KV-S/C Neem Ka Thana-Binani Cement Ltd transmission line for supply of electricity passing within the boundary of Eleven revenue villages including Neem-Ka-Thana. It has further been averred in the reply that high-tension line is being laid at a minimum height as prescribed under Chapter VIII of Indian Electricity Rules, 1956 (“Rules, 1956”) as per which, all necessary pre-cautions are being undertaken and during constructions/ erection of Extra High Voltage line (EHV, shortest & safest route is being adopted and that apart, safety parameters are technically examined inasmuch as length of electricity line is less than 7kms, for which starting & ending points are fixed so that it is not possible to divert in between. Counsel for respondents submits that there is no provisions in the Act, 2003 or Telegraph Act to serve prior notice or to initiate proceedings for acquisition under Land acquisition Act where transmission of electricity line is to be laid. Counsel further submits that only contention of petitioners is that without their consent, respondent -RRVPNL is not competent in law to dig pits for erecting poles CW 11973/08 //5// for drawing high tension wires over their lands which according to petitioners, is an act of trespass on the part of respondents over their private property, which is not permitted under law; whereas U/s 164 of Act, 2003 read with S.10 of Telegraph Act, the authority can lay electric lines/plants/towers for transmitting electricity, telephonic/telegraphic communication over private land, for which vide notification dt. 28/02/04, powers of State Government has been conferred upon Chief Engineer RRVPNL who in exercise of such powers accordingly issued sanction of right of way for erection/construction of 132 KV transmission of electric line vide notification dt.23/08/2008; as such Counsel for respondents contends that what has been done is lawful and in accordance with provisions of Act, 2003 under which respondents are legally entitled to enter their property/land and draw electric lines, for which, to dig pits and construct towers for drawing high tension wires. I have considered rival contentions of Counsel for the parties and with their assistance, examined material on record. Main grievance of petitioners is that no portion of their land has been acquired and without giving notice and obtaining their consent, respondents CW 11973/08 //6// started laying 132 KV transmission electric line through their private land, which is illegal act on their part, warranting interference by this Court. Respondents have also justified their action contending that they are legally entitled to enter into, dig pits, erect poles or draw high tension wires over their lands in exercise of powers conferred by virtue of S.164 of Act, 2003 & S.10 of Telegraph Act. While examining scope of S.51 of Indian Electricity Act, 1910 corresponding provisions to S.164 of Act, 2003 and so also S.10 of Telegraph Act and examining such like controversy as raised herein as to whether respondents were justified and within their authority to draw high tension wire over the lands to dig pits for erecting poles and were entitled to serve legal notice or to acquire land before laying transmission of electric line taking note of provisions of Electricity Act, Madras High Court in E.Venkatesan Vs. Tamilnadu Electricity Board, Madras (AIR 1997 Madras 64) observed ad infra: “19. 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 CW 11973/08 //7// purpose of laying electric lines for which full compensation is given for the damages 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.” S.164 of Act, 2003 reads ad infra: “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 establish or maintained, by the Government or to be so established or maintained.” Thus, for placing electric lines/plants for transmission of electricity or telephonic/ telegraphic communications necessary for proper co-ordination of works, U/s 164 of Act, 2003, appropriate Government may, by order in writing, confer upon any public officer,licensee or any other person engaged in business of supply of electricity subject to conditions & restrictions CW 11973/08 //8// if any as the Government may think fit to impose and subject to provisions of Telegraph Act, any of powers which the telegraph authority possesses with respect to placing of telegraph line & posts. S.10 of Telegraph Act empowers telegraph authority to place and maintain telegraph lines and posts, as per which telegraph authority may place and maintain a telegraph line under, over, along, or across and posts in or upon any immovable property. Under proviso (b) to S.10 of Telegraph Act, 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 posts. As per proviso (c) to S.10, except as hereinafter provided, 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. In exercise of powers U/s 164 of Act, 2003 read with S.10 of Telegraph Act, State Government conferred powers which the telegraph authority possesses under Telegraph Act upon Chief Engineer, RRVPNL to erect electric lines/ plants for transmission of electricity/ CW 11973/08 //9// telephonic/telegraphic communications as neeeded for proper co-ordination of the works vide notification dt.28/02/04 – in pursuance whereof, Chief Engineer RRVPNL exercised powers U/s 164 of Act, 2003 & S.10 of Telegraph Act vide notification dt.23/08/08 which reads ad infra: “No.RVPB/CE/T&C/Sec.5/F.180(TL)/D.1874. - In pursuance to the notification dt.28/02/2004 issued by the Energy Department, Government of Rajasthan, Jaipur which was published in the Rajasthan Gazettee dated 8.3.2994 at S.No.406 page 393(13)Part-4(GA) under Sec.164 of the Electricity Act, 2003, the State Government has conferred the powers under Sec.164 of the Electricity Act, 2003 as well as the powers of Telegraph Authority under the provisions of the Indian Telegraph Act, 1885 to the Chief Engineer, RVPNL to erect electric lines/electric plants for the transmission of electricity or for the purpose of telephonic or telegraphic communications necessary for the proper co-ordination of works. Hence the undersigned in exercise of the above powers, hereby accord the sanction of right of way for erection/ construction of 132 KV S/C Neem Ka Thana, Binani Cement Ltd. Transmission line for supply of electricity. The said line will pass within the boundary of the following revenue villages: CW 11973/08 //10// 1.Neem KA Thana 2 to 11 Not relevant” As per notifications (supra), Chief Engineer, RRVPNL exercised its powers conferred U/s 164 of Act,2003 & S.10 of Telegraph Act and accorded sanction a right of way for erection/ construction of 132 KV S/C Neem Ka Thana, Binani Cement Ltd transmission line for supply of electricity passing within the boundary of the Eleven revenue villages including Neem KA Thana, for which petitioners have raised their grievance herein; and notification dt.23/08/08 has been issued after having made survey for laying 132 KV S/C Neema Ka Thana-Binani Cement Ltd transmission line for supply of electricity, taking note of technical opinion about shortest as well as safest route, besides safety measures and pre- cautions as provided under Chapter VIII of Electricity Rules, 1956. Thus, process was initiated to lay down 132 KV transmission line for electricity to Binani Cement Ltd. (respondent NO.8) passing within boundary of revenue village of Neem-Ka- Thana by way of issuing notification dt.23/08/08 (Ann.R/2) – in light whereof, no argument can be put forward by petitioners that officers of respondents (RRVPNL) are not entitled to enter into their property or land to draw high tension CW 11973/08 //11// line for electricity supply in question. Once powers under Telegraph Act are conferred upon public officer of RRVPNL (respondents) they are entitled to dig pits and also install towers over property/lands of petitioners and that being so, question of their consent does not arise for consideration nor it is required under law. A conjoint reading of S.164 of Act, 2003 & 10 of Telegraph Act depicts that for exercise of powers to erect transmission of electricity supply line and for laying poles or constructing any tower, no prior consent or notice or intimation to enter into property is necessary and only right to the owner or occupier of the property/land is to claim compensation as provided U/s 10(d) of the Act, and their act of placing poles for laying electric line in fields of petitioners cannot be said to be unauthorized or a trespass. However, U/s 16(1) of Telegraph Act, in exercise of powers U/s 10 in respect of property referred to in clause (d) of S.10 is resisted or obstructed, the District Magistrate may, in its discretion order that telegraph authority shall be permitted to exercise them and still after an order being made U/s 16(1) any person resists in exercise of those powers, or, having control over CW 11973/08 //12// property, does not give all facilities for exercising powers, such person resisting in exercise of powers is considered to be deemed to have committed an offence U/s 188 of Indian Penal Code, in term of S.16(2) of the Act. What protection has been provided to private person is that if on being not satisfied with compensation awarded to him as regards damages to his property, for sufficiency of compensation, U/S 16 (3) of Telegraph Act, he can raise dispute before District Judge within whose jurisdiction property is situated; and such determination of dispute made by District Judge U/Ss 16(3) or 16(4) shall be final by virtue of S.16(5) of Telegraph Act. It has also been informed to this Court that for laying transmission of electric line in question for supply of electricity to Binani Cement Ltd, which will pass within boundary of Elevan revenue villages as referred to in notification dt.23/08/08, only few residents of village & Tehsil Neem Ka Thana has raised grievance while erection and transmission line of 132 KV S/C Neem Ka Thana Binani Cement Ltd for supply of electricity in question is under progress. The discretion as to through which property/land the line has to be drawn vests with the authority taking note of survey technical CW 11973/08 //13// report of their technical experts and this Court is not supposed to interfere, once exercised in its true spirit under law. Consequently, writ petition fails and is hereby dismissed. In view whereof, application U/Art.226(3) of Constitution stands disposed of and interim order dt.24/10/08 stands vacated. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.13/11973CW08Mar18RSEB.doc