THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.1599 of 2010 (Dated : 20-07-2010) Between: Samudrala Gnaneshwar S/o Pandurangaiah R/o Nalgonda District and others …Petitioners A n d The Chief Engineer (Constructions), A.P.Transco And others …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.1599 of 2010 ORDER: This revision is directed against the order dated 04.12.2009 passed in C.M.A.No.16 of 2009 on the file of the Principal District Judge, Nalgonda, whereby and whereunder the learned District Judge allowed the Civil Miscellaneous appeal filed under Order 43 Rules 1 and 2 read with section 104 CPC and vacated the temporary injunction granted by the Junior Civil Judge, Devarakonda in I.A.No.388 of 2008 in O.S.No.66 of 2008. 2(a) The petitioners are the plaintiffs in O.S.No.66 of 2008. They are the owners of Ac.6-27 guntas comprising Survey No.245/E having purchased under Ex.P-1 registered sale deed dated 4.6.2007. The Government of Andhra Pradesh granted permission to respondents to undertake work for electric line erection for the purpose of Krishna water supply to Hyderabad Mega City. The A.P.Transco had formulated a scheme for extension of 132 KV supply as a permanent measure to M/s. Hyderabad Metro Water Supply and Sewerage Board (“HMWS&SB”) pumping station at Kodandapur, Nasarlapally and Godakonda villages. HMWS&SB deposited necessary amount for the works being undertaken by A.P.Transco. The A.P.Transco started laying of foundation for tower locations in the petitioners’ land. Two locations numbering Loc No.11 and Loc.No.12 were to be erected in the petitioners’ land. Indeed foundations for the two locations were laid by the date of the suit. After allowing some time for curing, the respondents were to proceed with further works to complete the project. While so, the petitioners filed O.S.No.66 of 2008 on the file of the Junior Civil Judge, Devarakonda seeking permanent injunction restraining the defendants from laying electric lines, towers etc in the suit schedule land. According to the petitioners, the respondents did not obtain their consent before laying foundations for erection of two towers in their land. It is also their case that construction of two towers in their land causes substantial damage to their property. They also moved I.A.No.388 of 2008 seeking for temporary injunction pending disposal of the suit. The respondents filed counter resisting the temporary injunction application. The respondents pleaded in the counter that the Government granted necessary permission to A.P.Transco for extension of 132 KV supply. The A.P.Transco formulated a scheme for extension of 132 KV supply as a permanent measure to M/s.HMWS&SB water pumping station at Kodandapur, Nasarlapally and Godakondla villages in Nalgonda District. M/s.HMWS&SB had deposited an amount of Rs.899.00 lakhs through cheque on 31.11.2006. A.P.Transco has laid two locations numbering as LOC No.11 and LOC No.12 in the lands owned by the petitioners-plaintiffs on 13.12.2008. Curing of the foundations was under progress as on 15.12.2008. After completion of the curing time in a sequence of erection of towers, the tower erection and stringing line works would be commenced and the same was also informed to the land owners orally. (b) The petitioners marked four documents on their behalf as Exs.P-1 to P-4 and whereas the respondents marked seven documents on their behalf as Exs.R-1 to R-7. (c ) The trial Court, on considering the material brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the petitioners were not put on notice by the respondents about the erection of towers in their lands and as the petitioners are the owners of the petition schedule land, they made out a prima facie case and balance of convenience in their favour, and thereby proceeded to grant temporary injunction, by order dated 21.4.2009. For better appreciation, I may refer para 20 of the order passed by the trial Court, which reads hereunder:- “After careful perusal of the entire record on hand, a clear picture came out that first of all the respondents did not issue any notice to the petitioners and respondents have not obtained any permission and consent of the petitioners for laying of electric lines and erecting of towers in the petition schedule property. Further, there is no proof to show that the respondents have acquired the petition schedule lands from the petitioners. On the other hand, the petitioners have proved that the petition schedule property was purchased by them from their vendors, and it is not an assigned land and not government land. The petitioners have established prima facie case including balance of conveyance to show that the petition schedule land belong to them. The respondents without following proper procedure and without any right came upon the petition schedule land and tried to erect two towers for laying electric lines, which is causing much damage to them. Therefore, it can be held that, petitioners have proved “prima facie case, balance of conveyance in their favour, and irreparable loss going to be caused to them, if the interim injunction is not granted immediately by this Court.” 3. The respondents/defendants filed C.M.A.No.16 of 2009 on the file of the Principal District Court, Nalgonda assailing the order of the trial Court passed in I.A.No.388 of 2008 in O.S.No.66 of 2008. The learned Principal District Judge, by referring Section 164 of Indian Electricity Act, and a Division Bench judgment of this Court in Sri Sai Surya Gardens Private Ltd. v. Union of India, Ministry of Energy, New Delhi and others[1], proceeded to allow the Civil Miscellaneous Appeal setting aside the order passed by the trial Court and thereby, dismissed the temporary injunction application, by an order dated 4.12.2009. Paragraphs 14 to 16 of the order passed in the Civil Miscellaneous Appeal need to be noted and they read thus:- “14. As per Ex.R-7, in exercise of the powers conferred by G.O.Ms.No.115 dt.7-10-2003, the A.P.Transco shall have power that the Telegraphic Authority possesses under the provision of the Indian Telegraph Act,1885 (13 of 1885) for placing any wires, poles, towers etc., for transmission of electricity or for the purpose of telephonic or telegraphic communication facility necessary for the proper coordination of the works of the A.P.Transco. Thus, in view of R-1 to R-7, the defendants have power to erect towers or poles in the suit land. 15. In 2004 (2) ALT, Page No.256 (DB), in a case between Sri Sai Surya Gardens Private Ltd. vs. Union of India, Ministry of Energy, New Delhi and others, it was held that : Laying of high tension transmission lines across the property of private party in pursuance of a scheme – not unconstitutional – owner of the land cannot challenge the said action except to claim compensation. 16. Section 164 of the Electricity Act, provides that, the Government may, by order in writing, for 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.” Hence, this revision. 4. Heard learned counsel appearing for the petitioners and learned counsel appearing for the respondents. 5. Learned counsel appearing for the petitioners submits that in case of resistance or obstruction made by the land owners with regard to laying of towers in their land, the authority has to approach the District Magistrate and thereupon, the District Magistrate has to pass an order, and there being no such exercise made by the respondents in this case, the order passed by the learned District Judge in C.M.A.No.16 of 2009 is liable to be set aside restoring the order passed by the trial Court. In support of his submission, learned counsel places reliance on the Full Bench Judgment of Kerala High Court in Bharat Plywood and Timber Products Private Ltd. v. Kerala State Electricity Board, Trivandrum and others[2]. Much emphasis has been laid on paragraph 23 of the cited judgment, which reads as hereunder: - “ It is clear from the wording of Section 16, ad particularly from the expression “the District Magistrate may, in his discretion”, that an order will not be forthcoming automatically. A District Magistrate may in his discretion in a given case refuse or decline to pass an order that the telegraph authority shall be permitted to exercise the powers. The wording is significant. The District Magistrate does not grant permission to the authority. But he orders that the authority “shall be permitted”. The discretion conferred by the section on the District Magistrate is certainly a judicial discretion, and, in cases where the District Magistrate refuses to pass an order that the telegraph authority shall be permitted to exercise the powers mentioned in Section 10, it is inconceivable that the telegraph authority may, notwithstanding such refusal, continue to exercise such powers. The wording of the section is thus itself indicative of the fact that in cases of resistance or obstruction, the District Magistrate will have to decide whether the authority should be permitted or not to exercise the powers under Section 16 of the Telegraph Act. This necessarily means that the telegraph authority cannot override or ignore the resistance or obstruction and continue to exercise the powers under Section 10 notwithstanding such resistance or obstruction. It follows that, when an owner or occupier resists or obstructs the exercise of the power under Section 10, the telegraph authority will have to approach the District Magistrate for an order under sub-section (1) of S.16 and can exercise the power under Section 10 only in cases where the District Magistrate deems it fit to pass an order that he shall be permitted to do so. The power conferred by Section 10 is thus a conditional power; conditional on an order being passed under Section 16(1) by the District Magistrate that the authority may be permitted, in case of resistance or obstruction, to exercise the power. This is so not only in regard to a telegraph authority but to the public officer or any other person authorized under the Electricity Act. We are fortified in this view by what is provided by sub-section (2) of Section 16, if the telegraph authority has the power, notwithstanding the resistance or obstruction, to exercise the powers under Section 10, the resistance or obstruction by the owner or occupier, we conceive, would be an offence under Section 186 of the Indian Penal Code. That section makes voluntary obstruction to any public servant in the discharge of his public functions an offence, and such an offence is punishable with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both. Sub-section (2) of S.16 provides that if, after the making of an order under sub-section (1), any person resists the exercise of the powers under Section 10 or 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. Section 188 of the Indian Penal Code makes disobedience to an order duly promulgated by a public servant an offence. This offence, as long as it does not cause or tend to cause danger to human life, health or safety, or cause or tend to cause a riot or affray, is punishable with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both. We notice that sub-sec (2) of S.16 has a positive as well as a negative aspect; the former being the duty on the part of the person having control over the property to give all facilities for the exercise of the power under Section 10 and the latter not to resist the exercise of such power. Nevertheless, it is clear that only resistance after an order has been passed under sub-section (1) of S.16 that is deemed to be an offence under Section 188 of the Indian Penal Code . This necessarily implies that any resistance to the telegraph authority in the exercise of powers under Section 10 before an order under Section 16(1) has been passed by the District Magistrate, is not an offence. The provision in sub-section (2) of S.16 would become meaningless and absurd if even the initial resistance or obstruction is already an offence under Section 186 of the Indian Penal Code and punishable with a sentence more stringent than that which can be imposed under Section 188. We have, therefore, necessarily to understand the statute as enabling an owner or occupier or a person having control over the property over which a line is sought to be placed as having the right to resist or obstruct. When the telegraph authority is so resisted or obstructed, the District Magistrate can be approached. If he is approached, the District Magistrate would decide whether the authority should be permitted to exercise the powers. When the District Magistrate decides that he should be so permitted resistance thereafter is made an offence. And there is an obligation cast upon the owner or occupier to render all facilities for the exercise of that power. The sections (sub-sections (1) and (2) of S.16) can only be understood in this manner. In short Sections 10 and 16 have to be read together, and when there is resistance or obstruction, the power under Section 10 can be exercised only when the District Magistrate passes an order under Section 16(1) that he shall be permitted to exercise them”. 6. By referring the above judgment, learned counsel contends that the authority under the Electricity Act has same power as that of the authority under the Indian Telegraph Act, 1885. As and when there is resistance, the Telegraph Act provides that the authority has to approach the District Magistrate and the District Magistrate in his discretion in a given case may decline to pass an order. Since the petitioners raised an objection for laying of two electric towers in their land, the only course open to the respondents is to approach the District Magistrate as provided under Section 16 of the Indian Telegraph Act, 1885. Learned counsel refers Sections 10 and 16 of the Indian Telegraph Act, 1885 copiously. Sections 10 and 16 read as hereunder:- “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 [Central Government], or to be so established or maintained; (b) the [Central Government] shall not acquire any right other than that of the 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”. 16. 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 sub- 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. (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 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 person who has received the same.” 7. A plain reading of the above referred provisions of the Act indicates that if a person is to be prosecuted for the offence under Section 188 IPC, it must be preceded by an order passed by the District Magistrate. In case of inadequacy of compensation, the matter is required to be adjudicated by the District Judge. 8. Learned counsel appearing for the respondents submits that for laying electric towers to supply electricity through electric lines, consent of the owners, wherein electric towers are to be laid is not necessary and at the most, the owners are entitled to claim compensation. Learned counsel further contends that the area going to be effected by erecting the two electric towers in the land owned by the petitioners is about 0.36 guntas and it is negligible extent and even according to the value mentioned in the passbooks of the petitioners, the value of the affected area comes to about Rs.300 only. Learned counsel placed reliance on the judgment of this Court in G.V.S.Rama Krishna v. A.P.Transco[3], wherein it has been held that Section 164 of the Electricity Act, 2003 read with Section 10 of the Indian Telegraph Act, 1885 recognized the absolute power of the A.P.Transco to proceed with placing of electric supply lines or electric posts for the transmission of electricity on or over the private lands subject to the right of the owner/occupier to claim compensation if any damage is sustained by him by reason of placing of such electric supply lines. In other words, neither the acquisition of lands is necessary nor there is any need for consent of the owner or occupier. In the above referred case, the learned Single Judge of this Court considered Section 67 and 164 of Electricity Act, 2003 and Section 12(2) of the Indian Electricity Act, 1910 and observed as hereunder:- “26. A reading of Section 12(2) of the Indian Electricity Act, 1910 makes it clear that the acts specified under Section 12(1) cannot be carried out without the consent of the concerned owner or occupier. However, the question that arises for consideration is whether Section 12 of the Indian Electricity Act, 1910 is applicable to the case on hand. 27. On an analysis of Section 67 and Section 164 of the Electricity Act, 2003, it is apparent that whenever an order is passed by the appropriate Government in exercise of the powers under Section 164 of the Electricity Act, 2003 for the placing of electric lines for the transmission of electricity, conferring upon any public officer, licensee or any other person engaged in the business of supplying electricity any of the powers which the telegraph authority possesses under the Indian Telegraph Act, 1885 with respect to the placing of telegraphic lines and posts for the purposes of a telegraph established by the Government, such public officer, licensee or any other person engaged in the business of supplying electricity stands in the same position as regards the exercise of power as the telegraph authority under the Indian Telegraph Act, 1885. However, in the absence of such an order under Section 164 of the Electricity Act, 2003, if a licensee i.e., a person who has been granted a licence to transmit electricity or to distribute electricity under the Act, proposes to place electric lines, electric plant or other works necessary for transmission or supply of electricity, Section 67 of the Electricity Act, 2003 comes into operation and consequently, it is mandatory to obtain the consent of the concerned owner or occupier as required under Section 12(2) of the Indian Electricity Act, 1910. 28. In the instant case, Section 164 of the Electricity Act, 2003 has admittedly been invoked and in exercise of the powers conferred thereunder the Government of A.P conferred on the A.P.Transco the powers which the telegraph authority possess under the Indian Telegraph Act, 1885. Consequently, Section 12 of the Indian Electricity Act, 1910 has no application and the A.P.Transco , for the purpose of placing the electric supply lines in the private lands, is competent to exercise all the powers possessed by the telegraph authority under the Indian Telegraph Act, 1885.” 9. The facts, which are not in dispute, are :- The petitioners are the owners of the suit schedule land. The Government evolved a scheme of water supply to the twin cities of Hyderabad and Secunderabad and surrounding areas transforming into a Mega City and ordered the department concerned to take up the matter for implementation of the said scheme. The Government of Andhra Pradesh accorded permission to A.P.Transco for extension of 132 KV permanent power supply to pumping stations at Kodandapur, Nasarlapally and Godakondla villages in Nalgonda District. Thereupon, A.P.Transco had formulated a scheme for extension of 132 KV supply as a permanent measure to M/s.HMWS&SB. HMWS&SB deposited amount of Rs.899 lakhs for completing the project. Indeed the respondents commenced the project and laid foundations to lay electric towers in the land owned by the petitioners on 12.12.2008. 10. The only question that arises for consideration in this revision is: Whether the consent of the petitioners is necessary for laying two electric towers in the lands owned by them. 11. A learned Single Judge of this Court in G.V.S.Rama Krishna v. A.P.Transco (3 supra) has considered the scope of Section 164 of the Electricity Act, 2003 and observed that A.P.Transco can proceed with placing of electricity supply lines or electric posts for the transmission of electricity on or over the private lands subject to the right of the owner/occupier to claim compensation if any damage is sustained by him by reason of placing of such electric supply lines. In view of the settled position of law, the consent of the petitioners for laying two electric towers in their lands by the respondents is not necessary. However, the respondents are entitled to claim compensation if any damage is sustained by them by reason of placing such electric towers. 12. The learned District Judge has considered the scope of Section 164 of the Indian Electricity Act, and also the proposition of law laid down by this Court in Sri Sai Surya Gardens Private Ltd ( 1 supra) and proceeded to allow the Civil Miscellaneous appeal. I do not see any illegality or irregularity warranting interference of this Court in exercise of powers under Article 227 of the Constitution of India. 13. Accordingly, the Civil Revision Petition