* THE HON’BLE Ms. JUSTICE G. ROHINI + WRIT PETITION NO.860 OF 2009 % 26/03/2009 # 1. G.V.S. Rama Krishna and 7 others. … Petitioners Vs. $ 1. A.P. Transco, rep. by its Managing Director, Vidyuth Soudha, Erramanzil, Hyderabad., and 3 others. .. Respondents < Gist > Head Note: ! Counsel for the petitioners : Sri V.S.R. Anjaneyulu ^ Counsel for the respondents : Sri O. Manohar Reddy Reddy Govt. Pleader for Revenue Cases referred : [1] AIR 1972 KERALA 47 (FB) 2 1998(6) ALT 436 = 1998 (6) ALD 781 3 2002(1) L.S. 332 THE HON’BLE MS JUSTICE G.ROHINI W.P.NO.860 of 2009 ORDER The petitioners herein claim to be the owners and possessors of different extents of land situated in Rayanapadu village, Vijayawada Rural Mandal and Guntupalli village, Ibrahimpatnam Mandal of Krishna District. This writ petition is filed seeking a declaration that the action of the respondents in proposing to erect poles and lay two Nos. 400 KV double circuit lines through the lands of the petitioners as arbitrary, illegal and in violation of the provisions of the Electricity Act, 2003. It is pleaded by the petitioners that originally a 400 KV line under Vijayawada Power Transmission Scheme was sought to be laid in the property belonging to the Railways. However, subsequently, the proposal was changed and the respondents wanted to form the line through the lands belonging to certain ryots. Since the said ryots brought influence from various levels, the stream of line was again changed and now the respondents intended to form the lines through the lands belonging to the petitioners. Pursuant thereto, on 16-01- 2009, the officials of the respondents came to the land of the petitioners and put up flags stating that the work would be started in fourth week of January, 2009. It is alleged by the petitioners that the officials of the respondents entered into their lands without obtaining the consent of the petitioners and without following the process known to law. Though the petitioners raised protest, ignoring the same the respondents proceeded further to erect the poles in the lands belonging to the petitioners. Hence, this writ petition assailing the action of the respondents contenting inter alia that the respondents are bound to initiate appropriate proceedings for acquisition of the lands or the consent of the owners ought to have been obtained by private negotiations before entering into their property. While alleging that no scheme is framed and published as required under the law before proceeding to lay the electric lines in question, it is contended that the impugned action is liable to be declared as arbitrary and illegal on that ground also. In the counter-affidavit filed by the 1st respondent it is stated that the Government issued G.O.Ms.No.115, dated 07-10-2003 authorizing the A.P. Transco to place the electricity lines for the transmission of the electricity or for the purpose of telephonic or telegraphic communications under the provisions of the Indian Telegraph Act, 1885. In view of the said powers conferred on the Transmission Corporation, a notification was issued and the same was published in the A.P. Gazette dated 17-07-2007 notifying the transmission scheme for two Nos.400 KV double circuit lines for loop-in and loop-out of Nunna-Srisailam / Narasaraopet, 400 KV double circuit lines to VTPS(Stage-IV). The Transco also envisaged the erection of 400 KV LILO of 400 KV Srisailam-Nunna DC Line to VTPS-IV stage at Vijayawada to evacuate 500 MV power generated from VTPS-IV stage. This is essential to strengthen the 400 KV network to improve and stabilize the voltage profile of the power system network. It is further stated that laying of the electric lines is with a view to augment the power supply and the total cost of the project is Rs.19 Crores and if the line is not laid before 1st March, the department would be suffering a loss of Rs.12 Crores per day as the VTPS would be producing 500 MW power and the same has to be evacuated by March, 2009. So far as the title claimed by the petitioners in respect of the lands in question and the allegation that the respondents have illegally entered into possession of their land, it is stated that the respondents have followed the procedure contemplated under the provisions of the Electricity Act, 2003 and a Gazette notification was issued on 17-07-2007. Since no objections were received pursuant to the said Gazette notification, the Transco decided to proceed ahead with the scheme. Though the plea that initially it was intended by the respondents to lay the line in the property belonging to the Railways is not disputed, it is explained that since the same requires lot of time to get necessary clearances and due to certain technical reasons the proposal has been changed and it is decided to lay the line adjacent to the existing line. It is explained that the existing line was erected more than ten years ago and by laying a new parallel line the farmers would be put to minimum inconvenience. Thus it is pleaded that the decision to lay the present line is only in the best interest of the farmers and not for any other extraneous reasons as alleged by the petitioners. As a matter of fact series of meetings were held in the office of the Sub- collector and most of the persons in whose lands the lines are now proposed to be laid attended the said meetings and gave their consent for laying the line. Some of the petitioners herein also attended the meeting and agreed for laying the lines through their lands. It is also explained that marking for commencement of construction of the lines in question was taken on 29-12-2008 after serving notices to all the concerned farmers through registered post. A notice was also pasted at Panchayat Office for intimation to the farmers. Thus it is contended that the action taken by the respondents is strictly in accordance with the provisions of the Electricity Act, 2003 and the acquisition of the land as contended by the petitioners is not provided under the law. It is further explained that since the existing line of 220 KV would be dismantled after the new line is laid, no damage would be caused to the petitioners as alleged. An additional counter-affidavit has also been filed on behalf of the respondents stating that as the total estimated cost of the scheme was decreased from Rs.621.45 Crores to 428.06 Crores, in the place of the transmission scheme published earlier on 17.7.2007, a fresh scheme was made and published in the Gazette dated 22.07.2008 and the same was also published on 23.07.2008 in Hindu and Eenadu dailies. I have heard the learned counsel for both the parties and perused the material on record. The Electricity Act, 2003 (Central Act 36 of 2003) has been enacted consolidating the laws relating to generation, transmission, distribution, trading and use of electricity and thereby repealing the Indian Electricity Act, 1910, Electricity (Supply) Act, 1948 and Electricity Regulatory Commissions Act, 1998. The said Act came into force w.e.f. 10.06.2003. The material on record shows that in exercise of the powers conferred under Section 164 of the Electricity Act, 2003, the Government of A.P. issued G.O.Ms.No.115, Energy PR.III, dated 07-10-2003 thereby conferring upon the A.P. Transco the powers for placing of the electric supply lines or electric plant for the transmission of electricity or for the purpose of telephonic or telegraphic communications necessary for the proper coordination of works that a telegraph authority possesses under the provisions of the Indian Telegraph Act, 1885. In exercise of the said powers conferred under G.O.Ms.No.115, dated 7.10.2003, the A.P. Transco issued a notification dated 11.6.2007 notifying its proposal to erect transmission lines and sub- stations and associated bay extensions under Vijayawada Power Transmission Scheme with a total estimated cost of Rs.621.45 Crores proposed to be completed during the year 2009-2010. The said Transmission Scheme included erection of two Nos. 400 KV double circuit lines for loop in and loop out of Nunna – Srisailam/ Narasaraopet 400 KV double circuit lines to Vijayawada Thermal Power Station (VTPS)-IV for the evacuation of power from VTPS-IV - 2 x 5 kms. The said notification was published in the A.P. Gazette dated 17-07-2007 inviting objections if any from any person interested/aggrieved to be submitted to the Chief Engineer, 400 KV, A.P. Transco within two months from the date of publication. Subsequently, in view of decrease in the cost of the scheme a fresh notification dated 14.7.2008 was issued in the place of the scheme dated 17.07.2007 proposed earlier. The said notification was published in A.P. Gazette dated 22.7.2008 as well as in two dailies namely the Hindu and Eenadu dated 23.7.2008. As per the said notification, the scheme was proposed for completion during the year 2010 - 2011 and fresh objections were invited within two months from the date of publication of the said notification. It is the specific case of the respondents that the A.P. Transco has not received any objections either from the petitioners herein or from any other person in response to the notification dated 22.7.2008 and therefore as per the powers conferred on A.P. Transco under G.O.Ms.No.115, dated 7.10.2003, the respondents are entitled to exercise all the powers possessed by the telegraph authority under the Indian Telegraph Act, 1885 for the purpose of placing the transmission lines as published in the notification dated 22.7.2008 by entering the lands belonging to the petitioners without acquiring the same. However, the learned counsel for the petitioners contended that the notification dated 22.7.2008 is not a sanctioned scheme as required under Section 42 of the Electricity (Supply) Act, 1948. That apart, since the said notification is vague and lacking material particulars relating to the proposed route for laying the transmission lines so as to enable the aggrieved persons to raise their objections, it cannot be said that it is in compliance with Section 29 (2) of the Electricity (Supply) Act, 1948. Thus, it is contended that there is no valid sanctioned scheme and consequently the respondents cannot proceed with the erection of the transmission poles and lines without obtaining the consent of the owners/occupier as required under Section 12 of the Indian Electricity Act, 1910. As noticed above, prior to the enactment of the Electricity Act, 2003, the Indian Electricity Act, 1910, and the Electricity (Supply) Act, 1948 were in force and there were various provisions governing erection of transmission lines or other connected work through, in or upon or under the private lands. As per Section 12 of the Indian Electricity Act, 1910, the consent of the local authority or of the concerned owner or occupier is necessary to enable the licensee to lay down or place any electric supply line or other work in, through or against any building or on, over or under any land not dedicated to public use whereon any electric supply line or work has not already been lawfully laid down by such licensee. Under Section 51 of the Electricity Act, 1910, it was permissible for the Government to confer upon any public officer, Transmission Utility, Transmission Licensee or any other person engaged in the business of transmission or supplying energy to the public, any of the powers which the telegraph authorities possess under the Indian Telegraph Act, 1885 for the placing of electric supply lines. That apart, Section 28 of the Electricity (Supply) Act, 1948, provided for preparation of a sanctioned scheme relating to the laying of transmission lines by a generating company and under Section 29 every such scheme estimated to involve a capital expenditure exceeding such sum as may be fixed by Central Government shall be submitted to the Central Electricity Authority constituted under the said Act for its concurrence. That apart, sub-section (2) of Section 29 mandated that the generating company shall cause such scheme to be published in the Official Gazette of the State and in local news papers granting not less than two months time to the persons interested to make representations on such scheme. Section 42 of the Electricity (Supply) Act, 1948, further provided that where a provision is made in a sanctioned scheme for placing electric supply lines, notwithstanding anything contained in Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910, the State Electricity Board shall have all the powers which the telegraph authority possesses under Part-III of the Indian Telegraph Act, 1885 with regard to a telegraph established by the Government for placing of any wires, poles and etc., for the transmission of electricity. The proviso to Section 42 (1) further made it clear that where a sanctioned scheme does not make a provision as aforesaid, all the provisions of Sections 12 to 19 of the Indian Electricity Act, 1910 shall apply. A Full Bench of High Court of Kerala in Bharat Plywood and Timber Products Private Ltd., Vs. Kerala State Electricity Board, Trivandrum and others([1]) having interpreted the scope and object of Sections 12 and 51 of Indian Electricity Act, 1910 held that a licensee who has not been empowered by the State Government under Section 51 of the Indian Electricity Act, 1910 cannot place any electric supply lines in or over any property without the consent of the owner or occupier thereof. However, a person authorised under Section 51 can do so without the consent of the owner or occupier. The Full Bench further observed as under : Though Section 12 enumerates various acts that can be done by a licensee for the purpose of laying down or placing electric supply-lines, such acts can be done only with the consent of the local authority or of the owner or occupier concerned (Section 12 (2) ). This is no power at all for. Without the consent nothing can be done. What can be done, therefore, under Section 12 cannot be compared with the exercise of powers under Section 10 of the Telegraph Act by a person empowered to do so under Section 51 of the Electricity Act. So far as the scope of Section 42 of the Electricity (Supply) Act, 1948 is concerned, it was held by this Court in Bhaskara Housing (P) Ltd., Hyderabad Vs. APSEB, Hyderabad ([2]) as under : A cumulative reading of provisions of sub- section.(1) of Section.42 of the Electricity(Supply) Act,1948 with that of proviso make it apparently clear that if the sanctioned scheme provides for any of the things contemplated under Sections.12 to 16, 18 and 19 of the Indian Electricity Act, 1910, the officers of the Board can exercise similar powers conferred upon the authorities of the Telegraph Department under Part-III of the Indian Telegraph Act,1885. In the instant case, since the sanctioned scheme provides for laying of lines and construction of towers, it should be held that the Board and its officers have the power to invoke the provisions of Part-III of the Indian Telegraph Act, 1885 and, therefore, prior consent is not necessary as required under Section 12 of the Indian Electricity Act, 1910. An identical question was again considered in B.Krishna Mandadi Vs. Power Grid Corporation of India Limited, Hyderabad ([3]) and it was held as under : A generating company engaged in generation, transmission and supply of electricity is empowered under the provisions of Electricity (Supply) Act, 1948 to lay electric poles, construct transmission towers on any private land without giving any notice and without causing damage to the property provided there is a scheme published as required under Section 28. Even while erecting transmission lines, if any damage is caused, by reason of Section 10 of the Telegraph Act read with Section 42 (1) and (2) of the Electricity (Supply) Act, 1948, a generating company has to pay compensation for the damage sustained by the owners of the land or owners of the crops. From the ratio laid down in the above decisions, it is clear that prior to the enactment of Electricity Act, 2003, consent of the owner or occupier was necessary where there was no authorization under Section 51 of the Indian Electricity Act, 1910. Similarly, where a sanctioned scheme is published as required under Section 28 read with Section 42 of the Electricity (Supply) Act, 1948, transmission towers or lines can be laid on any private land without giving any notice and without causing damage to the property. However, if any damage is caused, compensation shall be paid for the damage sustained as provided under Section 10 of the Indian Telegraph Act, 1885. Both the Indian Electricity Act, 1910 and the Electricity (Supply) Act, 1948 stood repealed under the Electricity Act, 2003 which came into force with effect from 10.06.2003. Under the new Act i.e., Electricity Act, 2003 though there is no provision with regard to preparation and sanctioning of any scheme relating to establishment of generating stations, sub-stations or transmission lines as required under Section 28 of the repealed Electricity (Supply) Act, 1948, provisions similar to Sections 12 and 51 of the Indian Electricity Act, 1910 have been incorporated under Section 67 and Section 164 respectively. The said Sections 67 & 164 of the Electricity Act, 2003 may be extracted hereunder : S. 67 Provision as to opening up of streets, railways, etc. (1) A licensee may, from time-to-time but subject always to the terms and conditions of his licence, within his area of supply or transmission or when permitted by the terms of his licence to lay down or place electric supply lines without the area of supply, without that area carry out works such as- (a) to open and break up the soil and pavement of any street, railway or tram-way; (b) to open and break up any sewer, drain or tunnel in or under any street, railway or tramway; (c) to alter the position of any line or works or pipes, other than a main sewer pipe; (d) to lay down and place electric lines, electrical plant and other works; (e) to repair, alter or remove the same; (f) to do all other acts necessary for transmission or supply of electricity. (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; (c) the nature and period of notice to be given by the licensee before carrying out works; (d) the procedure and manner of consideration of objections and suggestions received in accordance with the notice referred to in clause (c); (e) the determination and payment of compensation or rent to the persons affected by works under this section; (f) the repairs and works to be carried out when emergency exists; (g) the right of the owner or occupier to carry out certain works under this section and the payment of expenses therefor; (h) the procedure for carrying out other works near sewers, pipes or other electric lines or works; (i) the procedure for alteration of the position of pipes, electric lines, electrical plant, telegraph lines, sewer lines, tunnels, drains, etc.; (j) the procedure for fencing, guarding, lighting and other safety measures relating to works on streets, railways, tramways, sewers, drains or tunnels and immediate reinstatement thereof; (k) the avoidance of public nuisance, environmental damage and unnecessary damage to the public and private property by such works; (l) the procedure for undertaking works which are not reparable by the Appropriate Government, licensee or local authority; (m) the manner of deposit of amount required for restoration of any railways, tramways, waterways, etc; (n) the manner of restoration of property affected by such works and maintenance thereof; (o) the procedure for deposit of compensation payable by the licensee and furnishing of security; and (p) such other matters as are incidental or consequential to the construction and maintenance of works under this section. (3) A licensee shall, in exercise of any of the powers conferred by or under this section and the rules made thereunder, cause as little damage, detriment and inconvenience as may be, and shall make full compensation for any damage, detriment or inconvenience caused by him or by any one employed by him. (4) Where any difference or dispute [including amount of compensation under sub-section (3) arises under this section, the matter shall be determined by the Appropriate Commission. (5) The Appropriate Commission, while determining any difference of dispute arising under this section in addition to any compensation under sub-section (3), may impose a penalty not exceeding the amount of compensation payable under that sub- section. S. 164 Exercise of powers of Telegraph Authority in certain cases The Appropriate Government may, by order in writing, for the placing of electric lines or electrical plant for the transmission of electricity or for the purpose of telephonic or telegraphic communications necessary for the proper co-ordination of works, confer upon any public officer, licensee or any other person engaged in the business of supplying electricity under this Act, subject to such conditions and restrictions, if any, as the Appropriate Government may think fit to impose and to the provisions of the Indian Telegraph Act, 1885 (13 of 1885), any of the powers which the telegraph authority possesses under that Act with respect to the placing of telegraph lines and posts for the purposes of a telegraph established or maintained, by the Government or to be so established or maintained. As could be seen, though Section 67 (1) of the Electricity Act, 2003 is identical to Section 12 (1) of the Indian Electricity Act, 1910, Section 67 (2) of the Electricity Act, 2003 varies from Section 12 (2) of the repealed Indian Electricity Act, 1910. Section 67 (2) does not say that the consent of the owner or occupier is mandatory but the matters where the property of other persons is affected by the works of the licensee have been left to be provided by the appropriate Government by way of Rules in exercise of its rule making power. Admittedly no such Rules have been made till today. What shall be done till such Rules are made is provided under Section 185 of the Electricity Act, 2003 and the same may be extracted hereunder : S. 185 Repeal and saving (1) Save as otherwise Provided in this Act, the Indian Electricity Act, 1910 (9 of 1910), the Electricity (Supply) Act, 1948 (54 of 1948) and the Electricity Regulatory Commissions Act, 1998 (14 of 1998) are hereby repealed. (2) Notwithstanding such repeal,- (a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission, authorisation or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act; (b) the provisions contained in sections 12 to 18 of the Indian Electricity Act, 1910 (9 of 1910) and rules made thereunder shall have effect until the rules under sections 67 to 69 of this Act are made; ( emphasis supplied ) (c) the Indian Electricity Rules, 1956 made under S.37 of the Indian Electricity Act,1910 (9 of 1910) as it stood before such repeal shall continue to be in force till the regulations under section 53 of this Act are made. (d) all rules made under sub-section (1) of S.69 of the Electricity (Supply) Act, 1948 (54 of 1948) shall continue to have effect until such rules are rescinded or modified, as the case may be; (e) all directives issued, before the commencement of this Act, by a State Government under the enactments specified in the Schedule shall continue to apply for