IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:28-1-2008 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.No.36566 of 2007 and M.P.No.1 of 2007 T.S.T.Kaznavi ... Petitioner vs. 1.Tamil Nadu Electricity Board rep. By its Chairman NPKKR Maligai 800 Anna Salai Chennai 600 002. 2.The Chief Engineer T.N.E.B. Chennai south NPKKR Maligai 800 Anna Salai Chennai 600 002. 3.The Assistant Divisional Engineer TNEB Guduvancherry Kancheepuram District. 4.The Assistant Engineer TLC/TNEB, Chrompet Chennai. ... Respondents Writ petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus for bearing the respondents from interfering with the peaceful possession and enjoyment of the petitioner's landed property situated at 117 Pandur Village, Chengelpet Taluk, Kancheepuram District, Comprised in Survey No. 5/2, bearing Patta No. 409 measuring an extent of 1.80 acres wihout due process of law. For petitioner : Mr. R.Vasudevan for Mr.T.Susindran For respondents : Mr.P.S.Raman Addl.Advocate General for Mr.R.Subbiah Spl.Govt. Pleader https://hcservices.ecourts.gov.in/hcservices/ ORDER The writ petitioner is the owner of the vacant landed property to an extent of 1.80 acres comprised in Survey No.5/2 at No.117, Pandur Village, Chengelpet Taluk, Kancheepuram District, having purchased the same under a registered sale deed dated 30.11.2006 and the patta in respect of the property stood in the name of his vendor Mrs.Vijayalakshmi in Patta No.409, the petitioner has applied for transfer of patta in his name. According to the petitioner, right from 1939, the predecessors in title of the petitioner have been in continuous possession and enjoyment of the property. On 16.11.2007, some contract labourers employed by the Assistant Divisional Engineer, Tamil Nadu Electricity Board, Guduvancherry, third respondent herein, have brought building materials and entered into the lands of the petitioner and started digging and made excavation, in order to erect huge transmission high-tension electric line tower. On 19.11.2007, the petitioner has sent a telegram to the first respondent, the Chairman, Tamil Nadu Electricity Board and has also issued a legal notice through his counsel on the same day. The petitioner apprehends that the respondents may proceed with the proposed platform work for erecting the high tension electric line tower in his property. Hence, the petitioner has filed the present writ petition to forbear the respondents from interfering with his peaceful possession and enjoyment of the above said property without resorting to due process of law. According to the petitioner, the conduct of the respondents in entering into the patta land belonging to the petitioner is unauthorised, especially when the property is not acquired by the Electricity Board, even if it is required for public purpose. He also challenges the conduct of the respondents, as it is in violation of the principles of natural justice, and there was no proceedings under the Land Acquisition Act. 2. The Tamil Nadu Electricity Board has filed counter affidavit. According to the respondent Electricity Board, as per Sections 164 and 185(2)(a) of the Electricity Act, 2003, the Board has the power of the "Telegraph Authority" under the Indian Telegraph Act,1885, with regard to laying of lines and erecting poles. The said power has already been conferred on the Electricity Board by the "Appropriate Government", viz., Government of Tamil Nadu under Section 51 of the Indian Electricity Act, 1910 in G.O.Ms.No.1455 (P.W.D.) dated 06.06.1961 and extended by Notification dated 28.06.2004, and as such the Electricity Board being the "Transmission Licensee" under the Electricity Act,2003, is not bound by the provisions of Sections 12 to 16, 18 and 19 of Indian Electricity Act, 1910. 2(a). According to the respondent Electricity Board, pursuant to the policy decision taken by the Union of India to establish a National Power Grid, authorised the Power Grid Corporation of India Ltd., to erect a 400 K.V. Transmission system from Kolar to Sriperumbudur 400 K.V.Circuit and link the same with Neyveli 400 K.V. Sub Station. The establishment of 400 K.V. Sub https://hcservices.ecourts.gov.in/hcservices/ Station at Melakottaiyur requires to be synchronised with the commissioning of Talcher Stage II in Orissa, so that the power flow from Talcher Stage II will be available to Chennai in time. Under the said Scheme, the Power Grid Corporation of India Ltd. proposed to erect a 400 K.V. Sub-station at Melakottaiyur near S.P.Koil on the basis of the locational and technical advantage to link both the Kolar SPDR and the Neyveli - Chennai Grid. 2(b). The said proposal for establishing a new 400/230 K.V. Sub Station at Melakottaiyur (Kalivanthapattu) is planned for ensuring the stabilised and reliable supply conditions in Southern parts of Chennai area. The said location is contiguous to Chennai city and has the infrastructure facilities like road, electricity, etc. The respondent Electricity Board considered the proposal and sanctioned it on 09.09.2002 with an estimated cost of Rs.3362 lakhs. It authorised the Tamil Nadu Electricity Board to invoke the provisions of Section 42 of the Electricity (Supply) Act,1948 and exempted the provisions of Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910, and the work had to be taken up after ensuring budget provision. 2(c). Due to the financial difficulties experienced by the Board, the work of erecting 400/230 K.V. Sub Station was entrusted to the Power Grid Corporation of India Ltd., and the work of erecting 230 K.V. Lines connecting the proposed Sub Station was retained by the respondent Electricity Board and the revised proposal was considered and the same was sanctioned in Permanent B.P.(CH)No.410 (Technical Branch) dated 07.09.2006 at an estimated cost of Rs.5273.57 lakhs in partial modification of the Notification of the Board dated 09.09.2002. As per the sanction, the Electricity Board being a "Transmission Utility" and the "Licensee", will exercise the powers of Telegraph authority by virtue of the provisions contained in Section 164 read with Sub- section (2)(a) of Section 185 of the Electricity Act,2003. 2(d). According to the respondent Electricity Board, it conducted extensive survey including the environmental considerations, road crossing, power line crossing, telecommunication line crossing, railway line crossing and river crossing apart from inhabited area. It is the case of the respondent Electricity Board that almost 90% of the work under the Scheme was completed and the disputed site is the one remaining part to be completed. It is the further case of the Electricity Board that the Power Grid Corporation India Ltd., has already completed the work of erecting sub-station and commissioning of the same is being postponed due to the delay in completing the present feeder lines and any further delay will seriously impair the capacity of the Electricity Board. It is also stated that before the Scheme was formulated, extensive survey was made and the same was also published in the local newspapers as well as in Government Gazette and objections were called for and the petitioner, who has not raised any objection at that time, cannot raise the plea that no prior notice was issued. https://hcservices.ecourts.gov.in/hcservices/ 2(e). It is the further case of the respondent Electricity Board that, while exercising powers of the Telegraph authority under the Indian Telegraph Act,1885, the Electricity Board need not get the consent of the land owners before putting up towers and drawing overhead lines. The Electricity Board is empowered to erect poles and draw electrical lines without any prior permission from the landowner. In spite of the same, the Electricity Board has published the brief details of the Scheme in the local newspapers as well as in the Government Gazette. 2(f). It is also denied that the Electricity Board can erect tower and draw overhead lines only after acquiring the lands from the petitioner under the provisions of the Land Acquisition Act. Since the Electricity Board being a Transmission Utility exercising the powers under Section 164 r/w Section 185(2)(a) of the Electricity Act,2003, the respondent Board can implement the Scheme. It is also the further case of the respondent Electricity Board that for erecting tower and drawing overhead line, the Electricity Board need not acquire properties and to take over the title of the same. 3. Mr.R.Vasudevan, learned counsel appearing for the petitioner would submit that the power of respondent Electricity Board in erecting the tower as well as drawing overhead lines is subject to the right to property of the citizens and therefore, the conduct of the respondent Electricity Board in unauthorisedly entering into the private property of the petitioner without following due process of law is abuse of all canons of law. His further submission is that though the petitioner being the owner of the property having purchased the same for valuable consideration and the revenue records stood in the name of the vendor of the petitioner, the respondent Electricity Board failed to give notice to the petitioner and not considered the objections raised by the petitioner, while proceeding with the work. The entire process as stated by the respondent Electricity Board is opposed to the basic principles of law. 4. On the other hand, Mr.P.S.Raman, learned Additional Advocate General has taken me through various provisions of the Indian Electricity Act, 1910, Electricity (Supply) Act,1948 and the Electricity Act,2003, apart from the provisions in Indian Telegraph Act,1885. He would also rely upon various judgements to show that when the powers are enforced by the respondent Electricity Board as Telegraph authority under the Indian Telegraph Act,1885, especially under Section 10, it does not require any notice to be sent to the occupiers or owners and the conduct will not amount to acquisition. In that regard he would rely upon the judgements reported in E.Venkatesan vs. Chairman, T.N.Electricity Board, Madras (AIR 1997 Madras 64) and Nithyanandam,M. & 2 others vs. The Chairman, Tamil Nadu Electricity Board, Madras & 3 others (1994 WLR 445). He would also submit that the respondent Electricity Board has acted as a "Transmission Licensee" under the Electricity Act and not as Distribution Licensee or Generating Company, which can be also individual persons while such act as "Transmission Licensee" can https://hcservices.ecourts.gov.in/hcservices/ be done only by the Board or by the Government Company specified by the State Government as per Section 39(1) of the Electricity Act,2003. In that way he would distinguish the judgement of this Court in W.P.No.49172 of 2006 dated 18.01.2007. His further submission is that erecting of electric poles as well as drawing the overhead lines by the respondent Electricity Board as Transmission Utility Organisation/State Transmission Utility does not require any acquisition proceedings be completed before proceeding with the work. He submits that as a State Transmission Utility, as per the provisions of the Electricity Act, 2003, the respondent Electricity Board has powers under the Indian Telegraph Act, 1885 especially under Section 10. According to him, the respondent Electricity Board is empowered to maintain telegraph line under or across any immovable property and it has the right of user of the property for the purpose of drawing electrical line and erecting posts and while doing that, the Electricity Board has to see that as little damage as possible should be done to the property and in cases where certain damages are caused, the owners of the property are entitled for compensation as per the procedure for payment of compensation under Section 16 of the Indian Telegraph Act,1885 and therefore, it is not as if the petitioner has no remedy at all. He would also submit that almost entire work has been completed and the only remaining work is in respect of disputed property and because of it, electrical supply which has been taken from Orissa is stalled causing enormous loss not only to the Board, but also to the people as well as to the consumers. 5. I have heard the learned counsel for the petitioner as well as respondents and perused the entire records. 6. On the factual situation, it is not in dispute that the petitioner is the owner of the property as stated above. As it is placed by the learned Additional Advocate General, the work of erecting 230 K.V. Line which is retained by the Tamil Nadu Electricity Board is almost completed, except in respect of the disputed property belonging to the petitioner, which is actually in the last edge of the entire scheme. 7. It is also seen that the Tamil Nadu Electricity Board in its Permanent B.P.(CH)No.410 Technical Branch dated 07.09.2006 has granted revised administrative approval for erection of 230 K.V. Lines from Melakottaiyur 400/230 KV SS to Kadapperi 230 KV SS, Acharapakkam 230 KV SS, SP Koil 230 KV SS and Siruseri 230 KV SS in combination of multi circuits and 230 KV DC circuits, renaming Melakottaiyur 400 KV SS as Kalivanthapattu 400 KV SS. By the Notification issued as per Section 185(2)(a) of the Electricity Act,2003, Tamil Nadu Electricity Board has acted as a Transmission Utility and Licensee, exercising the powers as telegraph authority. The said Board proceedings is as follows: https://hcservices.ecourts.gov.in/hcservices/ "TECHNICAL BRANCH Permanent B.P.(CH)No.410 Dated:07.09.2006. Viya, Aavani.22, Thiruvalluvar Aandu 2037. READ: Chairman's approval dated 03.09.2006. PROCEEDINGS: 1. The Tamil Nadu Electricity Board hereby approves revised proposal for erection of 230 KV lines from Melakottaiyur 400/230 KV SS to Kadapperi 230 KV SS, Acharapakkam 230 KV SS, SP Koil 230 KV SS and Siruseri 230 KV SS in combination of multi circuits and 230 KV DC circuits in Chengalpattu EDC at an estimated cost of Rs.5273.57 lakhs Gross & Rs.4994.00 lakhs Nett, in partial modification of (Per) B.P.(FB)No.130 Dt.09.09.2002 duly cancelling the approval already accorded for the above works and renaming of Melakottaiyur 400 KV SS as Kalivanthapattu 400 KV SS. The detailed estimate is annexed to these proceedings. 2. The expenditure is chargeable to Tamil Nadu Electricity Board - Funds - Capital Expenditure - Chengalpattu EDC - A/C Code No.14.646. 3.By virtue of the provisions contained in sub-section (2)(a) of section 185 of the Electricity Act,2003, the Board being the Transmission Utility and Licensee will exercise the powers of the Telegraph Authority under the provisions of section 164 of the Electricity Act,2003, which have already been conferred upon the Board under section 51 of the Indian Electricity Act,1910. 4.The work is to be taken up after ensuring budget provision." 8. It is also seen that the Tamil Nadu Electricity Board for the purpose of construction of Sub Station and Transmission lines to transmit and distribute powers to local centres has issued Notification in the newspapers on 05.09.2006, which also contain the erection of Kalipattu (Melakottaiyur) SP Koil of Tharamani - 230 KV SS. It is also seen that the respondent Electricity Board has followed the technical report of the Government of India before formulating the scheme and also studied the various aspects, including statutory regulations for crossing of roads, power lines, telecommunication lines, railway tracks etc., and after thorough study, estimate has also been arrived at for the said scheme and a gazette notification has also been issued on 01.10.2003. https://hcservices.ecourts.gov.in/hcservices/ 9. Under the Electricity (Supply) Act,1948, the Electricity Board had the power of placing any wires or poles, wall brackets, stays apparatus and appliances for transmission and distribution of electricity or for the transmission of telegraphic or telephonic communications necessary for the proper co-ordination of the works of the Board, which power the telegraph authority possesses under Indian Telegraph Act,1885. However, the said power of the Board under the said Act was notwithstanding anything contained in Sections 12 to 16, 18 and 19 of the Indian Electricity Act,1910 and without prejudice to the requirement of Section 17 of the said Act. Section 42 of the Electricity (Supply) Act,1948 is as follows: " 42. Powers to Board for placing wires, poles, etc. - [(1)] Notwithstanding anything contained in Sections 12 to 16 and 18 and 19 of the Indian Electricity Act,1910 (9 of 1910), but without prejudice to the requirements of Section 17 of that Act "where provision in such behalf is made in a sanctioned scheme, the Board shall have, for the placing of any wires, poles, wall-brackets, stays apparatus and appliance for the transmission and distribution of electricity, or for the transmission of telegraphic or telephonic communications necessary for the proper co-ordination of the works of the Board, all the powers which the telegraph authority possesses under Part III of the Indian Telegraph Act,1885 (13 of 1885) with regard to a telegraph established or maintained by the Government or to be so established or maintained: Provided that where a sanctioned scheme does not make such provision as aforesaid, all the provisions of Sections 12 to 19 of the first mentioned Act shall apply to the works of the Board. [(2)] A generating company may, for the placing of wires, poles, wall-brackets, stays apparatus and appliances for the transmission of electricity, or for the transmission of telegraphic or telephonic communications necessary for the proper co-ordination of the works of the generating company, exercise all or any of the powers which the Board may exercise under sub- section (1) and subject to the conditions referred to therein.]" 10. In the Indian Electricity Act,1910, Sections 12 to 16, deal with the "works" relating to the provisions for opening and breaking up of streets, railways and tramways by the Licensee being a person licensed to supply energy, as defined under Section 2(b) of the said Act. The said provision authorised the Licensee to open and break up the soil and pavement of any street, railway or tramway; open and break up any sewer, drain or tunnel in or under any street, railway or tramway; do all other acts necessary https://hcservices.ecourts.gov.in/hcservices/ for the supply of energy subject to the terms and conditions of the licence. The Licensee has also been authorised to lay down or place any electric supply-line or any other work in through or against any building, or on, over or under any land not dedicated to public use, where the supply-line or work had already been laid down and in cases where the owner or occupier of any building or land make objections, any suitable alterations can be made on necessary directions by the District Magistrate or in a Presidency-town, the Commissioner of Police. 11. Section 13 of Indian Electricity Act,1910 imposes the obligation on the Licensee to issue notice. Section 14 enables the Licensee to alter the position of any pipe or wires of any place. Section 15 enables the Licensee to dig or sink any trench for laying down any new electric supply-lines or other works near to which any sewer, drain, water course or work under the control of the State Government has been lawfully placed. Section 16 enables the Licensee to open or break up the soil or pavement of any street, railway or tramway or any sewer, drain or tunnel. Likewise, Section 18 of the Act enables the Licensee to draw overhead lines across any street, railway, tramway, canal or waterway, by giving necessary communication to the State Government. It also provides for certain procedure to remove any tree standing or lying near an overhead line, after obtaining necessary permission from the Magistrate of the First Class or in the presidency-town, the Commissioner of Police. 12. Section 17 of the Indian Electricity Act,1910 imposes the duty on the Licensee to give notice in writing to the telegraph authority and the Licensee shall act as per the reasonable requirements laid down by the telegraph authority. The said section reads as under: " Section 17. Notice to telegraph authority.- (1) A licensee shall before laying down or placing, within ten yards or any parts of any telegraph-line, any electric supply-lines or other works [not being either service- lines, or electric supply-lines for the repair, renewal or amendment of existing works of which the character or position is not to be altered], give not less than ten days' notice in writing to the telegraph authority, specifying- (a) the course of the works or alterations proposed, (b) the manner in which the works are to be utilised, (c) the amount and nature of the energy to be transmitted, and (d) the extent to, and manner in, which (if at all) earth returns are to be used, and the licensee shall conform with 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; https://hcservices.ecourts.gov.in/hcservices/ 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 supply-lines 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 alteration has arisen. (2) Where the works to be executed consist of the laying [or placing] of any service-lines, 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." 13. Now, coming to the provisions of the Indian Telegraph Act,1885, Part III Section 10 of the said Act empowers the telegraph authority to place and maintain telegraph lines and posts. The said provision makes it very clear that while doing the said work to maintain telegraph-line upon any immovable property, the Central Government does not use the power of acquisition of any right except the right of user in respect of the property under, over, along, across, in or upon which the telegraph authority places any telegraph-line. It also makes clear that while performing the function, the authority shall do all necessary things so as to make as little damage as possible. In cases of any damage caused and disputes raised in that regard, Section 16 provides the procedure for settling such disputes. It makes clear that when an occupier resists or obstructs the conduct of the authority, then the District Magistrate is empowered to grant permission to the authority and in cases where any dispute arises regarding the sufficiency of compensation to be paid under Section 10(d), then the procedure is contemplated to be followed by the District Judge within whose jurisdiction the property is situated. The said provisions are as follows: " Section 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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 person 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 (45 of 1860).