IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6993 of 2010 1. RAM NARESH SINGH S/O LATE BHOLA NATH SINGH R/O VILL.- BHURKUNDA, P.O.- ANKURI, P.S.- GOH, DISTT.- AURANGABAD (BIHAR) 2. GIRJESH KUMAR SINGH S/O LATE KEDAR NATH SINGH R/O VILL.- BHURKUNDA, P.O.- ANKURI, P.S.- GOH, DISTT.- AURANGABAD (BIHAR) Versus 1. THE POWER GRID CORPORATION OF INDIA LTD., THROUGH ITS MANAGING DIRECTOR, HAVING OFFICE AT ALANKAR PALACE, BORING ROAD, PATNA 2. THE MANAGING DIRECTOR, POWER GRID CORPORATION HAVING OFFICE AT ALANKAR PALACE, BORING ROAD, PATNA 3. THE BIHAR STATE ELECTRICITY BOARD THROUGH ITS SECRETARY HAVING OFFICE AT VIDYUT BHAWAN BAILEY ROAD, PATNA 4. THE CHAIRMAN, BIHAR STATE ELECTRICITY BOARD HAVING OFFICE AT VIDYUT BHAWAN BAILEY ROAD, PATNA 5. THE DISTRICT MAGISTRATE, AURANGABAD 6. THE SUPERINTENDENT OF POLICE, AURANGABAD 7. THE GRAM PANCHAYAT BHURKUNDA THROUGH ITS PANCHAYAT SECRETARY, BLOCK GOH, DISTT.- AURANGABAD ----------- For the Petitioner : Mr. Vivek Prasad For the State : Mr. Shashi kant Singh,A.C. to G.A.6 For the Corporation : Mr. J.P.Singh. 2 17.5.2010 Petitioner owned a piece of land. The respondent- Power Grid Corporation of India Limited and its officers suddenly without notice and without permission trespassed upon his land. They marked four places on the land for use to build pillars as foundations to support Extra High Voltage Electric Transmission Towers .Thus if permitted to do so, petitioner would loose substantial land of his. Petitioner protested and finding that no one was taking action nor any person was ready to hear him, approached this Court. 2 Learned counsel for the petitioner submits that in view of the provisions of the Works of Licensees Rules, 2006, as framed and issued under the Electricity Act, 2003 by the Central Government, and in particular proviso to sub-rule 1 of Rule 3 thereof, no permission having been taken, the work cannot be permitted to be carried out. No steps at all having been taken to work out compensation, if any, the authority of Power Grid must be injuncted from proceeding any future. On behalf of Power Grid Corporation Limited , it is submitted that Power Grid Corporation has unrestricted and untrammeled right to enter any land and without permission of any authority or the landlord construct there upon electric transmission towers irrespective of damage that would be caused to the private property which is not their concern as they are doing it in larger public interest. A counter affidavit having been filed and having heard the parties at length, this writ petition is being disposed of with consent of parties at this stage itself. The first mis-conception this Court would like to remove is that after the people of India adopted Constitution of India , all actions of all State authorities in India are controlled by or regulated by statue having force of law and in absence thereof no authority can claim to have any inherent power de horse of law to take any action much less to deprive a person of his right to enjoy his private property even though right to 3 property has ceased to be a fundamental right under Article 19(1)(f) of the Constitution. It is still is a constitutional right under Article 300A of the Constitution. So long Article 300A of the Constitution is there, no authority has unrestricted and untrammeled right to enter upon some one’s land and cause damage to it. The authority must refer to their power to do so to a statutory enactment in that regards having force of law. however, benevolent the action may be; it matters little, if it has no statutory backing or legal sanction. Now we must examine the authority, the legal authority to deprive a person of his property in this nature of transaction. On behalf of Power Grid Corporation, it is submitted that it is a licensee in terms of Section 164 of the Indian Electricity Act, 2003, which is quoted hereunder. It has been conferred powers of the Telegraph Authority by the Central Government by notification dated 24.2.2003: “Section 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 4 and restrictions, if any, as the Appropriate Government may think fit to impose and to the provisions of the India 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 .” (emphasis supplied) At this stage I may point out one thing that merely because Power Grid Corporation was a licensee , it would not acquire any such unrestricted right to enter upon any private property or right of encroachment on any private property in terms of Section 164 of the Electricity Act without an order issued by the Central Government in that regard. Appropriate Government as used in the said section would be the Central Government so far as Power Grid Corporation is concerned, because its business is of inter state transmission of electricity. Now we must look to the order of the Central Government in this regard. Under the Indian Telegraph Act, 1885, there are important restriction imposed. Reference may be made to Section 10(d),Sections 16 and 17 of the Telegraph Act. The notification no. S.O. 1463(E), dated 24.12.2003 (Annexure A to the counter affidavit of Power Grid Corporation) of the Central Government issued with reference to Section 164 of the Electricity Act contemplates both restrictions. The above authorization is subject to compliance by the Power Grid 5 Corporation to the requirements of the provisions of the Electricity Act, 2003 while conferring on it the powers under the Telegraph Act. The relevant part of the said notification of authorization reads as follows: “ The above authorization is subject to compliance by the Powergrid to the requirements of the provisions of the Electricity Act, 2003 and the rules made thereunder.” The position that emerges is though by a notification under Section 164 of the Electricity Act, Power Grid Corporation is conferred with the authority of Telegraph Authority under Indian Telegraphs Act still it is made subject to compliance of Indian Electricity Act, 2003 and to the rules made thereunder. Therefore, obviously authority of Power Grid under this notification is subordinate to and has to be in compliance of the rules made under the Electricity Act . The relevant rules in this regard is the Works of Licensee Rules, 2006. These are the rules made by the Central Government with reference to power conferred under sub-section (2 )of Section 176 read with sub-section (2) of Section 167 of the Electricity Act, 2003. If we refer to rule 3 of these rules, it would be seen that it authorizes any licensee to take certain actions. For appreciation Rule 3 is quoted hereunder: “ 3. Licensee to carry out works.- (1) A licensee may- (a) carry out works, lay down or place any electric 6 supply line or other works in, through, or against, any building, or on, over or under any land whereon, whereover or whereunder any electric supply-line or works has not already been lawfully laid down or placed by such licensee, with the prior consent of the owner or occupier of any building or land; (b) fix any support of overhead line or any stay or strut required for the purpose of securing in position any support of any overhead line on any building or land or having been so fixed, may alter such support: Provided that in case where the owner or occupier of the building or land raises objections in respect of works to be carried out under this rule, the licensee shall obtain permission in writing from the District Magistrate or the Commissioner of Police or any other officer authorized by the State Government in this behalf, for carrying out the works: Provided further that if at any time, the owner or occupier of any building or land on which any works have been carried out or any support of an overhead line, stay or strut has been fixed shows sufficient cause, the District Magistrate or the Commissioner of Police, or the officer authorized may by order in writing direct for any such works, support, stay or strut to be removed or altered. (2) When making an order under sub-rule(1), the District Magistrate or the Commissioner of Police or the officer so authorized ,as the case may be , shall fix, after considering the 7 representations of the concerned persons, if any, the amount of compensation or of annual rent, or of both, which should in his opinion be paid by the licensee to the owner or occupier . (3) Every order made by a District Magistrate or a Commissioner of Police or an authorized officer under sub-rule (1) shall be subject to revision by the Appropriate Commission. (4) Nothing contained in this rule shall effect the powers conferred upon any licensee under Section 164 of the Act.” (emphasis supplied) Now if we read Rule 3(4) in its correct perspective we would find that this rule has been framed by the Central Government which itself authorizes the Power Grid Corporation in terms of Section 164 of the Act. The Central Government was fully aware of the provisions of the Indian Telegraphs Act and the authorization contained therein but having conferred the power of Telegraph Authority by notification, on the Power Grid Corporation by the said notification itself it made the authorization subordinate to the rules under the Indian Electricity Act , thus, subordinate to the Works of Licensee, 2006. If that be so, which it is, then by virtue of rule 3 and various sub rules thereof notwithstanding power of the telegraph authority in view of the notification issued by the Central Government in terms of Section 164 of the Indian Electricity Act still Power Grid Corporation cannot trespass upon any private property as these Rules clearly contemplates 8 the rights of a person to object and duty of the Power Grid Corporation to take prior consent of the owner. A reference to the said rule would further shows that where the owner objects then Power Grid Corporation notwithstanding Indian Telegraph Act would have to go to District Magistrate for seeking permission and while granting permission, the District Magistrate would first fix amount of compensation to be awarded and then grant permission .Even when permission is granted by virtue of second proviso to sub- rule 1 of rule 3, the District Magistrate can withdraw the permission and direct construction on private land be removed. Any order made by the District Magistrate is open to revision by the Appropriate Commission, which in this case would be the Central Regulatory Commission. I may now refer to sub-rule (4) of rule 3, which is quoted hereunder for consideration: “(4) Notwithstanding contained in this rule shall effect the powers conferred upon any licensee under Section 164 of the Act.” A plain reading of sub-rule 4 of rule 3 would show that it does not say that moment Power Grid Corporation is a licensee ipso facto it gets the power of telegraph authority and that being so, by virtue of Section 164 of the Electricity Act, it is competent to ignore these rules, as a whole. Accepting such a submission would lead to absurdity . It would make the entire 9 Rule 3 nugatory which is not to be attributed to the legislature. A closer reading of sub rule 4 of Rule 3 would show its true nature that nothing contained in this rule shall effect the powers conferred upon any licensee under Section 164 of the Act. Therefore, it pre supposes that power can be conferred on a licensee under Section 164 of the Electricity Act and if we refer to Section 164 of the Act it says that Appropriate Government by order may authorize a licensee to do certain acts subject to such restrictions and conditions as contained in the order . We have seen the notification issued by the Central Government in terms of Section 164 of the Act, which authorizes the Power Grid Corporation as a licensee to exercise power of telegraph authority but in the same very said notification it puts a restriction that power would be subject to any rules made under the Electricity Act and that rule would be the Works of Licensee Rules, 2006. Thus, the Central Government itself envisaged that the restriction put in any rule made under the Act upon licensee would operate notwithstanding the power of telegraph authority . If that be so, the plain and simple answer to the submission of the learned counsel for the Power Grid Corporation is that there is no unrestricted and untrammeled power upon the Power Grid Corporation to enter any premises and construct whatever they like. Those powers are controlled by sub rules 1,2 and 3 of Rule 3 of the Works of licensee Rules, 2006 and unless it is shown 10 that those rules have been complied with they have no authority to trespass upon the private land. In fairness to learned counsel for Power Grid Corporation he has referred to a judgment of this Court in the case of Arvind Singh @ Arvind Kumar –Vrs.- Power Grid Corporation of India Limited being MA No. 72 of 2009, which was disposed of on 22.12.2009, for submitting that similar question having arisen whether Power Grid Corporation should be injuncted from entering upon the private land this Court refused to grant injunction holding that Power Grid Corporation had all authority conferred upon by telegraph authority under Indian Telegraphs Act which gave them unrestricted power to enter . In my view, in absence of Works of Licensee Rules, 2006, and in absence of the restrictions put for compliance of rules under the Electricity Act by the Central Government in its notification referred to above what has been held by this Court would be correct. Unfortunately, the provisions of this rule nor the notification were brought to the notice of the Court inasmuch as the judgment is based upon the provisions of the Indian Telegraphs Act alone and the judgment itself notes as follows: “ In view of the aforesaid situation, this Court is of the view that learned counsel for the appellant has been unable to show any provision of law under which this Court ought to injunct the Corporation from carrying out its statutory duties 11 under the Electricity Act read with the powers conferred upon it under the Indian Telegraph Act.” Next reference has been placed upon the judgment of Jharkhand High Court delivered by a Single Judge against which LPA No. 202 of 2007 was dismissed on 18.7.2007 being the case of Ajay Munjal Memorial Trust & ors-v- Power Grid Corporation of India Limited & ors. With due respect their lordships have not considered the effect of the notification and the restrictions therein . It is an authorization issued by the Central Government under Section 164 of the Electricity Act. The restriction imposed by the Central Government in that notification itself has not at all been noticed much less referred to. Thus these judgments, which have not noticed the Rules and the restrictions as imposed in the notification cannot be taken as a binding and/or persuasive precedents. Before closing I may notice one aspect that project is of national importance and benefits of general public. All I can say is the Central Government, which framed the rules, which confers the power on the Power Grid Corporation , is more aware of national importance, public interest and public benefits but notwithstanding that it framed the rules restricting the rights . Once statutory rules are framed restricting the rights then we have to give due consideration to the statutory rules. It has been held by the Apex Court long back in AIR 1974 SC 12 1868 in the case of Shri Mandir Sita Ramji –v- Governor of Delhi- “When a procedure is prescribed by the legislature, it is not for the Court to substitute a different one according to its notion of justice. When the legislature has spoken , the judges cannot afford to be wiser.” The legislature having provided restriction under the rules and the Central Government having provided that the authorization to the Power Grid Corporation was subject to these restrictions then Power Grid Corporation is bound by the said law and intrusion on any private property would be in breach of Article 300A of the Constitution and the Power Grid Corporation can and/or ought to be injuncted, as is being done in the present case. Here I may also point out that there is a lot of difference between putting up of a mere telegraph line and an extra high tension electric transmission line especially in respect of the rights of land owners. Power Grid Corporation is restrained from entering upon private property without full due compliance of sub-rules 1,2 and 3 of rule 3 of The Works of Licensee Rules, 2006, which is mandatory in nature. With the aforesaid observations and direction the writ petition is allowed. singh ( Navaniti Prasad Singh, J.) 13