1 HIGH COURT OF MADHYA PRADESH BENCH AT INDORE (DB: HON. MR. JUSTICE SHANTANU KEMKAR & HON. MR. JUSTICE PRAKASH SHRIVASTAVA) Writ Appeal No.299/2010 Vijay Agrawal S/o Ramchandra Agrawal, Aged - 44 years, Occ. - Business, R/o - 18 Meera path, Indore. .... Appellant Vs. 1/ Power Grid Corporation of India Ltd. Plot No. 66, Type - C, Sector - B, Slice No.6, Scheme No.78 (Aranya), A.B. Road, Indore-452010 through its Manager. 2/ District Magistrate & Prescribed Authority under the provisions of The Works of Licensees Rules, 2006, Office of District Magistrate, Moti Tabela, Indore .... Respondents ------------------------------------------------------------------------------- Writ Appeal No.298/2010 Smart Dwelling Developers Private Limited a company duly incorporated under the provisions of the Companies Act, 1956 having its registered office at 154, R.N.T. Marg, Indore through its Director Shri Shyam Kumar Garg S/o Kalyanmal Garg, Aged - 54 years, Occ. - Business, R/o - 40-41, Sampat Farms, Bhicholi Mardana, Indore .... Appellant Vs. 1/ Power Grid Corporation of India Ltd. Plot No. 66, Type - C, Sector - B, Slice No.6, Scheme No.78 (Aranya), A.B. Road, Indore-452010 through its Manager. 2 2/ District Magistrate & Prescribed Authority under the provisions of The Works of Licensees Rules, 2006, Office of District Magistrate, Moti Tabela, Indore .... Respondents ------------------------------------------------------------------------------- Shri Shekhar Bhargava, learned senior Advocate with Shri Romesh Dave Adv., for the appellants. Shir Shailendra Mukati, learned counsel for respondent no.1. Shri M.S. Dwivedi, learned P.L. for respondent no.2. ------------------------------------------------------------------------------- Whether approved for reporting:- JUDGMENT (Delivered on 19.9.2011) Per Prakash Shrivastava, J :- 1/ These writ appeals under Section 2 of the Madhya Pradesh Uchchya Nyayalaya (Nyaya Khandpeeth Ko Appeal) Adhiniyam 2005 have been filed against the common order dated 22.7.2010 passed in W.P. No.6412/2010 (leading to W.A. No.299/2010) and W.P. No.7452/2010 (leading to W.A. No.298/2010). 2/ The appellants had approached this Court by way of their respective writ petitions aggrieved with the action of the respondents in erecting tower on their land and laying the transmission line across their land. The case of the appellants as set up in the writ petitions is that they are the owners of the land in question. They came to know that the respondents had proposed to erect a tower on their land and to lay transmission line across their land, therefore, they had filed objection before the respondent no.1 for shifting the proposed tower 3 and line. The respondent no.1, without considering the said objections, issued the notices dated 15.3.2000 informing that 400 K.V. transmission line will be constructed across their land causing minimum possible damage and for the damage caused to the crop, compensation as determined will be paid. The respondent no.1 thereafter gave the caveat notice dated 23.3.2010 to the appellants. Further case of the appellants is that when the respondent no.1 forcibly tried to start the construction on the petitioner's land, they had made a police report, on which no action was taken. Before the learned Single Judge the appellants challenged the impugned action mainly and substantially on the ground that without the consent of the appellants the respondents can not lay transmission line/tower on their land. 3/ The writ petition was opposed by the respondents taking the stand that the respondent no.1 is a licensee engaged in the business of inter State transmission of electricity under the Electricity Act, 2003 (for short “Act of 2003”) and that under Section 164 of the Electricity Act, 2003, the respondent no.1 has been conferred with the powers of telegraph authority possessed under the Indian Telegraph Act, 1885 (for short “Act of 1885), and in view thereof no prior consent, notice or opportunity of hearing was required to be given. The appellants are only entitled for damages caused during laying of transmission line. They have further taken the stand that the route for laying the transmission line was fixed after following the elaborate procedure and keeping in view the relevant guidelines and the most convenient route 4 was approved. Even after laying the transmission line, all crops can be cultivated and the trees of short height can be grown and building can be put up by maintaining sufficient safety electric clearance as per the Electricity Rules, 1956. They have also stated that Government of India, Ministry of Power had granted prior approval under Section 68 of the Act in respect of the proposed transmission scheme, which has been framed by Government of India to provide quality power with greater reliability particularly to the agriculture, residential and commercial establishment adjoining the city of Indore and to meet the demand of public at large and give a boost to the industrial and agricultural growth. The scheme was a time bound programme, for which 60% work was already over and that no alternate government land was available which as per norms could be used for laying of transmission line. 4/ The learned Single Judge after examining the various provisions of the Act and the Rules has reached to the conclusion that no consent of the appellants was required for laying transmission lines and erecting towers. The learned Single Judge has also found that the cost of the project is 7,031.88 crores and the transmission lines are laid down by the respondents in larger public interest, therefore, right of an individual has to give way to the right of public at large. Learned single Judge has accordingly dismissed the writ petition. 5/ Learned counsel appearing for the appellant submits that Section 164 of the Electricity Act, 2003 has no overriding effect and 5 under Rule 3 of the Work of Licensee Rules 2006 (for short “Rules of 2006), the consent of the appellant was necessary. He submitted that since there is conflict between Section 164 of the Electricity Act, 2003 read with Section 10 of the Indian Telegraph Act, 1985 and Rule 3 of the Rules of 2006, therefore, the two provisions are to be harmoniously construed, and that the applicability of Rule 3 in such a case has not been totally excluded, therefore, without the appellant's consent the transmission line can not be laid on their land. He further submitted that the prior approval under Section 68 of the Act was not taken and that since the appellants had resisted, therefore, it was necessary to take recourse to Section 16 of the Telegraph Act. 6/ Learned counsel appearing for the respondent no.1 submitted that under the scheme of the Act, no consent of the appellant is required once the action is taken under Section 10 of the Indian Telegraph Act. He further submitted that there is no conflict in the provisions of the Act and the Rules and that the prior approval under Section 68 was taken. He further submitted that the appellant can not be permitted to argue the question of applicability of section 16 of the Telegraph Act for the first time in writ appeal and that no resistance was suffered by the appellant and the transmission line has already been laid. 7/ We have heard the learned counsel for the parties at length and have minutely perused the record of the case. 8/ It is undisputed that the respondent no.1 is a licensee 6 engaged in the business of inter State transmission of electricity under the Electricity Act 2003. Section 164 provides for the exercise of powers of telegraph authority by the licensee in certain cases and reads as under :- “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 the 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.” 9/ For attracting section 164, the order of the appropriate Government in writing for the purpose mentioned therein is necessary. The appropriate Government has been defined in section 2(5) of the Act of 2003 and it is not in dispute that in the present case Central Government is the appropriate Government. 10/ The Central Government exercising the powers conferred by section 164 of the Act of 2003 had issued the notification dated 24.12.2003 (Annexure R/2)(B) authorizing the respondent no.1 to exercise all powers vested in the telegraph authority under part III of the Indian Telegraph Act 1885 in respect of the electrical lines and electrical plant established or maintained or to be established or 7 maintained for the transmission of electricity or for the purpose of telephonic or telegraphic communication necessary for the proper coordination of the work. Thus there exists a valid notification under Section 164 of the Electricity Act, 2003 issued by the appropriate Government in favour of the respondent no.1 authorizing respondent no.1 to exercise all powers vested in the telegraph authority under part III of the Telegraph Act, 1885. Part III of the Act of 1885 relates to the power to place telegraph lines and posts and consists of Section 10 to Section 19-B of the Act. Section 10 of the Act of 1885 deals with the power to telegraph authority to place and maintain telegraph lines and posts and reads as under :- “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 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 8 damage sustained by them or reasons of the exercise of those powers.” 11/ A bare perusal of Section 164 of the Act of 2003 read with Section 10 of the Act of 1885 indicates that for taking action under these sections, no consent of property owner is required. 12/ The appellants have placed reliance upon Rule 3 of the Rules of 2006 in support of their submission that the consent of the appellant was required for laying the electric line across his land. Rule 3 reads as under :- “3. Licensee to carry out works.-(1) A licensee may- (a) carry out works, lay down or place any electric 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 an 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 office authorised 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 authorised may by order in writing direct for any such works, support, stay or strut to be removed or altered. 9 (2) When making an order under sub-rule (1), the District Magistrate or the Commissioner of Police or the officer so authorised, as the case may be, shall fix, after considering the 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 Commissioner of Police of an authorised 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.” 13/ Under Rule 3(1)(a) prior consent of owner or occupier of any building or land is required by the licensee to lay down electric supply line. Learned counsel appearing for the appellants has, therefore, submitted that since there is conflict between Section 164 of the Act of 2003 read with Section 10 of the Act of 1885 and Rule 3 of the Rules of 2006, hence the two provisions are to be read harmoniously and in that process the provision relating to the consent contained in Rule 3 can not be excluded while exercising the power under Section 164 of the Act of 2003 read with Section 10 of the Act of 1885. 14/ Such a submission raised by the counsel for the appellant can not be accepted since there is no conflict between Section 164 of the Act of 2003 with Rule 3 of the Rules of 2006. Sub-rule 4 of Rule 3 specifically exclude the application of Sub-Rule (1) to (3) of Rule 3 when the powers of telegraph authority under the Telegraph Act, 1885 are conferred upon any licensee under Section 164 of the Act of 2003. 10 In view of the specific provision contained in Sub-rule 4 of Rule 3, the provision contained in sub-rule (1) of Rule 3 will not come into operation when the power under Section 164 of the Act of 2003 is exercised. Thus the issue of harmonious construction in the present case does not arise in the absence of any conflict in the provisions and the judgment in the matter of Sri Venkataramana Devaru and others Vs. State of Mysore and others reported in AIR 1958 SC 255 and in the matter of Krishan Kumar Vs. State of Rajasthan and others reported in AIR 1992 SC 1789 relating to harmonious construction relied upon by the counsel for the petitioner do not help him. 15/ A further argument has been advanced by the counsel for the appellant that the notification dated 24.12.2003 authorises the respondent no.1 to exercise powers of the telegraph authority under part III of the Act of 1885 subject to compliance of requirements of Electricity Act, 2003 and Rules made thereunder, therefore, the applicability of Rule 3 can not be excluded. Such an argument is misconceived because we can not ignore that sub-rule 4 is also a part of Rule 3 and while applying the said Rule, the entire Rule 3 is to be seen. It is the scheme of the Act of 2003 that a licensee may, by exercising the power under Section 67 of the Act, lay down or place electric supply lines and while acting under Section 67, the licensee is required to comply with the Rules of 2006 which have been framed in exercise of powers conferred by Section 176(2)(e) read with Section Section 67(2) of the Electricity Act 2003. As against this where the licensee is 11 conferred power of the telegraph authority by the order in writing of the Appropriate Government under Section 164 of the Act, then in such a case the action is to be taken in accordance with part III of the Telegraph Act 1885. In the present case, action of the respondents is not under section 67 of the Act but under Section 164 of the Act read with Section 10 of the Telegraph Act. 16/ The Andhra Pradesh High Court in the matter of G.V.S. Rama Krishna s/o Nageswara Rao & Ors. Vs. A.P. Transco rep. by its Managing Direct, Vidyuth Soudha & Ors. reported in AIR 2009 Andhra Pradesh 158, Gujarat High Court in the matter of Jayantkumar Bhagubhai Patel and Anr. Vs. State of Gujarat and Anr. reported in AIR 2007 GUJARAT 32 and Jharkhand High Court in the matter of Ajay Munjal Memorial Trust & Ors. Vs. Power Grid Corporation of India Ltd. & Ors. reported in AIR 2008 JHARKHAND 34 have examined the scheme of Section 164 of the Act of 2003 and have found that neither the acquisition of land is necessary nor consent of the owner is required to be taken. The Andhra Pradesh High Court in the matter of G.V.S. Rama Krishna (supra) has taken the view that Section 164 of the Electricity Act, 2003 read with Section 10 of the Telegraph Act, 1885 recognises absolute power of the licensee to proceed with placing of electric supply lines or electric polls 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 12 electricity supply lines. In such as case neither the acquisition of land is necessary nor there is any need for consent of owner or occupier. The Jharkhand High Court in the matter of Ajay Munjal Memorial Trust (supra) has taken the view that for early completion of the important project, power has been reserved to the Appropriate Government, to issue notification vesting powers of telegraph authority with licensee, where consent is not required under Section 10 of the Telegraph Act and that Section 164 read with sub-rule 4 of Rule 3 of Rules of 2006 has overriding effect over Rule 3(1) to (3). 17/ In view of the aforesaid analysis the argument of learned counsel for the appellants that prior consent of the appellants was necessary under Rule 3(1), is found to be devoid of any merit and is accordingly rejected. 18/ The next contention of the counsel for the appellant is that the respondents have not taken recourse to Section 16 of the Act of 1885 and have not approached District Magistrate, though the appellant had resisted the action of the respondents. On the perusal of the order of the learned Single Judge, it is noticed that no such ground was argued by the appellant before the learned Single Judge. The petitioner had neither raised any such issue in the writ petition in respect of non- compliance of the provisions contained in Section 16 of the Act of 1885 nor in the relief clause of the writ petition any relief in respect of violation of Section 16 of the Act was claimed. The specific case of the respondents is that no resistance was offered by the appellant, 13 therefore, there was no need to approach the District Magistrate under Section 16 of the Act. The District Magistrate has filed the affidavit before this Court stating that no case or proceeding initiated by the petitioner is pending with the District Magistrate in respect of Section 16/17 of the Act of 1885. Such a submission can not be accepted also for the reason that learned counsel for the respondents have submitted before this Court that the work has already been completed and learned counsel for the appellant has failed to point out the consequence of not following the procedure prescribed in section 16 of the Act. It is also worth noting that the respondents have assessed the damages caused due to the work done and in the affidavit dated 11.5.2011 they have stated about sending the Cheque of damages by registered post to the appellant. Thus at this stage, the ground raised by the appellant in this regard does not survive. 19/ Accordingly we do not find any error in the order of the learned Single Judge. Hence the writ appeals are dismissed. 20/ Original order be kept in W.A. No.299/2010, a copy whereof be placed in the record of W.A. No.298/2010. (SHANTANU KEMKAR) (PRAKASH SHRIVASTAVA) J u d g e J u d g e Trilok/-