THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR WRIT APPEAL No.237 of 2010 Dated:16.07.2010 Between: M.Srinivasulu Reddy. ...Appellant And The A.P.Transco, Rep.by its Chief Engineer, T & SS Zone, Gunadala, Vijayawada, Krishna District, And others. ...Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR WRIT APPEAL No.237 of 2010 JUDGMENT: (per Hon’ble Sri Justice V.V.S.Rao) The appellant is a resident of Edulavaripalem Village, Muthkuru Mandal in Nellore District. There is no dispute that he is the owner of land admeasuring Acs.7.43 cents comprised in survey numbers 281/A, 286/A, 281-2B, 286/B, 348/A, 349-2B, 349-2C, 284 and 285-B situated at Muthkur Mandal in Nellore District. He filed the writ petition, being W.P.No.15482 of 2009, seeking invalidation of the action of the respondents, namely, the A.P.Transco and its two Officials, in erecting 220 KV electrical transmission lines allegedly across his land. The Court initially granted interim order. An application was moved by the respondents for vacating the same. The writ petition itself was heard and by the impugned judgment dated 19.02.2010 learned single Judge disposed of the writ petition itself placing reliance on recent judgment of this Court in G.V.S.Rama Krishna v A.P.Transco, Hyderabad[1]. Counsel for the appellant submits that the learned single Judge was in error in not appreciating the contentions which are as follows. Mere issue of notification by the Government conferring powers on the first respondent does not enable the erection of transmission lines, that when the owner of the land objects, they have to obtain necessary permission from the Court of Junior Civil Judge and that laying transmission lines across the land of the appellant would deprive him to cultivate the land. Per contra, Standing Counsel for A.P.Transco refers to Section 164 of the Electricity Act, 2003, the notification issued by the Government of Andhra Pradesh vide G.O.Ms.No.115, dated 07.10.2003 and the decisions of this Court to sustain the impugned order. The question for consideration is whether A.P.Transco can lay transmission lines on the private land without resorting to acquiring the same under the Land Acquisition Act, 1894. The Electricity Act is a code in itself in furtherance of reforms introduced in power sector. The Electricity Act came to be enacted covering all aspects of generation of power, transmission of power, distribution of power and resolution of disputes arising in these areas. Section 164[2] of the Electricity Act empowers the transmission company to exercise all powers under Section 10[3] of the Indian Telegraph Act, 1885 (Telegraph Act), for the purpose of placing electrical lines for transmission of electricity (Section 164 of the Electricity Act, and Section 10 of the Telegraph Act are extracted in the footnote). The Government of Andhra Pradesh, there is no dispute, issued a notification vide G.O.Ms.No.115, dated 07.10.2003, conferring powers on the A.P.Transco to exercise powers under the Telegraph Act and place electrical lines and electrical plant for transmission of electricity in private land. Therefore, we do not find any invalidity in the action of the A.P.Transco in laying/erecting the transmission lines on the land of the appellant. Here we may refer to Sections 28 and 42 of the Electricity (Supply) Act, 1948 (Supply Act), which deal with the same situation as in Section 164 of the Electricity Act. Section 28 of the Supply Act speaks of a scheme for efficient performance of generating company, and Section 42 of the Supply Act empowers such generating company to place wires, poles and apparatus for the transmission of electricity or for transmission of telegraphic or telephonic communications. In B.Krishna Mandadi v Power Grid Corporation of India Limited[4] (delivered by one of us [VVSRJ]), it was complained that power grid corporation started constructing transmission towers in the private land without due process of law. The plea was rejected by this Court placing reliance on the provisions of the Electricity Act, 1910, and the Supply Act. Relevant observations are extracted herein. Section 42 of the Electricity Act enables the generating company to enter upon the land after publication of the scheme under Section 28 for the purpose of placing any wires, poles, wall-brackets, stays apparatus and appliances for the transmission and distribution of electricity, in so doing, a generating company shall have all the powers which the telegraph authority possesses under Telegraph Act with regard to the telegraph established and maintained by the Government. Sub-section (2) of Section 42 of the Electricity Act needs to be extracted in this context. 42(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. Under Section 10 of the Telegraph Act, the telegraph authority may place and maintain a telegraph line under, over, along or across any immovable property. A telegraph authority shall do as little damage as possible and further that it shall pay full compensation to all persons interested for any damage sustained by them by reason of exercise of power under Section 10 of the Telegraph Act. The conspectus of reading provisions referred to hereinabove would be this. A generating company engaged in generation, transmission and supply of electricity is empowered under the provisions of Electricity Act 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 Act, a generating company has to pay compensation for the damage sustained by the owners of the land or owners of the crops. In G.V.S.Rama Krishna (supra) another learned single Judge considered a similar situation in the background of Electricity Act, Supply Act and Telegraph Act. Making reference to relevant case law it was held. 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. … Thus it is clear that the powers under Section 10 of the Indian Telegraph Act, 1885 can be exercised without acquiring the land in question, however, the only right that can be exercised is the right of user in the property and for the purposes mentioned in that Section. Counsel for the appellant placed strong reliance on the decision of the Supreme Court in Kerala State Electricity Board v Livisha[5]. After perusing the judgment, we are afraid, the same is of no assistance to the appellant. It was a case wherein action was initiated before the District Court claiming compensation for the trees that were cut for drawing electric line. The learned District Judge determined the compensation holding that annuity can be calculated on the basis of 5% return. The High Court in revision enhanced the compensation fixing the rate of diminution at 50%. The Supreme Court, however, reversed the High Court and remitted the matter for fresh consideration holding as follows. The situs of the land, the distance between the high voltage electricity line laid thereover, the extent of the line thereon as also the fact as to whether the high voltage line passes over a small track of land or through the middle of the land and other similar relevant factors in our opinion would be determinative. The value of the land would also be a relevant factor. The owner of the land furthermore, in a given situation may lose his substantive right to use the property for the purpose for which the same was meant to be used. The Counsel also strongly relies on the Full Bench decision of the Kerala High Court in Mammoo v State of Kerala[6] wherein it was held that the function of District Magistrate under Section 16(1) of the Telegraph Act is not of a criminal character and that the District Magistrate is only granting permission to the authority to proceed with its work for laying 110 KV double circuit transmission line to a private company. From this it cannot be drawn that in every case whenever the landowner objects for laying power lines the transmission company has to approach the District Magistrate for such transmission. The language in Section 164 of the Electricity Act read with Section 10 of the Telegraph Act is plain enough to reject any such submission. Learned Single Judge has rightly come to the conclusion that if there is any crop damage while the first respondent lays transmission lines, the appellant would be entitled to claim compensation by invoking appropriate remedy. The impugned judgment is unexceptionable. The Writ Appeal fails and is accordingly dismissed. _______________ (V.V.S.RAO, J) _____________________________ (VILAS V.AFZULPURKAR, J) 16.07.2010 vs [1] AIR 2009 (AP) 158 = 2009 (3) ALD 343 [2] 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. [3] 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 damage sustained by them by reason of the exercise of those powers. [4] 2003 (5) ALD 194 [5] (2007) 6 SCC 792 [6] AIR 1980 Kerala 18