IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.04.2010 CORAM: THE HON'BLE MRS.JUSTICE R.BANUMATHI AND THE HON'BLE MR.JUSTICE M.VENUGOPAL W.A.Nos.2271 of 2002 and 37 of 2004 and W.A.M.P.No.38 of 2004 W.A.No.2271 of 2002: The Executive Engineer, Civil Transmission Line Construction General Construction Circle Tamil Nadu Electricity Board 182, Dr.Subbarayan Street Tatabad, Coimbatore – 12. ....Appellant/2nd Respondent Vs. 1.Avanashi Gounder 2.The District Collector Erode District Erode. ....1st and 2nd Respondents/ Petitioner/1st Respondent W.A.No.37 of 2004: The District Collector Erode District Erode. .... Appellant Vs. 1.Avanashi Gounder 2.The Executive Engineer Civil Transmission Line Construction General Construction Circle Tamil Nadu Electricity Board 108, Dr.Subbarayan Street Tatabad, Coimbatore. .... Respondents. Prayer: Writ Appeals in W.A.Nos.2271 of 2002 and 37 of 2004 are filed under Clause 15 of the Letters Patent against the order of this Court dated 11.3.2002 passed by the single Judge in W.P.No.20929 of 2000 and WMP No.30438/2000 and W.P.No.20929/2000 respectively. To issue a writ of Certiorarified mandamus calling for the impugned proceedings of the 1st Respondent dated 28.11.2000 made in Ref: https://hcservices.ecourts.gov.in/hcservices/ No.64859/2000/K-4, quash the same and consequently forbear the Respondents from in any manner interfering with petitioners peaceful possession and enjoyment of his Lands in S.F.No.893/2 of Kanjikovil Village, Erode District. For Appellant : Mr.J.Ravindran for TNEB in W.A.No.2271 of 2002 and for Respondent No.2 in W.A.No.37 of 2002 For Respondent No.1 : Mr.N.Manokaran in both W.A.s For Respondent No.2 : Mr.A.Arumugham in W.A.No.2271 of 2002 Spl.G.P.(Writs) and for Appellant in W.A.No.37 of 2004 COMMON JUDGMENT R.BANUMATHI,J. These Writ Appeals arise out of the order dated 11.3.2002 made in W.P.No.20929 of 2000 quashing the proceedings of the District Collector, Erode dated 28.11.2000 made in Ref.No.64859/2000/K-4, whereby the District Collector, Erode, permitting Tamil Nadu Electricity Board (in short, "TNEB") for stringing lines at location 18 and 19 in R.S.No.893/2 of Suriampalaym Kanjikoil village. Learned single Judge also directed removal of all poles erected in S.F.No.893/2 of Kanjikoil village, Erode District. For the sake of convenience, the parties are referred to as per their array in Appeal preferred by the TNEB. 2. The brief facts are that the TNEB established a 110 K.V. Sub Station at Gandhinagar near Suriampalayam village in Perundurai Taluk, Erode District. For the said Sub Station, a 110 K.V. D.C. line is stapped off from existing Gobi- Erode 110 K.V. D.C. line located in between 326 to 327 (near Chinniyampalayam) is to be laid to connect the Sub Station to the existing E.H.T. line. The 1st Respondent, Chinnasamy and Sigamani, who are the land owners of Survey No.893/2 raised objection for erection of towers in between the span 18 and 19 in their lands. The Objectors have also filed a Cviil Suit before the District Munsif' Court, Perundurai in O.S.No.28 of 2000 and in I.A.No.124 of 2000 the Civil Court has granted interim stay. Since the land owner obstructed the work, TNEB approached the 2nd Respondent/District Collector seeking permission to TNEB to exercise the powers under Section 10 Part III of P&T Act. Notices were issued to the Objectors and TNEB for enquiry on 7.11.2000. Both the Objectors and TNEB authorities appeared for enquiry and the 2nd respondent/District Collector enquired both the land Owner and TNEB https://hcservices.ecourts.gov.in/hcservices/ officials. 3. On direction of the 2nd Respondent, District Revenue Officer along with the land owner and TNEB officials inspected the field in S.F.No.893/2, Kanjikoil village and District Revenue Officer submitted report to the District Collector. Upon consideration of the objections and also District Revenue Officer's report, the District Collector passed the impugned order dated 28.11.2000 made in Ref.No.64859/2000/K-4 granting permission to the TNEB to exercise the powers under Section 10 Part III of Telegraph Act, 1885 for stringing lines at location 18 and 19 in R.S.No.893/2 of Suriampalaym Kanjikoil village and permitted TNEB to continue the project. 4. Challenging the order of the District Collector, the 1st Respondent/Writ Petitioner filed the Writ Petition contending that there is an alternative and more convenient source available to connect the service line from poles No.17 to 19 and even though the 1st Respondent has explained his grievance, without going into the merits and demerits of the objections raised by the 1st Respondent, the District Collector erroneously rejected the 1stt Respondent's objection. The 1st Respondent/Writ Petitioner further averred that for erecting the poles in his lands, no consent was obtained and the stringing of lines over his lands has caused damage to his lands and caused diminution of the value of the lands and Writ Petitioner prayed for quashing the order of the District Collector dated 28.11.2000 made in Ref.No.64859/2000/K-4. 5. Placing reliance upon a decision of this Court in S.KANNAPPAN (DIED) AND OTHERS VS. THE COMMISSIONER, TIRUVOTTRIYUR MUNICIPALITY, MADRAS AND OTHERS (1999 (III) MLJ 235), the learned Single Judge held that Section 12(2) of the Electricity Act imposes a condition to obtain the consent of the owner of the land before erecting poles and TNEB was not able to prove that they have obtained consent of the land owner, which is in clear violation of the conditions imposed under Section 12(2) of the Act. The learned single Judge further held that without such consent poles cannot be erected in the lands of the Writ Petitioner and on those findings quashed the order of the District Collector and directed removal of the poles. 6. Challenging the order of the learned single Judge, Mr.J.Ravindran, the learned counsel for TNEB submitted that no electricity tower was erected in the 1st Respondent's land and that tower has been erected only in the adjoining lands belonging to the other persons and only the tower lines strung between two towers are crossing the 1st Respondent's land at a sufficiently safe height and it does not in any way cause hindrance or obstruction for the enjoyment of the land by the 1st Respondent. Learned counsel would further submit that the District Collector has conducted an enquiry and only upon consideration of the Inspection Report of the District Revenue Officer, issued the impugned order permitting TNEB to exercise the powers under Section 10 of the Indian Telegraph Act, https://hcservices.ecourts.gov.in/hcservices/ 1885. The main contention of the Appellant TNEB is that in view of orders passed by the District Collector, TNEB is competent to exercise the powers of entry in respect of properties. It was further argued that the Public Officer on whom the powers of Telegraph Authority under Section 10 of the Telegraph Act have been conferred under Section 51 of the Indian Electricity Act and the learned single Judge did not properly analyse the matter in the light of Section 51 of the Indian Electricity Act. 7. Reiterating the submissions of TNEB, Mr.Arumugham, the learned Special Government Pleader submitted that only in the welfare of the public and to continue the ambitious public Welfare Project to meet the long felt needs of the people in and around Suriampalayam, Kanjikoil, Pethampalayam and Perundurai villages, the District Collector has passed the impugned order. It was further submitted that under Section 42 of the Electricity (Supply) Act, 1948, it is the sanctioned scheme and that Section 10 of Telegraph Act empowers Telegraph Authority to place towers and draw lines in any immovable property, which is also applicable to TNEB under Sections 12 and 51 of the Electricity Act. It was further submitted that since the land owners obstructed the work, the District Magistrate exercised the power under Section 16 of Indian Telegraph Act and thereby permitting TNEB to exercise the powers under Section 10 of Indian Telegraph Act for stringing lines at locations 18 and 19 of R.S.No.893/2 and the same is only in public interest. 8. Reiterating the findings of learned single Judge, the learned counsel for the 1st Respondent/Writ Petitioner submitted that TNEB has not obtained consent of the land owner and learned single Judge rightly applied the ratio of the decision in S.KANNAPPAN (DIED) AND OTHERS VS. THE COMMISSIONER, TIRUVOTTRIYUR MUNICIPALITY, MADRAS AND OTHERS (1999 (III) MLJ 235). It was further submitted that a conjoint reading of Section 12 of Indian Electricity Act and Sections 28, 29 and 42 of Electricity (Supply) Act, 1940 Act, only for a sanctioned scheme, the powers under Section 10 of Indian Telegraph Act can be exercised and there is nothing to show that the establishment of Sub Station and laying K.V. D.C line was Sanctioned. The learned counsel would further submit that merely because some Sections empowered TNEB and the District Collector to confer on the licensees some powers which can be exercised by the Telegraph Authorities under the Indian Telegraph Act, it does not mean that all the provisions of Indian Telegraph Act could be incorporated into the Electricity (Supply) Act. The learned counsel would further submit that neither Section 16(1) nor Section 10 of Indian Telegraph Act would have any application to this case and the learned single Judge rightly directed TNEB to remove the high power electricity tower line strung over the lands of the 1st Respondent. 9. Even at the outset, it may be noted that already there was electricity line drawn over the property in Survey No.893/2 of the 1st Respondent. As per proviso to Section 12, sub-section (2) of https://hcservices.ecourts.gov.in/hcservices/ Indian Electricity Act, "any overhead line may be fixed on any building or land or having been so fixed "may be altered" notwithstanding the objection of the owner or occupier of such building or land, if the District Magistrate or, in a Presidency- town, the Commissioner of Police by order in writing so directs." Since there was already an electric line drawn through their lands, as per the proviso to Section 12(2), the drawing of high tension electric line could only be stated to be 'alteration'. 10. Be that as it may, the 1st Respondent challenges the impugned order of the District Collector dated 28.11.2000 made in Ref.No.64859/2000/K-4 mainly on the following grounds: ●1. Consent of the 1st Respondent was not obtained by TNEB ●2. There is an alternative and more convenient source available to connect the Service Line from Pole Nos.17 to 19. ●3. The District Collector did not properly consider the objections of the 1st Respondent and erroneously rejected the objections raised by the Petitioner without going into the merits and demerits of the objections raised by the 1st Respondent. 11. Under Section 12 of the Indian Electricity Act, a licensee cannot without the consent of the owner or occupier concerned, place any electric supply-line or other work in, through or against any building, or on, over or under any land belonging to such owner or occupier concerned, Section 51 of the Indian Electricity Act however begins with the word "Notwithstanding anything contained in Sections 12 to 16". Thus Section 51 is a non obstante clause and it overrides the provisions of Section 12 of the Indian Electricity Act. In other words, Section 12 must yield if there is a conflict between the said provision and Section 51 of the Act. In our considered view, learned single Judge did not examine Section 12 in the light of Section 51 of the Act, which contains a non obstante clause. 12. Section 51 of the Act reads as under: "51. Exercise in certain cases of powers of telegraph authority. - Notwithstanding anything contained in Sections 12 to 16 (both inclusive) and Sections 18 and 19, the Central Government in the case of inter-State transmission system and the State Government in the case of intra-State transmission system, as the case may be, may, by order in writing, for placing of electric supply-lines, appliances and apparatus for the transmission energy or for the purpose of the telephonic or telegraphic communication https://hcservices.ecourts.gov.in/hcservices/ necessary for the proper co-ordination of works, confer upon any public officer, Central Transmission Utility, State Transmission Utility, licensee, Transmission licensee or any other person engaged in the business of transmission or supplying energy to the public under this Act, subject to such conditions and restrictions (if any) as the Central Government or the State Government, as the case may be, may think fit to impose, and to the provisions of the Indian Telegraph Act, 1885 any of the powers which the telegraph authority possess 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." 13. Section 51 enables the State Government: - (a) to confer upon any public officer, licensee, or a non-licensee any of the powers which the telegraphy authority possesses under the Indian Telegraph Act, 1885 (13 of 1885); (b) to confer such powers subject to - (i) such conditions and restrictions as the State Government may think fit to impose; and (ii) the provisions of the Indian Telegraph Act, 1885; (c) to confer such powers for the purpose of - (i) placing of electric supply-lines or works for transmission of energy; (ii) telephone or telegraphic communications necessary for the purpose of co-ordination of works. 14. When the Electricity Board exercises power under Section 51 of the Electricity Act read with Section 10 of the Telegraphs Act, they are not acquiring any land. They are only making use of the land for the purpose of laying electric lines for which full compensation is given for the damage caused. By virtue of notification issued under Section 51 of the Electricity Act read with Section 10 of the Telegraph Act, it is not possible to contend that the Electricity Board has no power to locate towers on the land owned by a person. The only right left to the owner of the land on or over which any line is stretched or laid or any tower is constructed is to obtain compensation. 15. Sections 10 to 19 and Section 34 of Indian Telegraph Act empower the Telegraph Authority to place and maintain Telegraph lines and posts to enter a property for their repair or removal. Section https://hcservices.ecourts.gov.in/hcservices/ 10 of the Indian Telegraph Act 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 damage sustained by them by reason of the exercise of those powers." 16. Sections 16(1) and (2) of Indian Telegraph Act reads as under: "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)." https://hcservices.ecourts.gov.in/hcservices/ 17. Whenever there is any objection in fixing electric poles or drawing electric lines for transmission of energy, the Board should approach the District Magistrate and get an order from the District Magistrate that the authority shall be permitted to exercise the powers under Section 10 of the Act. The power to approach the District Magistrate is not only with regard to the Telegraph Authority but to the Public Officer or any other person authorised under the Electricity Act. Since the objection was raised by the 1st Respondent/land owner and all the objectors have also filed the suit in O.S.No.28 of 2000 on the file of District Munsif's Court, Perundurai and the case was also pending, TNEB approached the District Collector. Before the District Collector, Objectors have stated that if the tower is erected in a straight route, it will result in savings of the expenditure to TNEB. The Electricity Board stated that the route suggested by the 1st Respondent cannot be adopted as it would be detrimental to the interest of habitations nearby and there will be some hindrance to the route of 20th tower line because of the hillock in between. Pursuant to the direction from the 2nd Respondent, District Revenue Officer along with the Objectors and TNEB officials inspected the field and filed the report. By perusal of the impugned order it comes to be known that the report of District Revenue Officer revealed that "in case of acceptance of the new route as stated by the Objectors, no vertical clearance can be secured as per the norms prescribed by TNEB and the minimum height vertically should be 28 feet." District Revenue Officer's report stated that because of the existence of the hillock the vertical clearance could not be obtained and the District Revenue Officer reported that it is not safe to change the alignment since the scheme was almost completed at a cost of Rs.5 Crores. Upon consideration of the objections of the land owners and the report of the District Revenue Officer, the District Collector has passed the order permitting TNEB to exercise the powers under Section 10 Part III of Telegraph Act and to continue the Project. 18. Once the District Collector has passed the order under Section 16(1), sub-section (2) of Section 16 of Telegraph Act provides that if any person resists the exercise of those powers he shall be deemed to have committed an offence under Section 188 of the Indian Penal Code. In exercise of the powers conferred on the District Collector as per section 16(1) of Indian Telegraph Act, when permission was granted to TNEB to exercise powers under Section 10 Part III of Telegraph Act, the learned single Judge was not right in saying that no consent was obtained from the land owners. In our considered view, a conjoint reading of Section 51 of Indian Electricity Act and Sections 10 and 16(1) and (2) of Indian Telegraph Act, the condition imposed under Section 12(2) of the Indian Electricity Act cannot have precedence over the permission granted by the District Collector. The learned single Judge did not keep in view the power of the District Magistrate under Section 16(1) and deeming provision under Section 16(2). As per Section 16(2), any resistance https://hcservices.ecourts.gov.in/hcservices/ to the exercise of power is an offence. An order was passed by the District Magistrate, exercising his power under Section 16(1) permitting TNEB to exercise its powers under Section 10 Part III of Telegraph Act for stringing lines, the deeming provision of Section 16(2) would become meaningless if we are to say that consent of land owner was to be obtained when electricity supply lines are drawn through. Based on the permission granted by the District Collector when Electricity supply lines are drawn through the lands, it might result in destruction or damage to the land resulting in diminution in value of the land over which the lines are drawn. For such diminution in value of the land, the 1st Respondent/land owner can only claim compensation. Having regard to Section 16(1) and (2) of the Indian Telegraph Act, the 1st Respondent cannot raise any objection for laying of the lands. 19. In BHARAT PLYWOOD AND TIMBER PRODUCTS PRIVATE LTD. VS. KERALA STATE ELECTRICITY BOARD, TRIVANDRUM AND OTHERS (AIR 1972 KERALA 47), the Full Bench of Kerala High Court considering the scope of Sections 10 and 16 of the Telegraph Act, 1885, held as under: ".... 23. It is clear from the wording of Section 16 and particularly from the expression "the District Magistrate may, in his discretion", that an order will not be forthcoming automatically. .... The wording of the section is thus itself indicative of the fact that in cases of resistance or obstruction the District Magistrate will have to decide whether the authority should be permitted or not to exercise the powers under Section 16 of the Telegraph Act. This necessarily means that the telegraph authority cannot override or ignore the resistance or obstruction and continue to exercise the powers under Section 10 notwithstanding such resistance or obstruction. It follows that, when an owner or occupier resists or obstructs the exercise of the power under Section 10, the telegraph authority will have to approach the District Magistrate for an order under sub-section (1) of S.16 and can exercise the power under Section 10 only in cases where the District Magistrate deems it fit to pass an order that he shall be permitted to do so. The power conferred by Section 10 is thus a conditional power; conditional on an order being passed under Section 16(1) by the District Magistrate that the authority may be permitted, in case of resistance or obstruction, to exercise the power. This is so not only in regard to telegraph authority but to the public officer or any other person authorised under the Electricity Act. .... If the telegraph authority has the power, notwithstanding the resistance or obstruction, to exercise the powers under Section 10, the resistance or obstruction by the owner or occupier, we conceive, would be an offence https://hcservices.ecourts.gov.in/hcservices/ under Section 186 of the Indian Penal Code. .... Sections 10 and 16 have to be read together and when there is resistance or obstruction, the power under Section 10 can be exercised only when the District Magistrate passes an order under Section 16(1) that he shall be permitted to exercise them. 24. ..... If Section 16(1) is not applicable to a public officer authorised under Section 51 of the electricity Act, one or two results must follow. The Public Officer in cases of resistance or obstruction may not be able to lay the lines; or notwithstanding the resistance or obstruction he may be taken as empowered to lay the lines. We do not think that either of these should be the position, and the interpretation that we should place on the effect of an authorisation under Section 51 of the electricity Act and the provisions in Sections 10 and 16 of the Telegraph Act must serve the object and purpose which they are intended to serve. The public officer on whom powers have been conferred pursuant to Section 51 of the Electricity Act must stand in the same position as regards the exercise of power as the telegraph authority. His power should not be abridged, nor should it be enlarged. We, therefore, think that Section 16 of the Telegraph Act is as much applicable to a public officer on whom powers have been conferred pursuant to Section 51 of the Electricity Act as to a telegraph authority. 26. ... when an authority is resisted in the exercise of power under Section 10 of the Telegraph Act, he has no alternative but to approach the District Magistrate for necessary orders under Section 16(1) of the Telegraph Act..." 20. The learned counsel for 1st Respondent/Writ Petitioner Mr.N.Manoharan laid emphasis upon Sections 28, 29 and 42 of the Electricity (Supply) Act, 1948 (Act No.54 of 1948). The learned counsel submitted that as