LETTERS PATENT APPEAL No.1132 of 2010 Against the order and jdugment dated 17.5.2010 passed by Hon’ble Mr. Justice Navaniti Prasad Singh in CWJC No. 6993 of 2010. 1. THE POWER GRID CORPORATION OF INDIA LIMITED, 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 ....Respondents/Appellants Versus 1. RAM NARESH SINGH, son of late Bhola Nath Singh, resident of Villae Bhurkunda, Post Office Ankuri, Police Station Goh, District Aurangabad (Bihar) 2. Girjesh Kumar Singh, son of late Kedar Nath Singh, resident of village Bhurkunda, Post Office Ankuri, Police Station Goh, District Aurangabad (Bihar) ......Petitioners/ Respondents 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 Bhurkhunda through its Panchayat Secretary, Block Goh, District Aurangabad ....Respondents/Respondents with CWJC No.11393 oF 2010 In the matter of an application under Article 226 of the Constitution of India. SMT.SUSHILA DEVI, W/o Sri Deo Sharan Mishtri, resident of Mohalla – Rikabganj Tikari, PS Tikari, District – Gaya .......... ......... Petitioner Versus 1. THE POWER GRID CORPORATION OF INDIA LIMITED. 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 State of Bihar through Collector, Gaya 6. The District Magistrate Gaya, District Gaya 7. The Superintendent of Police Gaya, District Gaya 8. The Sub Divisional Magistrate (SDO), Tekari, Gaya ********* For the Petitioners :Dr. Kumar Amitesh Chandra For the Respondents : Mr.Anjani Kumar Additional Advocate General no.10 2 P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE SAMARENDRA PRATAP SINGH S K Katriar, J. We shall first take up LPA No. 1132 of 2010, preferred under clause 10 of the Letters Patent of the High Court of Judicature at Patna, wherein grievance has been raised with respect to the judgment dated 17.5.2010, passed by a learned single Judge of this Court in CWJC No. 6993 of 2010 (Ram Naresh Singh & Another vs. Power Grid Corporation), whereby the writ petition has been allowed, and the appellants have been denied permission to install transmission towers on the lands of respondent nos. 1 and 2 herein (the writ petitioners) on the ground of failure on the part of the appellants to follow the prescribed procedure. The writ petition has been disposed of with the direction that “...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.” Hence this appeal at the instance of the appellants. We shall go by the description of the parties occurring in the present proceeding. 2. A brief statement of facts essential for the disposal of the appeal may be indicated. Respondent nos. 1 and 2 are owners of separate plots of land, and are independent of each other. They had joined the writ petition in their independent capacity making a common cause. The appellants are engaged in the statutory duty and function of transmission and distribution of electricity throughout the country. In exercise of powers conferred by the Electricity Act 2003 (hereinafter referred to as `2003 Act’), the Works of Licensee Rules 2006 (hereinafter referred as`the Rules’) framed thereunder, and the Indian Telegraph Act 1885 (hereinafter 3 referred to as `1885 Act’), the appellants attempted to install transmission towers on the lands owned by respondent nos. 1 and 2 to transmit electricity. The appellants are licensee within the meaning of section 14 read with section 2(39) of 2003 Act. In exercise of the powers conferred by section 164 of 2003 Act, the appropriate Government has authorized the appellants to exercise powers under Part III of 1885 Act, pursuant to which they marked places on the land for erecting pillars and foundations to support extra High Voltage Electric transmission towers. The land-holders (respondent nos. 2 and 3) objected to the same leading to the writ petition, which has been allowed by the impugned judgment mainly on the ground that there has not been full compliance of 2006 Rules. However, liberty has been granted to the appellants to take steps as per the prescribed procedure. The learned single Judge held that the appellants have not, inter alia, followed the procedure prescribed by rule 3 of the Rules which mandates that if prior consent of the owner of the land has not been obtained, the appellants were obliged to apply to the District Magistrate or the Commissioner of Police. The impugned action has, therefore, been set aside with the liberty to follow the prescribed procedure. 3. While assailing the validity of the order of the learned single Judge, learned counsel for the appellants submits that respondent nos. 1 and 2 (the writ petitioners) have no enforceable right, because of the unrestricted powers vested in it by the said order dated 24.12.2003, to install transmission towers. He submits in the same vein that the appellants by the impugned action did not violate any legal or constitutional right of respondent nos. 1 and 2, because it does not amount to acquisition or requisition of their lands and they obtained only the right of user while the right, title, and interest of the same continues with the owners of the land. Learned counsel further submits that in view of the 4 provisions of rule 3(4) of the Rules, applicability of sub-rules 1 to 3 of rule 3 is completely obviated, a situation brought about by virtue of the powers conferred on the appellants by the order of the Govt. of India dated 24.12.2003 in terms of section 164 of 2003 Act. He next submits that in view of the said order dated 24.12.2003, the appellants are now vested with all the powers in terms of section 10 of 1885 Act and, therefore, they are not obliged to follow the procedure prescribed in sub-rules 1 to 3 of rule 3. He submits in the same vein that respondent nos. 1 to 3, the owners of the land in question, cannot raise objection to installation of the transmission towers but are entitled to compensation in terms of section 10(1)(d), read with section 16(3), rather than section 10(1)(b) of 1885 Act, nor under the Rules. He relies on the following judgments :- (i) The judgment dated 7.5.2005 passed by a learned single Judge of the High Court of Jharkhand in WP(C) No.993 of 2007 (Ajay Munjal Memorial Trust & Ors. vs. Power Grid Corporation of India & Ors.), and confirmed by a Division Bench of the same court by order dated 10.7.2007, passed in LPA No.202 of 2007. (ii) The judgment dated 22.12.2009, passed by a learned single Judge of this Court in MA No.72 of 2009 (Arvind Singh @ Arvind Kumar vs. Power Grid Corporation of India Ltd. & Ors.). (iii) The judgment of a Division Bench of this Court in the case of Sukku Mahto vs. State of Bihar, reported in 1992(2) PLJR 134. (iv) The judgment of a learned single Judge of this Court in the case of G V S Rama Krishna v Managing Director, A P Transco, reported in AIR 2009 Andhra Pradesh 158. (v) The judgment of a learned single Judge of the Madras High Court in the case of TST Kanznavi v Tamil Nadu Electricity Board & Ors, reported in AIR 2008 (NOC) 1328 (MAD.) = 2008 Madras Law Journal 703. (vi) The judgment of a learned single Judge of the Madras High Court in the case of R Kanan vs. Power Grid Corporation (India) Ltd., reported in AIR 2008(NOC) 2660 = 2008(4) Madras Law Journal 892. 4. Learned counsel for respondent nos. 1 and 2 submits that, in the present context, a clear distinction has been made between transmission towers and telegraph polls for various reasons. In his 5 submission, telegraph poles are single-legged and are without hazards. On the other hand, a transmission tower is multi-legged and is full of hazards. Therefore, in the latter case, prior consent of the owner or the occupier is imperative. He submits that the powers of the licensee (the appellant herein), under the provisions of section 164 of 2003 Act, is hedged with restrictions. He next submits that, in view of the mandatory provision of sub-rules 1 to 3 of rule 3, the licensee is obliged to seek prior consent and consider the objections, if any, of the owner or occupier which has not been done in the present case. Their objections are on record marked Annexure-2 series to the writ petition. 5. Learned counsel for respondent nos. 3 and 4 submits that the appellants, Bihar State Electricity Board, and the State of Bihar, have entered into a tripartite agreement which obviates prior permission of the owner. He also submits that the requisite order of the appropriate Government is under the provisions of section 164 of 2003 Act which confers all the powers of section 10 of 1885 Act on the appellants. 6. Learned counsel for respondent nos. 5 and 6 submits that the appellants are bound to consider the objections, and seek prior consent of the owner. In case of denial of the consent, forum of taking permission from District Magistrate or Commissioner of Police or authorized officer is available to the appellants in terms of sub- rule 2 of rule 3. 7. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to us that a clear distinction has been made out in the relevant provisions of law that the power and the authority to install telegraph poles on the one hand, and that of installation of transmission towers, on the other, are governed by different sets of law, and has to be clearly spelt out. This position and the distinction clearly manifests itself on 6 a dispassionate analysis of the relevant provisions of law governing the issues. We shall first of all deal with the power and the authority to install telegraph poles which, in our view, is governed by the provisions of section 164 of 2003 Act, read with the notification thereunder of 24.12.2003, read with section 10 of 1885 Act. Section 164 of 2003 Act is reproduced hereinbelow for the facility of quick reference :- “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, such 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.” It appears to us that the appropriate Government may by order in writing authorize the licensees (the present appellants) and others under 2003 Act, engaged in putting up electric lines or electric plants for the transmission of electricity, or to co-ordinate that activity, or for the purpose of telephonic or telegraphic communication necessary for co-ordination of the works, the powers available under section 10 of 1885 Act. It is evident on a perusal of the order issued by the Government of India, the appropriate Government in the present case, issued in terms of section 164 of 2003 Act, whereby the requisite power under 1885 Act has been conferred on the appellants. The width of the power is to be found under section 10 of 1885 Act, which is reproduced hereinbelow:- “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 immoveable property : 7 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.” (Emphasis added) 8. The provision applies only to telegraph lines and posts, and is evident on a perusal of proviso (a) to section 10 which, inter alia, provides that the power thereunder shall not be exercised except for the purpose of telegraph established or maintained by the Central Government or to be so established or maintained. In view of the factual position that the present case does not deal with the telegraph lines and posts, we need not discuss section 10, or the provisions of section 16 of 1885 Act which deals with the issues relating to compensation, any further. To conclude this aspect of the matter, we are clearly of the view that, in view of the order of the Central Government of 24.12.2010, the appellants have been vested with the powers to put up telegraph lines and posts on the lands of the owners and occupier which has to be an activity subservient to the dominant activity of transmission of electricity power. 9. We now pass on to the next aspect of the matter, namely, the power and authority of the appellants to set up transmission towers on the lands of the owners and the occupiers. We have 8 already seen hereinabove the scope, the extent, and the sweep of section 164 of 2003 Act, read with the order dated 24.12.2010, and also read with section 10 of 1885 Act which is confined to telegraph lines and posts. In such a situation, it is imperative to identify and locate the power and the authority of the appellants to install transmission towers on the lands of the owners and the occupiers. In our view, such a power is to be found in rule 3 of the Rules promulgated in terms of section 176 of 2003 Act. Section 176 is headed `Power of Central Government to make rules, and authorizes the Central Government to make rules to carry out the provisions of the Act. Rule 3 is reproduced hereinbelow:- “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 officer 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. (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 a Commissioner of Police or an authorised officer under 9 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.” 10. It is evident on a plain reading of rule 3 that it takes up electric supply line only and not telegraph lines and posts. This strengthens our conclusion in paragraph-8 hereinabove. Sub-rule (a) provides that the licensee shall obtain prior consent of the owner or occupier of the building or land, which inheres in itself the requirement of giving an opportunity to the owner or occupier to make a representation and prior consent is refused, then the licensee shall be required to apply its mind and dispose of the same by a reasoned order. This does not by itself vest in the licensee the authority to over-rule the objection(s) to be followed by their activities. The correct legal position is that, in the event of refusal to give prior consent, the licensee has the forum of appeal provided by sub-rule (b), and anyone aggrieved by order can move in revision before appropriate Commission under sub-rule (3) of Rule 3. We have indicated hereinabove the requirement on the part of the District Magistrate or the Commissioner of Police as the case may be, while considering the matter under sub-rule (a) and making an order under sub-rule (1), to consider very objectively and dispassionately while dealing with the appeal. It is relevant to state that, in our view, powers under sub-rules 1(b) and 1(4) are in the nature of quasi- judicial functions. It is further relevant to state that it will be open to the District Magistrate or the Commissioner of Police to allow or reject the appeal after recording reasons in support of his order. The first proviso to rule (b) is to the effect that, even if by virtue of permission structure has been made and sufficient cause has been shown by owner of land that the order under the first proviso to sub- rule (b) has with the passage of time has served its purpose, 10 direction can be issued to the licensee to remove the transmission towers. 10.1) Sub-rule (2) of rule 3 is equally important in the present context. It makes imperative for the authorities either under sub-rule (a) or sub-rule (b) to determine the amount of compensation as part of the order granting permission to the licensee to install transmission towers. With respect to the issues relating to compensation as per sub-rule (2), the forum of revision is available to both the sides before the appropriate Commission. We are informed at the Bar, as has also been noticed by the learned single Judge, that the Electricity Regulatory Commission is the appropriate Commission in the present context. 11. We now consider the scope and content of sub-rule (4) of rule 3 of the Rules. It appears to us that the meaning, content, and sweep of sub-rule (4) becomes evident once we realize the distinction between the telegraph lines and posts on the one hand, and the transmission towers, on the other, and clearly spelt out hereinabove. We are of the view that the scope and sweep of sub-rule (4) is confined to the issues relating to telegraph lines and posts, and does not apply to issues relating to installation of transmission towers. The Act would become unworkable if any different construction is put on sub-rule (4). In fact, in our view, the position is so clear that it does not require any interpretative process. 12. Coming to the facts of the present case, the appellants did not follow the procedure prescribed by rule 3 of the Rules. They failed to give any notice to respondent nos. 1 and 2, and made no effort to seek their prior consent. Their objections are marked Annexure-2 to the writ proceeding. It is thus evident that the prior consent of the owner or occupier was ever sought for and obtained and, therefore, any effort on the part of the appellants to install transmission towers becomes bad in law. Refusal of consent is 11 evident from a perusal of Annexure-2 series. However, in view of the legal position indicated hereinabove, the authorities are required to apply their mind and deal with the same in accordance with law and dispose of the same supported by a reasoned order. According to the appellants, this is not an appeal but a forum to seek permission. It goes without saying, as indicated hereinabove, that it will be open to the appellants to file an appeal before the District Magistrate in terms of the first proviso to rule 3. 13. We are mindful of the vital public interest involved in the present matter perhaps with all-India ramifications. In view of the doctrine of Eminent Domain, read with rule 3 of the Rules, the appellants have the power and the authority to install transmission towers on the lands of respondent nos. 1 and 2 in public interest, after following the procedure prescribed, and payment of compensation. We are in this connection reminded of the judgment of the Supreme Court in the case of Ranjit Thakur vs. Union of India, AIR 1987 SC 2386, where the importance of following the prescribed procedure has been emphasized. The observations made therein are to the effect that due observance of the prescribed procedure is a guarantee against arbitrary exercise of power. The relevant portion of the judgment is reproduced hereinbelow:- “ The procedural safeguards contemplated in the Act must be considered in the context of an corresponding to the plentitude of the summary jurisdiction of the Court-Martial and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the Statute. The oft quoted words of Frankfurther, J. in Viterelli v. Seaton, 359 US 535 are against worth recalling: “....... if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, 12 that procedure must be scrupulously observed ............ This judiciously evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish