IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY FOURTH DAY OF JUNE TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION NO :16420 of 2009 Between: Anmolu Satyanarayana. .....PETITIONER AND 1 The Superintending Engineer, Operation & others. .....RESPONDENTs This Court made the following : THE HON'BLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION NO :16420 of 2009 ORDER: This writ petition is filed by the petitioner seeking for issuance of writ of mandamus to declare the action of the respondents in proposing to lay high tension electricity lines across the petitioner’s mango grove without petitioner’s consent, without giving any notice and opportunity as illegal, arbitrary and violation of Articles 14 and 21 of the Constitution of India and violation of principles of natural justice and consequently, to direct the respondents to lay high tension electricity line in the alternative way (i.e., through puntha way-Government land). The 5th respondent is an agriculturist. He made an application in the Customer Service Centre, K.Kota for release of power to his agricultural land in R.S.No:60/V of Bandamcherla village, T.Narasapuram mandal, West Godavari District. The said application has been processed and estimation has been prepared and service line charges of Rs.43,200/-, development charges of Rs.8,000/-, service connection charges of Rs.325/- and security deposit of Rs.780/- have been prepared and the amount has beenpaid by the 5th respondent. For the purpose of giving power supply to the 5th respondent, the service line has to be drawn from the existing service connection and in the process, there is a necessity of erecting one pole at a distance of 60 meters from the existing service line. The said electricity connection is for the purpose of functioning of a bore well dug in the land of the 5th respondent for the purpose of agricultural operations. At that juncture, the petitioner filed the present writ petition stating that he is the absolute owner of an extent of Ac.6.00 of land in R.S.No:60 comprising of mango grove aged about 7 years and coconut plants aged about 2 years and the respondents-authorities pursuant to the application made by the 5th respondent, have sought to lay high tension electricity line across the mango grove and coconut garden of the petitioner. It is his case that when the respondents have sought to erect the high tension electricity line across the land of the petitioner, the petitioner got issued a telegraphic notice on 8.8.2009 restraining them from laying the high tension electricity line through his land. Without taking any action on the said notice, the respondents-officials have sought to lay high tension electricity line. On the other hand, on behalf of the official respondents, a counter affidavit has been filed contending that the 5th respondent has made an application in Customer Service Centre, K.Kota for release of power supply to his agricultural land in R.S.No:60/V of Bandacherla village, T.Narasapuram mandal, West Godavari District. He paid the required amount for the purpose of electricity connection. It is further stated that the distance between existing electricity pole and the existing bore well of the 5th respondent is only 60 meters. For the purpose of giving electricity connection to the bore well of the 5th respondent, only one pole is erected. It is also stated that the height of the wire would be around 21 feet and the wires were drawn taking into consideration that the minimum inconvenience is not caused to the petitioner. As on the date, there are no trees existing below the proposed line and the trees are at the distance of 3 feet. The alternative way suggested by the petitioner, would required to cover a distance of 500 meters. As the proposed line is convenient and it is only at a distance of 60 meters, the respondents have proposed to take action as per the provisions of section 67 of the Electricity Act 2003 and the rules made thereunder. On behalf of the 5th respondent, he has also filed counter stating that it is true that the petitioner is the absolute owner of an extent of Ac.6.00 of land. But, it is absolutely false that there is mango grove aged about 7 years and coconut plants aged about 2 years and that no inconvenience is caused to the petitioner due to laying of the electricity line. It is stated that the land of the petitioner is a vacant land as on that date and he is cultivating the land for regular crop. He made an application for electricity connection to his bore well for agricultural purpose. The distance between his bore well and the petitioner’s bore well is more than 100 meters. The petitioner is enjoying his bore well and cultivating the land. But, he does not allow the 5th respondent to cultivate his land and the petitioner is threatening to sell his land to him. While ordering notice before admission, this Court by order dated 24.8.2009 granted order of status quo. On behalf of the 5th respondent, vacate stay petition was filed along with a counter. On filing the said counter and vacate stay petition, this Court by order dated 11.11.2009 in W.V.M.P.No:3018 of 2009 vacated the interim order. Both the counsel i.e., the learned counsel for the petitioner and the learned counsel for the 5th respondent have submitted that consequent to vacating the order of status quo granted by this Court, the official respondents have erected one electricity pole between the petitioner’s bore well and the 5th respondent’s bore well for the purpose of giving electricity connection to the 5th respondent’s bore well. The learned counsel for the petitioner would submit that the action of the respondents is contrary to the provisions of section 67 of the Indian Electricity Act and section 12 (2) of the Indian Electricity Act. It is also submitted that the authorities before erecting the electricity pole, have to follow the provisions of the Electricity Act, which is mandate and in the instant case, the respondents-authorities have not followed any procedure and no notice has been given to the petitioner and thereby the respondents-authorities have high handedly sought to erect the high tension electricity line across the petitioner’s land. It is also submitted that under the provisions of section 67 of the Electricity Act, the petitioner is entitled to raise objection. But, no such procedure has been followed. Therefore, it is arbitrary and illegal. On the other hand, the learned counsel for the respondents- corporation submitted that section 67 of the Indian Electricity Act empowers the authorities to erect the electricity pole for the purpose of giving electricity connection. It is submitted that the 5th respondent had made an application in the customer center for electricity connection for the purpose of agricultural operations in the land situated in R.S.No:60/V and he has paid the necessary charges and the distance between the existing electricity facility and the 5th respondent’s bore well is less than 60 meters and by erecting one electricity pole, the electricity can be made available to the 5th respondent. Therefore, the officials have taken steps to erect the electricity pole without causing any inconvenience or damage to the petitioner’s land. At this juncture, the petitioner has approached the Court and obtained status quo. It is also submitted that on filing the vacate stay petition on behalf of the 5th respondent, the status quo was vacated and on that, the electricity pole is erected and power is given to the 5th respondent. Therefore, there is no violation of any provisions on the part of the authorities. On behalf of the 5th respondent, the learned counsel would submit that section 164 of the Electricity Act empowers the authorities to place the electric supply lines or electric plant for the transmission of electricity or for the purpose of telephonic or telegraphic communications necessary for the proper co ordination of works. It is also submitted that pursuant to the said power, the Government issued G.O.Ms.No:115, Energy (PR.III), 7th October, 2003 conferring powers on the transmission corporation for the supply of electricity in the various districts including West Godavari District wherein the land of the petitioner is situated. It is also submitted that the said G.O was also issued keeping in view of the provisions of section 10 of the Indian Telegraph Act, 1885 which empowers the Telegraphic authorities to place and maintain telegraphic lines and poles. Pursuant to the said power and pursuant to the application made by the 5th respondent and having taken into consideration of the fact that necessary charges were paid by the 5th respondent, the respondents-authorities have sought to erect the electricity pole for the electricity supply to the 5th respondent’s bore well located in his land. He also submitted that no convenience or damage would cause to the petitioner on account of erecting the electricity pole in the petitioner’s land. It is also submitted that if any damage is likely to cause on account of erecting the electricity pole, then only the petitioner is entitled to the damages. In support of his contention, he placed reliance on the judgment of this Court reported in G.V.S. RAMAKRISHNA V. A.P. TRANSSCO ([1])wherein it is observed thus: “Section 10 of the Indian Telegraph Act, 1885, which deals with the power of the telegraph authority to place and maintain telegraphic lines and posts runs as under: Section 10 Power for telegraph authority to place and maintain telegraph lines and posts: The telegraph authority may, from time to time, place and maintain in a telegraph line under, over, along, or across, and posts in or upon, any 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 35 subs. By the A.O.1937 for “Government” (Central Government) or to be so established or maintained; (b)the 36 subs. By the A.O. 1937, for “Government” (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 ©, shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers. As could be seen, section 10 of the Indian Telegraph Act, 1885 empowers the telegraph authorities to place and maintain the telegraph lines under, over, along or across and posts in or upon any immovable property. However, the said power shall not be exercised in respect of any property vested in or under the control or management of any local authority without the permission of that authority. The proviso (d) to section 10 of the Indian Telegraph Act, 1885 further made it clear that while exercising powers conferred under section 10 the Telegraph authority shall do as little damage as possible and when it has exercised those powers in respect of any property other than the property under the control or management of the local authority shall pay full compensation to all the persons interested for any damage sustained by them by reason of exercise of the said powers. It is also relevant to note that as per proviso (b) of section 10 of the Indian Telegraph Act, 1885, 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 lines or posts. In the circumstances, the impugned action of the respondents cannot be held to be arbitrary, illegal or contrary to the provisions of the Electricity Act, 2003 on any ground whatsoever. Hence, no mandamus can be issued restraining the respondents from proceeding with the erection of poles and transmission lines through the lands of the petitioners. However, this shall not preclude the petitioners to claim the compensation by working out the appropriate remedy as available under law in case any damage is sustained to their property.” The objection of the petitioner is that if the electricity pole is laid, his mango tope and coconut garden will be affected. In the counter filed by the respondents-officials and the 5th respondent, it is elicited that there is neither a mango garden nor a coconut garden. But, it is a vacant land. When the steps were taken to erect the electricity pole, no reply affidavit has been filed to the said averments made by the official respondents and the 5th respondent denying the said averments made by them. It is also stated by the official respondents in the counter that no inconvenience or damage would be caused to the petitioner on account of erecting the electricity pole. It is also stated that there is no other convenient alternative land available for erecting the electricity pole for the purpose of providing electricity supply to the bore well of the 5th respondent. Admittedly, the respondents have got power to provide electricity supply to the licensees who complied with the provisions of licence for providing electricity supply. Under the similar circumstances, this Court in its judgment (Citation-1 supra) held that, “For the aforesaid reasons, I am of the opinion that section 164 of the Electricity Act, 2003 read with section 10 of the Indian Telegraph Act, 1885 recognized the absolute power of the A.P Transco to proceed with placing of electric supply lines or electric posts 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 electric supply lines. In other words, neither the acquisition of the lands is necessary nor there is any need for consent of the owner or occupier. It is also relevant to note that since sections 28 or 42 of the Electricity (Supply) Act,1948 are not saved under section 185 of the Electricity Act, 2003, there is no need to publish a sanctioned scheme nor it is necessary to give any notice by publication in local news papers as required under section 29 (2) of the Electricity (Supply) Act, 1948. In spite of the same, the notification dated 14.7.2008 was published in the A.P. Gazette as well as two local dailies inviting objections from the interested/aggrieved persons and no objections were received from any one.” Therefore, having regard to the judgment of this Court in the citation supra, in the similar circumstances, if the affected parties sustained any loss they are entitled only for the damages. It is the case of the petitioner in this case that even before erecting the electricity pole, the petitioner got issued a legal notice. But, the respondents have not passed any order thereon. In these circumstances, I feel that it is just and proper to permit the petitioner to make a representation to the authorities afresh by referring to the earlier telegraphic notice issued to the respondents by calculating the damage sustained by him on account of erecting the electricity pole within two (2) Weeks from the date of receipt of a copy of this order and on filing such an application, the respondents are directed to dispose of the same in accordance with law, within four (4) Weeks from that day. With the above direction, this writ petition is disposed of. ____________________ Justice G.Chandraiah Date:24.6.2010 gurc THE HON'BLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION NO :16420 of 2009 24th June, 2010 [1] 2009(3) ALT 502