IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.5635 of 2010 along with CWP No.6123 of 2010. Judgment reserved on: 17.12.2010. Date of decision : 24.12.2010 1. Sh.Anoop Mehta and others in CWP No.5635 of 2010 2. Sh.Ram Swaroop Sharma in CWP No.6123 of 2010 …Petitioners Versus. Jaypee Powergrid Ltd. and others (in both cases) ….Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge . The Hon’ble Mr. Justice Sanjay Karol,, Judge. Whether approved for Reporting ?Yes For the Petitioner (s): M/s.Pratap Singh Goverdhan and Manoj Verma, Advocates. For the Respondent(s): Mr.Ajay Mohan Goel, Counsel for R-1. Mr.Bimal Gupta, counsel for R-2. Mr.P.P.Chauhan, CGSC for R-3. Mr. Rajesh Mandhotra, Dy.A.G. for respondent-State. Deepak Gupta, J. 1. These two petitions are being decided by a common judgment since common questions of law and fact are involved in the case. 2. Briefly stated, the facts of the case are that respondent No.1 is laying a high voltage transmission line known as “Karcham-Wangtoo- Abdulapur Transmission Line”. Admittedly, - 2 - portion of this line has to pass over and above the land of petitioners in CWP No.5635 of 2010. It is also not disputed that the petitioners in CWP No.5635 of 2010 raised objections to the laying of the lines by respondent No.1 and thereafter respondent No.1 filed a suit in the Court of Civil Judge (Senior Division), Rajgarh, District Sirmaur, H.P. This suit was filed in June 2010. Along with the suit, an application under Order 39 Rules 1&2 was also filed. The petitioners Anoop Mehta and others filed written statement and counter claim in the suit. Vide order dated 30.7.2010 the learned Civil Judge, Rajgarh restrained the petitioners Anoop Mehta and others from causing loss, injury, obstruction, hindrance or causing prejudice to the construction work of the transmission line in any manner over the suit land of the aforesaid persons till disposal of the suit. 3. Along with the counter claim an application was filed praying that the Jaypee Power Grid Corporation, respondent No.1, be restrained from entering into the land of the petitioners - 3 - Anoop Mehta and others but this application was rejected on 30th July, 2010. Appeals filed against the aforesaid orders by the petitioners Anoop Mehta and others are still pending. In the meantime, the petitioners Anoop Mehta and others also filed the present writ petitions in which they pray for the quashing of the notification dated 27th January, 2009, Annexure P-2, whereby the Jaypee Powergrid Corporation has been declared to be a Telegraph Authority under Section 164 of the Electricity Act, 2003. 4. The main ground of challenge is that the procedure prescribed was not followed before issuing the notification in question and clear two months’ notice was not given to the public to file objections. It is further alleged that the names of the villagers were not mentioned in the publications inviting objections and therefore the publications Annexure P-1 are not in accordance with the guidelines. It was also alleged that the publication has not been made in two newspapers. It is lastly contended that even if respondent No.1 is deemed to be a - 4 - Telegraph Authority it can only exercise such powers in accordance with the Telegraph Act and cannot take the law in its own hands. 5. On the other hand Sh.Ajay Mohan Goel, learned counsel for respondent No.1 urges that the guidelines or procedure laid down are only directory and not mandatory and in any event no prejudice has been caused to the petitioners. It is further submitted that publication has been made in two newspapers. It is also contended that the writ petitions are not maintainable in view of the pendency of the civil suit. 6. We shall first take up the question with regard to the maintainability of the writ petitions. The relief claimed in the writ petitions is totally different from the reliefs claimed before the Civil Court. The ambit and scope of the notifications of the Ministry are not subject matter of the suit before the learned trial Court. There are certain very important questions of law involved in this case and therefore we are of the considered view that this petition should be entertained. We may in this behalf make reference to the judgment of - 5 - the Delhi High Court in M/s, Cycle Equipments (P.) Ltd. and another vs. Municipal corporation of Delhi and others, AIR 1983 Delhi 94 and the Calcutta High Court in Rampuria Brothers Pvt. Ltd. Vs. Calcutta Municipal Corporation and others, AIR 1998 Calcutta 370, wherein these Courts have clearly held that in certain extra- ordinary situations a party who has filed a civil suit can also approach the High Court in exercise of its writ jurisdiction. 7. It is not disputed before us that the procedure for obtaining authorization under Section 164 of the Electricity Act as applicable at the relevant time is as follows: “In order to process the request from private transmission companies as well as generating companies who are required to construct, maintain and operate dedicated transmission lines, the following procedure has been prescribed: a)The licensee/applicant shall cause such inter-state transmission scheme to be published in Government of India Gazette and in at least two local daily newspapers along with a notice of the date, not being less than two months after the date of such publication, before which any interested person may make a representation on such scheme. The licensee/ applicant shall take into consideration the objections/ representations, before finalizing the optimal route alignment. Thereafter licensee/ - 6 - applicants shall submit a certificate along with application under Section 164 to this effect. b)xxxxxxxxxx Any transmission licensee or generating company in the case of a dedicated transmission line directly connected to inter-state transmission system are required to follow the above procedure for seeking approval under Section 164 of the Electricity Act, 2003.” 8. This procedure lays down that the scheme of the private Company which has been given the licence should be published in the Government of India Gazette and at least two local daily newspapers along with a notice of the date not being less than two months after the date of such publication before which any interested person can file objections to such scheme. The licensee is thereafter required to consider such representations and objections before finalizing the optimal route alignment. 9. Sh.P.S. Goverdhan, learned counsel for the petitioners submits that the notice issued did not give any clear-cut date before which date such objections could be submitted. He further submits that the publication in the gazette of India was made on 29th November, 2008 whereas the notification was issued on 27th - 7 - January, 2009 before the period of two months had elapsed. He, therefore, submits that since the procedure has not been followed the notification issued under Section 164 of the Electricity Act is illegal and be quashed. He also alleges that the name of the villages including the village of the petitioners was not mentioned in the notice and therefore the notice was not issued in substantial compliance with the requirements of the prescribed procedure. 10. The first question which has to be decided is whether the procedure prescribed is only a guideline and therefore directory or it is mandatory and must be followed. It would be pertinent to mention that under Section 164 of the Electricity Act, the Government can declare a licensee to be a telegraph authority within the meaning of Indian Telegraph Act, 1885 and such licensee/applicant can exercise all the powers of the authority. 11. A perusal of the Indian Telegraph Act, 1885 shows that the Act gives wide powers to the “authority”. We must appreciate that this Act - 8 - was enacted in the year 1885. The telegraph authority under the Act is the Director General (Post and Telegraphs) or the officer empowered by him. This authority is given wide powers under Section 10 of the Telegraph Act to place and maintain telegraph lines and posts. We are concerned in this case with Sections 10, 16 and 18 of the Indian Telegraph Act which read as follows: “10. Power for telegraph authority to place and maintain telegraph lines and posts. The telegraph authority may, from time to time, place and maintains 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 - 9 - (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. 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, 1860 (45 of 1860). (3) If any dispute arises concerning the sufficiency of the compensation to be paid under section 10, clause (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him. (4) If any dispute arises as to the persons entitled to receive compensation, or as to the proportions in which the persons interested are entitled to share in it, the telegraph authority may pay into the court of the District Judge such amount as he deems sufficient or, where all the disputing parties have in writing admitted the amount tendered to be - 10 - sufficient or the amount has been determined under sub-section (3), that amount; and the District Judge, after giving notice to the parties and hearing such of them as desire to be heard, shall determine the persons entitled to receive the compensation or, as the case may be, the proportions in which the persons interested are entitled to share in it. (5) Every determination of a dispute by a District Judge under sub-section (3), or sub-section (4) shall be final: Provided that nothing in this sub-section shall affect the right of any person to recover by suit the whole or any part of any compensation paid by the telegraph authority, from the person who has received the same. 18. Removal of trees interrupting telegraphic communication. (1) If any tree standing or lying near a telegraph line interrupts, or is likely to interrupt, telegraphic communication, a Magistrate of the first or second class may, on the application of the telegraph authority, cause the tree to be removed or dealt with in such other way as he deems fit. (2) When disposing of an application under sub- section (1), the Magistrate shall, in the case of any tree in existence before the telegraph line was placed, award to the persons interested in the tree such compensation as he thinks reasonable, and the award shall be final.” 12. A bare reading of these provisions clearly shows that the authority gets the powers of the sovereign to enter into any immovable property of any person. When such great powers are vested in an authority it is expected to exercise - 11 - restraint in the exercise of such powers. The Government and its functionaries are always expected to behave strictly in accordance with law. When private Companies are given licenses to lay electricity lines and they seek a declaration to the effect that they should also be vested with these sovereign powers by virtue of the provisions of Section 164 of the Electricity Act, we do not see any reason why they should not comply with the procedure prescribed by the Central Electricity Regulatory Commission (CERC) for this purpose. A private Company seeking such wide powers must comply in letter and spirit with the procedure prescribed. They cannot be heard to argue that the procedure is only in the nature of guidelines and not mandatory. 13. Having held so every breach of procedure does not make the entire action illegal. The party which alleges that there is breach of procedure must show that the breach is of such nature that it has caused prejudice to the party and therefore such breach entitles it to claim that - 12 - the notification issued in breach of such procedure must be struck down. 14. In the present case, from the material on record, we are of the view that there has been substantial compliance with the procedure. Though in the petition it was alleged that notification inviting objections was issued only in one newspaper, we find that in fact publication was made both in Amar Ujala as well as Dainik Jagaran dated 18th August, 2008. It would have been better if a date had been clearly mentioned in the said publications that objections should be submitted before the said date. A perusal of the publications made in the newspapers shows that there was no cut off date mentioned before which the objectors had to submit their objections. Even the time period of two months was not clearly mentioned. However, the fact remains that no person filed objections even after two months and since objections have not been filed it cannot be said that any party has been prejudiced. - 13 - 15. It is next urged that as per the proforma/format of the public notice to be issued the names of the villages, Tehsils and Districts have to be given. In the present case, the notification does not specifically give the name of the villages but gives the areas of the Panchayats of various Districts. On this basis it is contended that the notification should be set-aside. 16. As far as the objections regarding naming the villages is concerned when the lines are to be as long as 216 kms., as in the present case, it may not be possible for the licensee to name each and every village in the notification. As far as the gazette notification is concerned there is no manner of doubt that the period from the date of publication in the gazette does not even meet the requirements of the guidelines since the notification empowering respondent No.1 under Section 164 of the Electricity Act was issued before two months had expired. 17. We are not inclined to quash the notification because the same was issued as far back as in January, 2009 and the petition filed in - 14 - September, 2010. By this time, a huge portion of the work of laying the transmission line is over. The respondents have spent large amounts of money on the erection of such transmission lines and the clock cannot be set back after such a long time. 18. However, for the future we would like to make it clear that the publication/notice both in the newspapers and in the gazette should be made at least two months in advance. A specific cut off date should be given in such publication/notice and further more the names of all the bigger villages, if not all the villages, should be reflected in the notice. We also direct that notice should not only be published in newspapers only but there should be a system such as beat of drums, distribution of leaflets etc. whereby the poor and illiterate villagers are made aware of their right to file objections in the villages and public hearing should be conducted to hear their grievances in the villages. We direct the CERC to modify the guidelines to ensure that illiterate and poor - 15 - villagers in far flung areas are made aware of their rights of filing objections and they are heard at a place which is convenient to them. 19. We also find that the private transmission Companies are acting in gross violations of the provisions of the Telegraph Act. We may make it clear that we have not entered into two controversies raised before us; the first is with regard to the scope and ambit of the powers of the telegraph authority and second the manner of calculating compensation. We leave these questions open to be decided in some other proceedings. 20. We however find that under Section 10 the power given to the Telegraph authority is only to place and maintain a telegraph line under, over, along or across and posts in or upon any immovable property. What is the scope of this section will have to be decided in some other proceedings. But we must note that Section 10(d) clearly envisages that the telegraph authority shall do as little damage as possible when it exercises these powers and is also - 16 - required to pay full compensation for the damage suffered by any person. 21. Section 16 (1) clearly lays down that if any person resists or obstructs the telegraph authority then the District Magistrate may in his discretion order that the telegraph authority shall be permitted to exercise the powers vested in it. Section 16(2) provides that if any person despite the order of the District Magistrate resists the exercise of those powers, he shall be deemed to have committed an offence punishable under Section 188 of the Indian Penal Code. Therefore, we are of the considered opinion that when a person obstructs the telegraph authority then the telegraph authority must approach the District Magistrate and obtain an order from him under Section 16(1) of the Indian Telegraph Act, 1885. Though filing of a suit may not be barred in strict terms, when we read Section 16 as a whole it is more than apparent that the telegraph authority must first approach the District Magistrate. If there is dispute with regard to compensation payable that has to be - 17 - decided by the District Judge in terms of Section 16(3) of the Indian Telegraph Act. 22. The practice which the private transmission Companies are following, of filing suits must be deprecated and they would be better advised to first file applications under Sections 16(1) and only thereafter if the person still resists they can take action under Section 16(2) and in such eventuality may also file a suit against such persons who obstruct their activities. 23. We also find that the private transmission companies are totally ignoring the provisions of Section 18 of the Telegraph Act. A bare reading of this provision shows that when a tree standing or lying near a telegraph line interrupts or is likely to interrupt such communication, they must apply to a Magistrate of the first or second class who alone can order the tree to be removed or dealt with in any other manner. The Magistrate in such circumstances is also required to award reasonable compensation to the person(s) interested in such tree. This provision of law is not being followed at all by the private transmission - 18 - companies. We have not come across a single case where they have approached the Magistrate for permission. The transmission Companies only take the permission of the Forest Department, fell the trees and pay compensation as assessed by the Forest Department. This is totally illegal and not at all in accordance with Section 18 of the Act. 24. In the present case, the provisions of Sections 16 and 18 have been flouted by the respondents with impunity. Both these provisions were not followed. In view of the restraint order passed by the learned Civil Judge, the respondent No.1 liable entered upon the land of the petitioners and has already erected the electricity pylon and laid the line. We, therefore, do not propose to interfere in such working any longer but we do hold the respondent No.1 to pay compensation of Rs.50,000/- to the petitioners in CWP No.5635 of 2010 for the damage caused to their property without following the procedure prescribed by law. It is made clear that this amount shall not be taken into consideration - 19 - while assessing the compensation payable to the petitioners either under Section 16 or under Section 18 of the Act. 25. In view of the aforesaid discussion, we dispose of the CWP No.5635 of 2010 with the following directions: (i) That respondent No.1 shall pay to the petitioners compensation of Rs.50,000/- as damages which will be in addition to the compensation/damages, if any, assessed under the provisions of the Indian Telegraph Act or Indian Electricity Act. (ii) We direct the respondent No.3 and Central Electricity Regulatory Commission to ensure that the guidelines should be framed in such a manner that the publication of notices and hearing of objections, if any, are made in the manner detailed in para 18 above. (iii) We further direct respondents 1&2 to ensure that they should comply with the provisions of Sections 16 & 18 of the Indian Telegraph Act in future. 26. As far as CWP No.6123 of 2010 is concerned, the same is rejected in view of the fact that according to the respondents no land of the - 20 - petitioners is to be used for laying of the transmission line. No costs. ( Deepak Gupta ), J. December 24, 2010. ( Sanjay Karol ), J. PV