1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE23D DAY OF NOVEMBER2018BEFORE THE HONBLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.8786 OF2013C/W WRIT PETITION NO.11978/2013 (GM-KEB) WP NO.8786/2013BETWEEN :
MR MANOHAR SHETTY SON OF M SANJEEVA SHETTY AGED ABOUT49YEARS RESIDING AT MANJALAPADPU KABAKA VILLAGE PUTTUR TALUK DAKSHINA KANNADA DISTRICT PETITIONER (BY SRI.SHRIDHAR PRABHU, ADV.) AND:
1. THE DEPUTY COMMISSIONER AND THE DISTRICT MAGISTRATE DAKSHINA KANNADA DISTRICT D.C. OFFICE COMPOUND MANGALORE-575001 2. KARNATAKA POWER TRANSMISSION CORPORATION LIMITED REPRESENTED BY ITS EXECUTIVE ENGINEER (ELE) MAJOR WORKS DIVISION KAVOOR, MANGALORE-575015 DAKSHINA KANNADA (BY SRI.M.JYOTHI AGA FOR R1 RESPONDENTS2SRI.S.SRIRANGA ADV. FOR R2) - - - THIS WRIT PETITION IS FILED UNDER ARTICLES OF THE CONSTITUTION OF INDIA, PRAYING to DECLARE THAT THE ORDER DT.15.1.2013 PASSED BY R-1 IS ARBITRAY, ILLEGAL, WITHOUT JURISDICTION, VOID AB INITIO, PASSED WITHOUT FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE, IS AGAINST THE ARTICLES14 19(1)(G) 21 & 300A OF THE CONSTITUTIONOF INDIA & FOR ISSUANCE OF A WRIT OF CERTIORARI OR OTHER APPROPRIATE WRIT, ORDER OR DIRECTION TO QUASH THE SAME. WP NO.11978/2013BETWEEN :
MR. SUNIL KUMAR SHETTY S/O H CHANDRASHEKAR SHETTY, AGED ABOUT45YEARS, R/AT PANNEGUTHA, BELLARE KABAKA VILLAGE, SULLIA TALUK, DAKSHINA KANNADA DISTRICT PETITIONER (BY SRI. SHRIDHAR PRABHU, ADV.) AND:
1. THE DEPUTY COMMISSIONER AND THE DISTRICT MAGISTRATE DAKSHINA KANNADA DISTRICT, D C OFFICE COMPOUND, MANGALORE- 575001 2. KARNATAKA POWER TRANSMISSION CORPORATION LIMITED, REPRESENTED BY ITS EXECUTIVE ENGINEER(ELE) MAJOR WORKS DIVISION, 3 KAVOOR, MANGALORE- 575015 DAKSHINA KANNADA RESPONDENTS (BY SMT.M.JYOTHI AGA FOR R1 SRI.S.SRIRANGA ADV. FOR R2) - - - THIS WRIT PETITION IS FILED UNDER ARTICLES OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT THE ORDER DT.15.1.2013, PASSED BY THE R1, AT ANN-A, IS ARBITRARY, ILLEGAL, WITHOUT JURISDICTION, VOID AB INITIO PASSED WITHOUT FOLLOWING THE PRINCIPLES OF NATURARL JUSTICE, IS AGAINST THE ARTICLES14 19(1)(g) 21 & 300A OF THE CONSTITUTION OF INDIA & FOR ISSUANCE OF WRIT OF CERTIORARI. THIS DAY, THE COURT MADE THE FOLLOWING:-
"THESE PETITIONS COMING ON FOR FINAL HEARING ORDER Sri.Sridhar Prabhu, learned counsel for the petitioner. Smt.M.Jyothi, Learned Additional Government Advocate for respondent No.1. Sri.S.Sriranga, learned counsel for respondent No.2. In these writ petitions, the petitioner has assailed the validity of the order dated 15.01.2013 passed by the Deputy Commissioner and the District Magistrate, 4 Mangalore. The petitioner also seeks quashment of notification dated 21.12.2010 contained in Annexure-B as illegal and opposed to the provision of Electricity Act, 2003 (hereinafter referred to as the Act for short). In order to appreciate the petitioners challenge to the impugned order, few facts need mention, which are as stated infra:
2. The petitioner is the owner and is in possession of the lands situated at Puttur, Kasba Village of Puttur Taluk of Dakshina Kannada District. The respondent No.2 is a transmission licensee under Section 14 of the Act. It is averred in the writ petitions that under the terms and conditions of the transmission licence, the respondent No.2 has been permitted to establish, maintain facilities to transmit electricity of 66 KV and higher voltage level and respondent No.2 cannot erect any over head line connecting one sub-station to another sub-station or a sub-station to a load center. The aforesaid respondent published a public notice 5 dated 21.12.2010, by which public in general was informed about the proposed erection of transmission line from Kabaka Railway Crossing to Puttur sub-station situated at a distance of 4.50 Kms. at an estimated cost of Rs.562,43/- Lakhs. As per the plan, the proposed line was supposed to cross Vivekananda College Road belonging to Puttur Town Municipality. It is the case of the petitioner that for placing electricity overhead line or through a private land by a licensee is governed under Sections 67, 68 and Section 164 of the Act. It is also averred that Government of Karnataka, which is the appropriate Government for respondent No.2 has not framed any Rules under Sections 67 & 68 of the Act and therefore, the provisions of Sections 12 to 18 of the Electricity Act, 1910 (since repealed) are applicable in view of Section 185 (2)(b) of the Act.
3. It is pleaded in the writ petition that no permission was either sought or obtained from Puttur Town Municipality for crossing the road belonging to the 6 Municipality by respondent No.2 as provided under Section 12 (2) of the Electricity Act, 1910 and the respondent No.2 also did not seek or obtain any prior approval of the Government of Karnataka also for erection of the proposed line as provided under Section 68 of the Act. It is also stated that consent of the petitioner was also not obtained.
4. The petitioner objected to the erection of the proposed line. The respondent No.2 approached the Deputy Commissioner and the District Magistrate, Mangalore for ordering the removal of obstruction for erection of proposed line through the land in question. Thereupon, respondent No.1 viz., Deputy Commissioner and the District Magistrate by an order dated 15.01.2013 in exercise of powers under Section 16(1) of the Indian Telegraph Act, 1885 granted permission to respondent No.2 to lay double circuit electricity transmission line from Kabaka Railway Crossing, Puttur Taluk in the existing tower 28 to Puttur
KV7electricity Sub-division in the existing 110 KV Single Circuit Nettlemudnur-Puttur Electricity corridor for a distance of 4.5 kms. between the towers 13 to 16 on the land of the petitioner as per the technically sanctioned plan and to lay the electricity line. It is averred in the writ petition that he order passed by the Deputy Commissioner and the District Magistrate, Mangalore is per se without jurisdiction and is illegal. In the aforesaid factual background the petitioner has approached this Court.
5. Learned counsel for the petitioner at the outset has invited attention of this Court to Sections 2 (72), 2 (73), 12 and Section 164 of the Act. It is further submitted that the proposed work in respect of which the permission has been granted by the Deputy Commissioner and the District Magistrate does not fall within the purview of expression transmission lines, as the lines in question are not laid for transmitting electricity from the generating station to another 8 generating station or sub-station. Therefore, the powers under Section 164 of the Act cannot be invoked by respondent No.2. It is further submitted that the lines in question is a overhead line and therefore, the provisions of Section 67 are attracted and in case of any dispute, the matter has to be adjudicated by the appropriate commission, prescribed under Section 67(4) of the Act. It is also pointed out that the transmission licence was issued in favour of respondent No.2 on 06.12.2000 and the same was valid for a period of 15 years and the same has already expired. Therefore, in view of bar contained in Section 12 of the Act, the respondent No.2 has no authority to carry out the work in question.
6. Learned counsel for the petitioner has referred to the averments made in paragraphs 3.8 to 3.19 of the writ petition and has submitted that the consent of the owner viz., the petitioner, as required under Section 12 (2) of the Electricity Act, 1910 has not 9 been taken. It is argued that the Act being the special statute and since Section 174 of the Act contains a non- obstante clause, the provisions of the Act would prevail over the provisions of the Indian Telegraph Act, 1885, and Section 67 of the Act would be applicable. It is also argued that the provisions of the Electricity Act, 1910 would prevail over the provisions of the Indian Telegraph Act, 1885 and respondent No.2 is not a Telegraphic authority as defined under the Indian Telegraph Act, 1885. Lastly, without prejudice to the submissions made, it was contended that the petitioner is ready to provide the alternative land to the respondents for shifting the lines in question.
7. On the other hand, learned counsel for respondent No.2 has submitted that the order impugned in this petition was passed on 15.01.2013 and at the aforesaid time, the petitioner had the licence. Therefore, the submission made by learned counsel for 10 the petitioner that respondent No.2 cannot invoke powers under Section 164 of the Act is misconceived.
8. Learned AGA for respondent No.1 submits that the transmission line was laid down in the year 1982 and the instant case is a case of the existing lines. It is further submitted that on account of natural wear and tear the work of upgrading of existing line was undertaken. It is also submitted that the contentions, raised by the petitioner before this Court were not only raised before the Deputy Commissioner and the District Magistrate.
9. On the other hand, the learned counsel for respondent No.2 invited the attention of this Court to Sections 2 (20), 2(7) and 2 (73) as well as Section 14 of the Act. It is further submitted that admittedly respondent No.2 is a State Transmission Utility and under Section 14 of the Act it shall be deemed to be a transmission licencee. Therefore the contention of the petitioner that the petitioner is not a transmission 11 licencee deserves to be discarded. It is argued that the issue whether or not the respondent No.2 is required to obtain consent of the owner of the land before utilizing the land for laying down the electricity line and whether the provisions of Section 164 of the Act can be invoked by respondent No.2 have already been examined by a Bench of this Court in the case of SRI.B.H.NARAYANASWAMY, BANGALORE & OTHERS VS. THE KARNATAKA POWER TRANSMISSION CORPORATION LIMITED ILR2010KAR356 Learned counsel for respondent No.2 has also referred to a decision of the Division Bench of Bombay High Court in the case of SHRI.VIVEK BRAJENDRA SINGH VS. STATE GOVERNMENT OF MAHARASHTRA, W.P.No.256/2012 as well as decision of Bench of this Court in the case of N.M.GIRI & ORS., ETC. VS. M/S AMR POWER PVT. LTD. & ORS., 2009 (6) AIR KAR R44 10. It is also pointed out that before the Deputy Commissioner and the District magistrate, the 12 grievance, which was raised by the petitioner, was confined to alignment of the route of the transmission line and the fact that he was not served with the personal notice. It is also submitted that the work in question had been completed and the petitioner has not claimed damages to the knowledge of the respondent No.2. It is also submitted that the work in question, in respect of which permission has been granted to respondent No.2 under Section 16 of the Indian Telegraph Act, 1885 falls within the purview of Section 2 (77), 2 (20) of the Act. It is further submitted that the respondent No.2 is entitled to invoke Section 164 of the Act. It is urged that the work in question was in fact the work relating to the change of conductor in the existing corridor. It is also submitted that the decision taken by the Deputy Commissioner and the District Magistrate on the basis of meticulous appreciation of the material placed before him, which does not call for any interference by this Court in exercise of power under Article 226 of the Constitution of India. 13 11. By way of rejoinder reply learned counsel for petitioner has invited the attention of this Court to Annexure-D annexed to the writ petition and has submitted that the notice has been issued to the petitioner under Section 67(2)(c) of the Act and therefore, the sanction has to be obtained by the respondent No.2 for laying down the electricity line from the appropriate Government under Section 68(3) of the Act and the mechanism provided under Section 68 (4) of the Act has to be resorted to. It is reiterated that the work in question is not a transmission line and there is no authorization in favour of respondent No.2 to carry out the work in question. Reference has also been made to a decision dated 07.09.2011 passed by the appellate tribunal for electricity which has been annexed with the writ petition at Annexure-G. It is submitted that the decision relied upon by the learned counsel for respondent No.2 in the case of SRI.B.H.NARAYANASWAMY, BANGALORE & OTHERS VS. 14 THE KARNATAKA POWER TRANSMISSION CORPORATION, SHRI.VIVEK BRAJENDRA SINGH VS. STATE GOVERNMENT OF MAHARASHTRA & N.M.GIRI & ORS., ETC. VS. M/S AMR POWER PVT. LTD. & ORS. referred to supra has no application to the fact situation of the case, as the aforesaid decisions pertains to an action taken in purported exercise of power under Section 164 of the Act whereas action, in the case of the petitioner has been taken under Section 67 of the Act.
12. I have considered the submissions on both the sides and have perused the record. The following issues emerge for consideration in these writ petitions: (i) Whether in view of the fact that Rules have not been framed under Section 67 to 69 of the Act, provisions of Sections 12 to 18 of the Electricity Act, 1910 shall apply and consequently, the consent of the owner was required to be taken before installation of the transmission lines?. 15 (ii) Whether Section 174 of the Electricity Act, which is a special law would prevail over the Indian Telegraph, 1885?. (iii) Whether the transmission licence of respondent No.2 has expired and therefore, respondent No.2 had no authority to execute the work in question?. (iv) Whether the line in question is not a (v) transmission line but an overhead line therefore the provisions of 67 and 68 of the Act will apply and mechanism provided under Section 68(4) of the Act has to be resorted to?. Whether in view of the fact that notice was issued to the petitioner under Section 67 (2) (c) of the Electricity Act, 2003, the sanction was required to be obtained by respondent No.2 from the appropriate Government?. Issue No.1:
16. 13. Admittedly, in the instant case, the Government of Karnataka has issued a Notification dated 16.12.2010 and a scheme has been published under Section 164 of the Act to lay down the electricity lines for transmission of electricity. Thus, respondent No.2 exercised powers of telegraph authority under the provisions of Indian Telegraph Act, 1885 in view of the Notification issued under Section 164 of the Act and not under Sections 12 to 18 of the Electricity Act 1910, which is temporarily saved. In view of the authorization in terms of Section 164 of the Act, respondent No.2 has the authority for placing telegraphic lines and posts for the purposes of a electric line for transmission of electricity under Sections 10 to 16 of the Indian Telegraph Act, 1885. The aforesaid provisions do not require the consent of an owner or an occupier of the land to be obtained before laying down the transmission line. In view of the Notification under Section 164 of 17 the Act, the respondent No.2, which is a telegraph authority, exercises the powers under Sections 12 to 18 of the Act. Therefore, the contention that Section 174 of the Act being the special law would over ride the provisions of the Electricity Act, 2010 does not deserve acceptance. In this connection, reference may be made to the decision of the Division Bench of Bombay High Court in the case of VIVEK BIJENDRA SINGH supra as well as a decision of this Court in the case of SRI.B.H. NARAYANASWAMY, BANGALORE & OTHERS VS. THE KARNATAKA POWER TRANSMISSION CORPORATION LIMITED AND OTHERS supra wherein the learned Single Judge of this Court has held that from close scrutiny of Section 185 of the Act, it is evident that the provisions of the Electricity Act, 1910 have been repealed. The issue is answered accordingly. Issue No.2:
18. 14. Section 185 (1) of the Act reads as under: Save as otherwise provided in this Act, the Indian Electricity Act, 1910 (9 of 1910), the Electricity (Supply) Act, 1948 (54 of 1948) and the Electricity Regulatory Commissions Act, 1998 (14 of 1998) are hereby repealed. Thus, it is evident that by virtue of Section 185 (1) of the Act, the provisions of the Indian Electricity Act, 1910, The Electricity (Supply) Act, 1948 and the Electricity Regulatory Commissions Act, 1998 have been repealed. Whenever, an Act is repealed it must be considered, except as to transactions past and closed as if it had never existed. See KESHAVAN VS. STATE OF BOMBAY AIR1951SC128 STATE OF RAJASTHAN VS. MANGILAL PINDWAL, AIR1996SC2181 Under Section 185(1) of the Act, there is no reference to provisions of Indian Telegraph Act, 1885. The powers under the Indian Telegraph Act, 1885 are exercised with 19 reference to Sections 10 to 18 of the Indian Electricity Act, 1910 read with Section 174 of the Act. In the instant case, the power under Section 174 of the Act has been exercised. Therefore, there is no conflict between Section 174 of the Act and the provisions of Indian Telegraph Act, 1885 and in view of Notification issued under Section 174 of the Act, the respondent No.2, which is a transmission utility is entitled to invoke the powers under the Indian Telegraph Act, 1885. Accordingly, the aforesaid issue is answered. Issue Nos.3 & 4:
15. Before proceeding to deal with the aforesaid issue it is apposite to refer to Section 2 (20), 2 (72), 2(74) & Section 14 of the Act, which are as follows: Section 2 (20) electric line means any line which is used for carrying electricity for any purpose and includes (a) any support for any such line, that is to say, any structure, tower, pole or 20 other thing in, on, by or from which any such line is, or may be, supported, carried or suspended; and (b) any apparatus connected to any such line for the purpose of carrying electricity; Section 2 (72): transmission lines means all high pressure cables and overhead lines (not being an essential part of the distribution system of a licensee) transmitting electricity from a generating station to another generating station or a sub-station, together with any step-up and step-down transformers, switch-gear and other works necessary to and used for the control of such cables or overhead lines, and such buildings or part thereof as may be required to accommodate such transformers, switch-gear and other works. Section 2 (74): transmit means conveyance of electricity by means of transmission lines and the expression 21 transmission shall be construed accordingly. Section 14. Grant of licence- The Appropriate Commission may, on an application made to it under Section 15, grant a licence to any person- to transmit electricity as a transmission licensee; or to distribute electricity as a distribution licensee; or to undertake trading in electricity as an electricity trader, in any area as may be specified in the licence: (a) (b) (c) XXXX Provided further that the General Transmission Utility or the State Transmission Utility shall be deemed to be a transmission licensee under the Act.
16. From conjoint reading of Sections 2 (20), 2 (72), 2(74) of the Act, it is evident that the aforesaid definitions provided under the Act are inclusive in nature and include the work in question. A close scrutiny of 22 Section 14 of the Act discloses that the State Transmission Utility shall be deemed to be a transmission licensee under the Act. Therefore, even assuming that the licence of respondent No.2 has expired, even then, in view of second proviso to Section 14 of the Act, the respondent No.2 admittedly being the State Transmission Utility shall be deemed to be the transmission licensee and therefore, had authority to execute the work in question. Therefore, the aforesaid issue is also answered in affirmative and against the petitioner. So far as issue No.4 is concerned, since, this Court has already come to a conclusion that the work in question is covered under the definition Transmission Lines as provided under the Act, therefore, the question of applicability of Sections 67 & 68 of the Act does not arise. Accordingly, issue No.4 is answered. Issue No.5:
17. It is trite that mere quoting of the provision of law does not invalidate the action in the event it is 23 found that a power therefor exists see UNION OF INDIA VS. KHAZAN SINGH, AIR1992SC1353 STATE OF KARNATAKA VS. KRISHNAJI SRINIVAS KULKARNI (1994) 2 SCC558 M.T.KHAN VS. STATE OF ANDHRA PRADESH, AIR2004SC2934 In the instant case, even though, in the notice issued to the petitioner, reference has been made to Section 67(2) (c) of the Act, yet the fact remains that the power has been exercised under Section 164 of the Act. Therefore, mere wrong mentioning of the provision in the notice issued to the petitioner shall not invalidate the action taken by respondent No.2; it has already been held that the provisions of Section 67 of the Act did not apply to the obtaining factual matrix of the case. Therefore, it was not necessary for respondent No.2 to obtain consent under Section 67 (2) (c) of the Act, 2003. Accordingly, the aforesaid issue is answered. 24 18. In the result, I do not find any merit in the challenge made by the petitioner to the order dated 15.01.2013 passed by the Deputy Commissioner and District Magistrate, Mangalore and the Notification dated 21.12.2010. The challenge to the same fails and his hereby repealed.
19. Admittedly, the land of the petitioner has been utilized for the purposes of laying down the transmission line by respondent No.2. The aforesaid work has been completed. The petitioner has right to hold the property under Article 300 of the Constitution of India. The petitioner cannot be deprives of his right to hold the property except in accordance with law. Under Section 16 of the Indian Telegraph Act, 1885, the petitioner has right to seek compensation. It will be open to the petitioner to claim compensation in case any damage has been caused to his property on account of laying down of transmission lines by respondent 25 No.2. With the aforesaid liberty the writ petitions are disposed of. SS Sd/- JUDGE