Judgment:
R.M. Lodha, J.
1. On 21st September, 1994, the 3rd Additional District Judge, Kolhapur, dismissed the appeal filed by the present appellant Maharashtra State Electricity Board aggrieved by the judgment and decree dated 31st March, 1993 passed by the Joint Civil Judge, Junior Division, Kolhapur whereby the trial Court had decreed the plaintiffs/respondents suit permanently restraining the defendant from taking extra high voltage transmission line (EHVT) through the suit land bearing Gat No. 165 without following the due process of law and further directing the Board to remove the tower No. 45 from the suit land. Upset by the concurrent judgment and decree passed by the two Courts below, the present second appeal has been preferred under Section 100 of the Code of Civil Procedure, 1908.
2. The Maharashtra State Electricity Board for short, 'Board' is a statutory Corporation constituted under the Electricity Supply Act, 1948. By resolution dated 5th July, 1986, the Board framed the scheme for established of 110 KV, EHV sub-stations at Shiroli, Hatkanangale Taluka and at Gokul Shirgaon (MIDC) urea in Kolhapur District in exercise of its powers under Section 28 of the Electricity Supply Act, 1948 (for short the Act of 1948) for transmission of power. The said scheme called 'Gokul Shirgaon Scheme' was notified in the official gazette of Maharashtra Government on 30th October, 1986. The case of the Board is that for the execution of the said Scheme the powers of the Telegraph Authority under Section 10 of the Indian Telegraph Act, 1885 was vested in it as provided under Section 42 of the Act of 1948 and thereby the Board was empowered to enter upon any land, to erect poles and lay wires, cables, etc., for transmission of electricity. Pursuant to the said scheme; the Board chartered route of the said transmission line and accordingly the EHVT line was to pass through the disputed land Gat No.165. It appears that during the course ofconstruction of transmission line under theaforesaid scheme, the officials, agents andservants of the Board entered upon the suit landbearing Gat No. 165 to which the respondentsherein (for short, plaintiffs) objected. As a resultof the objection raised by the plaintiffs, the Boardmade an application before the District Magistrateof the concerned area under Section 16 of theIndian Telegraph Act and on 28th October, 1992the District Magistrate permitted the Board toproceed further in exercise of the powers underthe Telegraph Act and the Act of 1948. Priorthereto, the plaintiffs had already filed a suit forperpetual injunction and the mandatoryinjunction. The said suit after trial has beendecreed as aforesaid on 31st March, 1993 and theappeal preferred by the Board has been dismissedby the first appellate Court on 21st September,1994 giving rise to the present second appeal. Tocomplete the narration of facts, it may be statedthat the order passed by the District Magistrateunder Section 16 of the Telegraph Act came to bechallenged by the plaintiff's before this Court inWrit Petition No. 5302 of 1992 and the DivisionBench of this Court disposed of the writ petitionby observing that the impugned order of theDistrict Magistrate will merge in the final orderto be passed in the appeal arising out of the suitfiled by the plaintiffs against the Board.
3. The concerned Gokul Shirgaon Scheme framed under Section 28 of the Act of 1948 was published in the official gazette and the said notification reads thus :
In pursuance of the Sub-section (1) of Section 28 of the Electricity (Supply) Act, 1948, the Maharashtra State Electricity Board has sanctioned the following extra high voltage transmission schemes and the same are accordingly published as listed out hereunder in terms of Sub-section (3) of Section 28 of the said Act. For the execution of these schemes, the Board shall exercise all the powers of Telegraph Authority vested in its as provided under Section (42) of the said Act.
Sr. NoName of the SchemeEstimated Cost in Rs. LakhsSalient Features
13Scheme Report for-the establishment of 110 KV.EHVsub-station at Shiroli in Hatkanangale Taluka and at GokuI-Shirgaon (MIDC) area in Kolhapur district
486.00To meet the rising demand of MIDC area in Kolhapur district the following new sub-stations are to be established.
(1) To establish a 2.x 42.5 MVA, 110/11 KV and 1 x 12.5 MVA, 1 10/33 KV capacity S/S at Shirali by tapping the existing 110 KV Kolhapur-Watharline(LT/LO) 5.0km in length.
(2) To establish a 110 KV/S/S at Gokul shirgaon MIDC area by laying a 5.0 km of 110 KV, S/O line D/C towards from. Kolhapur II sub-station (2x12 MVA NO/33 KV) (I x 12.5 MVA, 110/11, KV)
4. Two questions which a rise for consideration in the second appeal are :--
(1) Whether in the notification dated 30-10-96 referred to hereinabove whereby the scheme framed under Section 28 was notified, the powers were conferred upon the Board to exercise powers under Chapter III of the Indian Telegraph Authority Act? and;
(2) Whether the route map of laying the transmission line is an Integral part of the scheme framed and sanctioned under Section 28 of the Act of 1948.
5. The Indian Electricity Act, 1910 was enacted to amend the law relating to supply and use of electrical energy and it came into force on 8-3-1910. However, the said Act of 1910 was found wanting in making enough provision for coordination in the development of electricity area and, therefore, the Electricity Supply Act, 1948 was enacted to provide for rationalisation of the production and supply of electricity and generally for ta king measures conducive to electrical department. The statement of object and reasons of the Act of 1948 reads as under :--
'Statement of Objects and Reasons.'
The coordinated development of electricity in India on a regional basis is a matter of increasingly urgent importance for post-war reconstruction and development. The absence of co-ordinated system, in which generation is concentrated in the most efficient units and bulk supply of energy centralised under the direction and control of one authority is one of the factors that impede the healthy and economical growth of electrical development of this country. Besides, it is becoming more and more apparent that if the benefits of electricity are to be extended to semi-urban and rural areas in the most efficient and economical manner consistent with the need of the entire region, the area of development must transcend the geographical limits of a Municipality, a Cantonment Board or a Notified Area Committee, as the case may be. It has therefore, become necessary that the appropriate Government should be vested with the necessary legislative powers to link together under one control electrical development in contiguous areas by the establishment of what is generally known as the 'Grid System'. In the circumstances of this country such system need not necessarily involve inter-connection throughout the length and breadth of a Province; regional co-ordination inclusive of some measure of inter-connection may be all that is needed. As essential prerequisite is, however, the acquisition of necessary legislative power not only to facilitate the establishment of this system in newly licensed areas but also to control the operations of existing licensee's so as to secure fully co-ordinated development.
Government feel that it is not possible to legislate for this purpose within the frame-work of the Indian Electricity Act, 1910, which was conceived for a very different purpose. In their view what is needed is specific legislation, on the broad lines of the Electricity (Supply) Act, 1926 in force in the United Kingdom, which will enable Provincial Governments to set up suitable organization to work out 'Grid System' within the territorial limits of the provinces. Although executive power under the proposed Bill necessarily vest in the Province, two considerations indicate the necessity for Central legislation,--
(i) the need for uniformity in the organisation and development of the 'Grid System', and
(ii) the necessity for the constitution of semi-autonomous bodies like Electricity Boards to administer the 'Grid System' on quasi-commercial lines. Such Boards cannot, however, be set up by Provincial Government, under existing Constitutional Act. as they would be in the nature of trading corporations within the meaning of Entry 33 of the Federal Legislative List.'
It may be observed that the Act of 1910 deals with the supply and use of electrical energy and rights and obligations of the licensee while the Act of 1948 deals with the statutory powers and functions of the Central Electricity Authority, State Electricity Boards and Generating Companies.
6. Chapter V of the Act of 1948 deals with the works and trading procedure of the Boards and the Generating Companies. Section 28 provides preparation and sanction of the schemes while Section 29 makes a provision of submission of schemes for concurrence of the central authority where the scheme estimated involves a capital expenditure exceeding a particular sum which at the relevant time was Rs. 5 crores. Section 30 speaks of the matters which are required to be considered by the Authorities before concurring any scheme submitted so it under Sub-section (1) of Section 29.
7. Sections 28 and 42 of the Act of 1948 which are relevant for the present purposes read thus :
'28. Preparation and sanctioning of schemes.-
(1) For the efficient performance of its duties under this Act, the Board or a Generating Company, as the case may be. may prepare one or more schemes relating to the establishment or acquisition of generating stations, tie-lines, sub-stations or transmission lines as are referred to in Clause (e) ot Section 18 or Clause (c) of Sub-section (1) of Section 18-A, as the case may be.
(2) The Board or, as the case may be, the Generating Company, which has prepared a scheme, may sanction such scheme either generally or in respect of any part, of the area specified in the scheme and where a scheme has been sanctioned in respect of any part of the area, such scheme may subsequently be sanctioned in respect of any other part of that area :
Provided that where the scheme is of the nature referred to in Sub-section (1) of Section 29, the scheme shall not be sanctioned (generally or for part of an area) by the Board or the, Generating Company except with the previous concurrence of the Authority. (2-A) The Board or, as the case may be, the Generating Company shall, as soon as may be after it has sanctioned any scheme which is not of the nature referred to in Section 29, forward the scheme to the Authority and, if required by the Authority so to do, supply to the Authority any information incidental or supplementary to the scheme within such period as may be specified by the Authority.
(3) Every scheme sanctioned under this section shall be published in the Official Gazette and in such local newspapers as the Board or, as the case may be. the Generating Company may consider necessary.'
'42. Powers to Board for placing wires, poles, etc.-
(1) Notwithstanding anything contained in Sections 12 to 16 and 18 and 19 of the Indian Electricity Act, 1910 (9 of 1910), but without prejudice to the requirements of Section 17 of that Act where provision in such behalf is made in a sanctioned scheme, the Board shall have, for the placing of any wires, poles, wall-brackets, stays, apparatus and appliances for the transmission and distribution of electricity, or for the transmission of telegraphic or telephonic communications necessary for the proper coordination of the works of the Board, all the powers which the telegraph authority possession under Part III of the Indian Telegraph Act, 1885 (13 of 1885) with regard to a telegraph established or maintained by the Government or to be so established or maintained :
Provided that where a sanctioned scheme does not make such provision as aforesaid, all the provisions of Sections 12 to 19 of the first-mentioned Act shall apply to the works of the Board.
(2) A Generating Company may, for theplacing of 'wires, poles, wall-brackets, stays,apparatus and appliances for the transmission ofelectricity, o'r for the transmission of telegraphicor telephonic communications necessary for theproper co-ordination of the works of theGenerating Company, exercise all or any of thepowers which the Board may exercise under subsection (1) and subject to the conditions referredto therein.'
8. A close look at Section 28 of the Act of 1948 would show that the Board can prepare and frame schemes relating to the establishment or acquisition of generating stations, tie-lines, substations or transmission lines as are referred to in Clause (e) of Section 18 or Clause (c) of Sub-section (1) of Section 18-A. The scheme so framed by the Board or generating company may be sanctioned either generally or in respect of any part of the area specified in the scheme and if a scheme has been sanctioned in part of the area subsequently the scheme may be sanctioned in respect of any other part of that area. If the scheme exceeds the involvement of expenditure of more than a particular amount then prior to the sanction of the scheme the previous concurrence of the authority is required. The schemes can be framed for generating stations, tie lines, service stations, transmission lines or establishments. Section 28 cannot be said to contemplate that while sanctioning scheme its implementation should also be charted therein. The execution and implementation of the scheme arises after it has been framed and sanctioned in accordance with law. Section 28 speaks of preparation and sanction of schemes for various purposes detailed thereunder. The finalisation of the route map at the time of the framing of the scheme or its sanction is not a condition precedent for a valid and legal scheme under Section 28 and even if route map has not been prepared at the time of preparation of the scheme or not finalised at the time of grant of sanction of scheme, such scheme is not invalidated. Many a time it may not be possible to finalise the route map of the transmission line at the time of finalisation of scheme. Section 28 does not provide the matters to be considered by the Board or generating company as the case may be while sanctioning the scheme. However regarding the schemes involving the capital expenditure exceeding such sum as fixed by the Central Government, concurrence of Central Electricity Authority is required and Section 30 provides the matters to be considered by such Authority before granting concurrence. The matters specified in Section 30 by Central Electricity Authority and the said aspects may also supply relevant consideration for preparation and sanction of scheme by Board as well. Finalisation of route map for transmission line is certainly not one of such matters. In the present case the plaintiffs-owners' grievance is that the EHVT route prepared by the Board did not pass through suit Gat No. 165 but it was proposed through Gat No. 166 and therefore erection of tower No. 45 in the suit land was illegal and unauthorised. It may be observed here that plaintiffs have not sought any declaration in the suit that scheme framed by the Board was illegal. The route map of EHVT line prepared by the Board cannot be said to be integral part of the scheme framed under Section 28 and the said route map only tolled to its execution and implementation part which was open to variation.
9. The question then is whether in the scheme notified under Section 28 of the Act of 1948, the Board was conferred with powers under Chapter III of the Indian Telegraph Act in the notification dated 30-10-1986.
10. The relevant portion of the aforesaid notification reads that for execution of this scheme the Board shall exercise all the powers of Telegraph Authority vested in it as provided under Section 42 of the Act of 1948. The two Courts below have held that this notification does not empower the Board the power under Section 10 of the Indian Telegraph Act since there is no specific mention in the notification empowering the Board to exercise its power as Telegraph Authority under the Indian Telegraph Act.
11. The very fact that the notification states that for execution of this scheme the Board shall exercise all the powers of Telegraph Authority vested in it as provided in Section 42 of the said Act means the power has been given to the Board under Section 42 for exercising the powers of the Telegraph Authority notwithstanding the provisions contained in Sections 12 to 16 and 18 and 19 of the Indian Electricity Act, 1910. There was absolutely no necessity in restating in the notification that the Board shall have all the powers which the Telegraph Authority possesses under the Indian Telegraph Act for placing of any wires, poles, wall-brackets, stays, apparatus and appliances for the transmission and distribution of electricity when the notification states that the Board shall exercise all the powers of Telegraph Authority vested in it as provided under Section 42 of the said Act. The notification, therefore, clearly empowers the Board, its officers, servants and agents to exercise all the powers of Telegraph Authority under the Indian Telegraph Act for execution of the scheme which has been sanctioned and, therefore, the provisions of Sections 12 to 19 of the Indian Electricity Act would not apply. The Courts below, therefore, seriously erred in holding that in the notification published under Section 28(3), the Board has not been empowered the powers of Telegraph Authority under the Indian Telegraph Act and that the provisions of Section 12 to 19 of the Indian Electricity Act were required to be followed.
12. In Bharat Plywood and Timber Products Private Ltd. v. Kerala State Electricity Board Trivandrum, : AIR1972Ker47 , the Kerala High Court was considering the legality and constitutionality of Section 51 of the Indian Electricity Act which is quite close and similar to Section 42 of the Act of 1948 and the Kerala High Court observed thus at page 55 :
'We quite realise that Section 10 is contained in an enactment which came into force on the 1st October, 1885, at a time when even the placing of telegraph lines was a phenomenon and that the act concerned itself only with the placing of telegraph lines which in scope and extent and in dimensions are entirely different from the laying of electric supply lines in a modern city or a state where one can expect, and one can see, a net work of lines being drawn across country, over the properties, and near buildings and other structures. The exercise of the powers under Section 10 of the Telegraph Act, controlled by Section 16 thereof, may be quite inadequate for the supply and distribution of electricity in modern times. In fact we feel that entirely different provisions which will provide a more flexible and speedy procedure have become indispensable. But the legislature in enacting Section 51 of the Electricity Act has chosen to confer on the public officer, the licensee or other person chosen by the State Government only the powers of a telegraph authority under the Telegraph Act.'
13. There can be no doubt that laying of electric supply lines is of utmost importance, need of hour and life and blood of progress and development and the said process cannot be allowed to be blocked on technical grounds. In the present case, the notification dated 30-10-1986 means that the Board exercises the powers of Telegraph Authority in execution of the scheme, and, therefore, there is no impediment for the Board and its officials to exercise the powers of the Telegraph Authority possessed under Part III of Indian Telegraph Act and do all such acts necessary for execution of the Scheme.
14. In Rajak v. National Thermal Power Corporation Ltd.. Indore, : AIR1988MP172 , the Madhya Pradesh High Court held that once the power has been conferred under Section 42 of the Act read with Part III of the Indian Telegraph Act there can be no valid objection to the implementation of the sanctioned scheme on the principles of natural justice or on the ground of unauthorised user of the petitioner's land.
15. Mr. Sawant, the learned counsel for the respondents referred to a decision of the Orissa High Court in the Orissa State Electricity Board v. Pyari Mohan Patnaik : AIR1978Ori190 and relied on the following observations in the said judgment at page 192.
'The proviso to Section 42 specifically states that where a sanctioned scheme does not make any provision as provided in the first paragraph to that section, all the provisions of Sections 12 to 19 of the I. E. Act shall apply to the works of the Board. From that provision it is absolutely clear that so long provision for placing, maintaining or taking any wires, poles and appliances for the transmission and distribution of electricity, as mentioned in para. 1 of Section 42, is not made in that behalf, the powers under Part III of the I. E. Act will not be available and the provisions of Sections 12 to 19 of the I. E. Act shall apply to the works of the Board. Admittedly, the complained of electric transmission line over the suit land belonging to the plaintiffs was not in accordance with any sanctioned plan. In the copy of the memorandum attached to the copy, of the resolution it is admitted that the complained of alteration was done by the Superintending Engineer, Electrical Circle, Bhubaneshwar and the Board had not accorded any sanction for the said alteration. So the protection under Section 42 of the E. S. Act was not available to the defendants-appellants. There is nothing in Section 42 of the E. S. Act or in any other relevant law by which it can be said that by the said ex post facto sanction the execution of the said work done in 1968-69 was retrospectively legalised and the said work would therefore be considered as if it was done under a sanctioned scheme. That being so, as per the proviso to Section 42, the provisions of Sections 12 to 19 of the I. E. Act would apply to the complained of transmission line. So, the Board was not at all authorised to take the said transmission line on and over the plaintiffs' suit land, especially in view of their admitted objection and still opposition to that effect, without following the relevant provisions of Sections 12 to 19 of the I. E. Act.
Moreover, the provisions of Section 10 of the I. E. Act cannot be invoked by the appellants as admittedly the construction of the transmission line on and over the suit land was resisted and obstructed by the plaintiffs, and the order of the District Magistrate as contemplated under Section 16(1) of the said Act had not been obtained.
On the above view of the matter and the facts of the case the provisions for payment of compensation under Section 12(3) of the I. E. Act and Section 10(b) of the I. T. Act for the unauthorised construction of the transmission line on and over the suit land cannot now be invoked.'
16. The judgment of the Orissa High Court has no application in the facts and circumstances of the present case since in the present case the Board has been in the sanctioned scheme empowered to proceed under Section 42 of the Act of 1948. Meaning thereby Board has been given the powers of telegraph authority under Chapter III of Indian Telegraph Act and provisions of Sections 12 to 19 of the Indian Electricity Act were not to apply.
17. The foregoing discussion answers the aforesaid two questions; first in the affirmative and second in the negative. The question whether the alteration of survey number from Gat No. 166 to Gat No. 165 is a minor alteration within the meaning of Section 32 of the Act of 1948, does not survive in view of my finding that route map is not the part and parcel of the sanctioned scheme. It is open to the Board, its officials, servants and workmen in execution of the scheme to carry out the work of transmission lines on Gat Survey No. 165. It may be observed that the concerned District Magistrate granted permission to the Board for carrying out the work of transmission line on disputed Gat No. 165 in exercise of power under Section 16 of the Indian Telegraph Act and this Court on challenge being made to the said order observed that the order of the District Magistrate will merge in the order to be passed in the appeal. It would not be out of place to state that huge money has been spent by the Board in implementation of the said scheme and substantial work has already been carried out. Most of the towers for this EHVT line have been erected and there is evidence led by the Board that it is not possible to change the position of tower No. 45 erected in the disputed land. The scheme for this EHVT line shall be frustrated which has almost been completed if the decree in favour of plaintiff is allowed to stand. Public interest would be seriously jeopardised.
18. In this view of the matter, the judgment and decree passed by the Courts below cannot be sustained and the suit of the plaintiffs is liable to be dismissed. The order of the District Magistrate shall stand merged in the present judgment. Consequently, the second appeal is allowed. The judgment and decree passed by the 3rd Addl. District Judge, Kolhapur on 21-9-94 and the judgment and decree passed by the Jt. Civil Judge, Jr. Div. Kolhapur on 31-3-1993 are set aside. The plaintiffs suit accordingly stands dismissed with no order as to costs.
19. Mr. Sawant, the learned counsel for the respondents prays for stay of the present order for a period of four weeks. Order accordingly.