Judgment:
ORDER
G. Rohini, J.
1. The petitioners herein claim to be the owners and possessors of different extents of land situated in Rayanapadu village, Vijayawada Rural Mandal and Guntupalli village, Ibrahimpatnam Mandal of Krishna District.
2. This writ petition is filed seeking a declaration that the action of the respondents in proposing to erect poles and lay two Nos. 400 KV double circuit lines through the lands of the petitioners as arbitrary, illegal and in violation of the provisions of the Electricity Act, 2003.
3. It is pleaded by the petitioners that originally a 400 KV line under Vijayawada Power Transmission Scheme was sought to be laid in the property belonging to the Railways. However, subsequently, the proposal was changed and the respondents wanted to form the line through the lands belonging to certain ryots. Since the said ryots brought influence from various levels, the stream of line was again changed and now the respondents intended to form the lines through the lands belonging to the petitioners. Pursuant thereto, on 16-01-2009, the officials of the respondents came to the land of the petitioners and put up flags stating that the work would be started in fourth week of January, 2009. It is alleged by the petitioners that the officials of the respondents entered into their lands without obtaining the consent of the petitioners and without following the process known to law. Though the petitioners raised protest, ignoring the same the respondents proceeded further to erect the poles in the lands belonging to the petitioners.
4. Hence, this writ petition assailing the action of the respondents contenting inter alia that the respondents are bound to initiate appropriate proceedings for acquisition of the lands or the consent of the owners ought to have been obtained by private negotiations before entering into their property. While alleging that no scheme is framed and published as required under the law before proceeding to lay the electric lines in question, it is contended that the impugned action is liable to be declared as arbitrary and illegal on that ground also.
5. In the counter-affidavit filed by the 1si respondent it is stated that the Government issued G.O.Ms. No. 115, dated 07-10-2003 authorizing the A.P. Transco to place the electricity lines for the transmission of the electricity or for the purpose of telephonic or telegraphic communications under the provisions of the Indian Telegraph Act, 1885. In view of the said powers conferred on the Transmission Corporation, a notification was issued and the same was published in the A.P. Gazette dated 17-07-2007 notifying the transmission scheme for two Nos. 400 KV double circuit lines for loop-in and loop-out of Nunna-Srisailam/Narasaraopet, 400 KV double circuit lines to VTPS(Stage-IV). The Transco also envisaged the erection of 400 KV LILO of 400 KV Srisailam-Nunna DC Line to VTPS-IV stage at Vijayawada to evacuate 500 MV power generated from VTPS-IV stage. This is essential to strengthen the 400 KV network to improve and stabilize the voltage profile of the power system network. It is further stated that laying of the electric lines is with a view to augment the power supply and the total cost of the project is Pr.19 Crores and if the line is not laid before 1st March, the department would be suffering a loss of Rs. 12 Crores per day as the VTPS would be producing 500 MW power and the same has to be evacuated by March, 2009. So far as the title claimed by the petitioners in respect of the lands in question and the allegation that the respondents have illegally entered into possession of their land, it is stated that the respondents have followed the procedure contemplated under the provisions of the Electricity Act, 2003 and a Gazette notification was issued on 17-07-2007. Since no objections were received pursuant to the said Gazette notification, the Transco decided to proceed ahead with the scheme. Though the plea that initially it was intended by the respondents to lay the line in the property belonging to the Railways is not disputed, it is explained that since the same requires lot of time to get necessary clearances and due to certain technical reasons the proposal has been changed and it is decided to lay the line adjacent to the existing line. It is explained that the existing line was erected more than ten years ago and by laying a new parallel line the farmers would be put to minimum inconvenience. Thus it is pleaded that the decision to lay the present line is only in the best interest of the farmers and not for any other extraneous reasons as alleged by the petitioners. As a matter of fact series of meetings were held in the office of the Sub-Collector and most of the persons in whose lands the lines are now proposed to be laid attended the said meetings and gave their consent for laying the line. Some of the petitioners herein also attended the meeting and agreed for laying the lines through their lands. It is also explained that marking for commencement of construction of the lines in question was taken on 29-12-2008 after serving notices to all the concerned farmers through registered post. A notice was also pasted at Panchayat Office for intimation to the farmers. Thus it is contended that the action taken by the respondents is strictly in accordance with the provisions of the Electricity Act, 2003 and the acquisition of the land as contended by the petitioners is not provided under the law. It is further explained that since the existing line of 220 KV would be dismantled after the new line is laid, no damage would be caused to the petitioners as alleged.
6. An additional counter-affidavit has also been filed on behalf of the respondents stating that as the total estimated cost of the scheme was decreased from Rs. 621.45 Crores to 428.06 Crores, in the place of the transmission scheme published earlier on 17.7.2007, a fresh scheme was made and published in the Gazette dated 22.07.2008 and the same was also published on 23.07.2008 in Hindu and Eenadu dailies.
7. I have heard the learned Counsel for both the parties and perused the material on record.
8. The Electricity Act, 2003 (Central Act 36 of 2003) has been enacted consolidating the laws relating to generation, transmission, distribution, trading and use of electricity and thereby repealing the Indian Electricity Act, 1910, Electricity (Supply) Act, 1948 and Electricity Regulatory Commissions Act, 1998. The said Act came into force w.e.f. 10.06.2003.
9. The material on record shows that in exercise of the powers conferred under Section 164 of the Electricity Act, 2003, the Government of A.P. issued G.O.Ms. No. 115, Energy PR.III, dated 07-10-2003 thereby conferring upon the A.P. Transco the powers for placing of 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 coordination of works that a telegraph authority possesses under the provisions of the Indian Telegraph Act, 1885.
10. In exercise of the said powers conferred under G.O.Ms. No. 115, dated 7.10.2003, the A.P. Transco issued a notification dated 11.6.2007 notifying its proposal to erect transmission lines and substations and associated bay extensions under Vijayawada Power Transmission Scheme with a total estimated cost of Rs. 621.45 Crores proposed to be completed during the year 2009-2010. The said Transmission Scheme included erection of two Nos. 400 KV double circuit lines for loop in and loop out of Nunna - Srisailam/Narasaraopet 400 KV double circuit lines to Vijayawada Thermal Power Station (VTPS)-IV for the evacuation of power from VTPS-IV -2x5 kms. The said notification was published in the A.P. Gazette dated 17-07-2007 inviting objections if any from any person interested/aggrieved to be submitted to the Chief Engineer, 400 KV, A.P. Transco within two months from the date of publication. Subsequently, in view of decrease in the cost of the scheme a fresh notification dated 14.7.2008 was issued in the place of the scheme dated 17.07.2007 proposed earlier. The said notification was published in A.P. Gazette dated 22.7.2008 as well as in two dailies namely the Hindu and Eenadu dated 23.7.2008. As per the said notification, the scheme was proposed for completion during the year 2010 - 2011 and fresh objections were invited within two months from the date of publication of the said notification.
11. It is the specific case of the respondents that the A.P. Transco has not received any objections either from the petitioners herein or from any other person in response to the notification dated 22.7.2008 and therefore as per the powers conferred on A.P. Transco under G.O.Ms. No. 115, dated 7.10.2003, the respondents are entitled to exercise all the powers possessed by the telegraph authority under the Indian Telegraph Act, 1885 for the purpose of placing the transmission lines as published in the notification dated 22.7.2008 by entering the lands belonging to the petitioners without acquiring the same.
12. However, the learned Counsel for the petitioners contended that the notification dated 22.7.2008 is not a sanctioned scheme as required under Section 42 of the Electricity (Supply) Act, 1948. That apart, since the said notification is vague and lacking material particulars relating to the proposed route for laying the transmission lines so as to enable the aggrieved persons to raise their objections, it cannot be said that it is in compliance with Section 29(2) of the Electricity (Supply) Act, 1948. Thus, it is contended that there is no valid sanctioned scheme and consequently the respondents cannot proceed with the erection of the transmission poles and lines without obtaining the consent of the owners/occupier as required under Section 12 of the Indian Electricity Act, 1910.
13. As noticed above, prior to the enactment of the Electricity Act, 2003, the Indian Electricity Act, 1910, and the Electricity (Supply) Act, 1948 were in force and there were various provisions governing erection of transmission lines or other connected work through, in or upon or under the private lands.
14. As per Section 12 of the Indian Electricity Act, 1910, the consent of the local authority or of the concerned owner or occupier is necessary to enable the licensee to lay down or place any electric supply line or other work in, through or against any building or on, over or under any land not dedicated to public use whereon any electric supply line or work has not already been lawfully laid down by such licensee. Under Section 51 of the Electricity Act, 1910, it was permissible for the Government to confer upon any public officer, Transmission Utility, Transmission Licensee or any other person engaged in the business of transmission or supplying energy to the public, any of the powers which the telegraph authorities possess under the Indian Telegraph Act, 1885 for the placing of electric supply lines.
15. That apart, Section 28 of the Electricity (Supply) Act, 1948, provided for preparation of a sanctioned scheme relating to the laying of transmission lines by a generating company and under Section 29 every such scheme estimated to involve a capital expenditure exceeding such sum as may be fixed by Central Government shall be submitted to the Central Electricity Authority constituted under the said Act for its concurrence. That apart, Sub-section (2) of Section 29 mandated that the generating company shall cause such scheme to be published in the Official Gazette of the State and in local news papers granting not less than two months time to the persons interested to make representations on such scheme. Section 42 of the Electricity (Supply) Act, 1948, further provided that where a provision is made in a sanctioned scheme for placing electric supply lines, notwithstanding anything contained in Sections 12 - 16, 18 and 19 of the Indian Electricity Act, 1910, the State Electricity Board shall have all the powers which the telegraph authority possesses under Part-III of the Indian Telegraph Act, 1885 with regard to a telegraph established by the Government for placing of any wires, poles and etc., for the transmission of electricity. The proviso to Section 42(1) further made it clear that where a sanctioned scheme does not make a provision as aforesaid, all the provisions of Sections 12 - 19 of the Indian Electricity Act, 1910 shall apply.
16. A Full Bench of High Court of Kerala in Bharat Plywood and Timber Products Private Ltd. v. Kerala State Electricity Board, Trivandrum and Ors. : AIR1972Ker47 having interpreted the scope and object of Sections 12 and 51 of Indian Electricity Act, 1910 held that a licensee who has not been empowered by the State Government under Section 51 of the Indian Electricity Act, 1910 cannot place any electric supply lines in or over any property without the consent of the owner or occupier thereof. However, a person authorised under Section 51 can do so without the consent of the owner or occupier. The Full Bench further observed as under:
Though Section 12 enumerates various acts that can be done by a licensee for the purpose of laying down or placing electric supply-lines, such acts can be done only with the consent of the local authority or of the owner or occupier concerned (Section 12(2)). This is no power at all for. Without the consent nothing can be done. What can be done, therefore, under Section 12 cannot be compared with the exercise of powers under Section 10 of the Telegraph Act by a person empowered to do so under Section 51 of the Electricity Act.
17. So far as the scope of Section 42 of the Electricity (Supply) Act, 1948 is concerned, it was held by this Court in Bhaskara Housing (P) Ltd., Hyderabad v. APSEB, Hyderabad : 1998(6)ALD781 , as under:
A cumulative reading of provisions of Sub-section (1) of Section 42 of the Electricity (Supply) Act, 1948 with that of proviso make it apparently clear that if the sanctioned scheme provides for any of the things contemplated under Sections 12 - 16, 18 and 19 of the Indian Electricity Act, 1910, the officers of the Board can exercise similar powers conferred upon the authorities of the Telegraph Department under Part-Ill of the Indian Telegraph Act, 1885. In the instant case, since the sanctioned scheme provides for laying of lines and construction of towers, it should be held that the Board and its officers have the power to invoke the provisions of Part-Ill of the Indian Telegraph Act, 1885 and, therefore, prior consent is not necessary as required under Section 12 of the Indian Electricity Act, 1910.
18.An identical question was again considered in B. Krishna Mandadi v. Power Grid Corporation of India Limited, Hyderabad 2002 (1) L.S. 332 and it was held as under:
A generating company engaged in generation, transmission and supply of electricity is empowered under the provisions of Electricity (Supply) Act, 1948 to lay electric poles, construct transmission towers on any private land without giving any notice and without causing damage to the property provided there is a scheme published as required under Section 28. Even while erecting transmission lines, if any damage is caused, by reason of Section 10 of the Telegraph Act read with Section 42(1) and (2) of the Electricity (Supply) Act, 1948, a generating company has to pay compensation for the damage sustained by the owners of the land or owners of the crops.
19. From the ratio laid down in the above decisions, it is clear that prior to the enactment of Electricity Act, 2003, consent of the owner or occupier was necessary where there was no authorization under Section 51 of the Indian Electricity Act, 1910. Similarly, where a sanctioned scheme is published as required under Section 28 read with Section 42 of the Electricity (Supply) Act, 1948, transmission towers or lines can be laid on any private land without giving any notice and without causing damage to the property. However, if any damage is caused, compensation shall be paid for the damage sustained as provided under Section 10 of the Indian Telegraph Act, 1885.
20. Both the Indian Electricity Act, 1910 and the Electricity (Supply) Act, 1948 stood repealed under the Electricity Act, 2003 which came into force with effect from 10.06.2003. Under the new Act i.e., Electricity Act, 2003 though there is no provision with regard to preparation and sanctioning of any scheme relating to establishment of generating stations, sub-stations or transmission lines as required under Section 28 of the repealed Electricity (Supply) Act, 1948, provisions similar to Sections 12 and 51 of the Indian Electricity Act, 1910 have been incorporated under Section 67 and Section 164 respectively.
21. The said Sections 67 and 164 of the Electricity Act, 2003 may be extracted hereunder:
Section 67 Provision as to opening up of streets, railways, etc.
(1) A licensee may, from time-to-time but subject always to the terms and conditions of his licence, within his area of supply or transmission or when permitted by the terms of his licence to lay down or place electric supply lines without the area of supply, without that area carry out works such as-
(a) to open and break up the soil and pavement of any street, railway or tram-way;
(b) to open and break up any sewer, drain or tunnel in or under any street, railway or tramway;
(c) to alter the position of any line or works or pipes, other than a main sewer pipe;
(d) to lay down and place electric lines, electrical plant and other works;
(e) to repair, alter or remove the same;
(f) to do all other acts necessary for transmission or supply of electricity.
(2) The Appropriate Government may, by rules made by it in this behalf, specify,-
(a) the cases and circumstances in which the consent in writing of the appropriate Government, local authority owner or occupier, as the case may be, shall be required for carrying out works;
(b) the authority which may grant permission in the circumstances where the owner or occupier objects to the carrying out of works;
(c) the nature and period of notice to be given by the licensee before carrying out works;
(d) the procedure and manner of consideration of objections and suggestions received in accordance with the notice referred to in Clause (c);
(e) the determination and payment of compensation or rent to the persons affected by works under this section;
(f) the repairs and works to be carried out when emergency exists;
(g) the right of the owner or occupier to carry out certain works under this Section and the payment of expenses therefor;
(h) the procedure for carrying out other works near sewers, pipes or other electric lines or works;
(i) the procedure for alteration of the position of pipes, electric lines, electrical plant, telegraph lines, sewer lines, tunnels, drains, etc.;
(j) the procedure for fencing, guarding, lighting and other safety measures relating to works on streets, railways, tramways, sewers, drains or tunnels and immediate reinstatement thereof;
(k) the avoidance of public nuisance, environmental damage and unnecessary damage to the public and private property by such works;
(l) the procedure for undertaking works which are not reparable by the Appropriate Government, licensee or local authority;
(m) the manner of deposit of amount required for restoration of any railways, tramways, waterways, etc;
(n) the manner of restoration of property affected by such works and maintenance thereof;
(o) the procedure for deposit of compensation payable by the licensee and furnishing of security; and
(p) such other matters as are incidental or consequential to the construction and maintenance of works under this section.
(3) A licensee shall, in exercise of any of the powers conferred by or under this Section and the rules made thereunder, cause as little damage, detriment and inconvenience as may be, and shall make full compensation for any damage, detriment or inconvenience caused by him or by any one employed by him.
(4) Where any difference or dispute [including amount of compensation under Sub-section (3) arises under this section, the matter shall be determined by the Appropriate Commission.
(5) The Appropriate Commission, while determining any difference of dispute arising under this Section in addition to any compensation under Sub-section (3), may impose a penalty not exceeding the amount of compensation payable under that sub-section.
Section 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, subject 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.
21-A. As could be seen, though Section 67(1) of the Electricity Act, 2003 is identical to Section 12(1) of the Indian Electricity Act, 1910, Section 57(2) of the Electricity Act, 2003 varies from Section 12(2) of the repealed Indian Electricity Act, 1910. Section 67(2) does not say that the consent of the owner or occupier is mandatory but the matters where the property of other persons is affected by the works of the licensee have been left to be provided by the appropriate Government by way of Rules in exercise or its Rule making power.
22. Admittedly no such Rules have been made till today. What shall be done till such Rules are made is provided under Section 185 of the Electricity Act, 2003 and the same may be extracted hereunder:
Section 185 Repeal and saving
(1) 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.
(2) Notwithstanding such repeal,-
(a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission, authorisation or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act;
(b) the provisions contained in Sections 12 - 18 of the Indian Electricity Act, 1910 (9 of 1910) and rules made the reunder shall have effect until the rules under Sections 67 - 69 of this Act are made;
(emphasis supplied)
(c) the Indian Electricity Rules, 1956 made under Section 37 of the Indian Electricity Act, 1910 (9 of 1910) as it stood before such repeal shall continue to be in force till the ragulations under Section 53 of this Act are made.
(d) all rules made under Sub-section (1) of Section 69 of the Electricity (Supply) Act, 1948 (54 of 1948) shall continue to have effect until such rules are rescinded or modified, as the case may be;
(e) all directives issued, before the commencement of this Act, by a State Government under the enactments specified in the Schedule shall continue to apply for the period for which such directions were issued by the State Government.
(3) The provisions of the enactments specified in the Schedule, not inconsistent with the provisions of this Act, shall apply to the States in which such enactments are applicable.
(4) The Central Government may, as and when considered necessary, by notification, amend the Schedule.
(5) Save as otherwise Provided in Sub-section (2), the mention of particular matters in that section, shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897 (10 of 1897), with regard to the effect of repeals.
23. In view of Section 185(2)(b) of the Electricity Act, 2003, it is not in dispute that the provisions contained in Sections 12 - 18 of the Indian Electricity Act, 1910, still govern the field since as on today no rules are made under Section 67(2) of the Electricity Act, 2003.
24. Therefore, the legality or otherwise of the impugned action of the respondents in proposing to erect the poles for two Nos. 400 KV Double Circuit Lines through the lands of the petitioners has to be examined in the light of Sections 67 of the Electricity Act, 2003 read with Sections 12 - 18 of the Indian Electricity Act, 1910 and Section 164 of the Electricity Act, 2003.
25. Out of Section 12 - 18 of Indian Electricity Act, 1910, reference to Section 12 is sufficient for the purpose of the present case and the same runs as under:
Section 12 Provisions as to the opening and breaking up of streets, railways and tramways-
(1) Any licensee may, from time to time but subject always to the terms and conditions of his licence, within the area of supply, or, when permitted by the terms of his licence to lay down or place electric supply-line without the area of supply, without that area:
(a) open and break up the soil and pavement of any street, railway or tramway;
(b) open and break up any sewer, drain or tunnel in or under any street, railway or tramway;
(c) lay down and place electric supply-lines and other works;
(d) repair, alter or remove the same; and
(e) do all other acts necessary for the due supply of energy.
(2) Nothing contained in Sub-section (1) shall be deemed to authorise or empower a licensee, without the consent of the local authority or of the owner or occupier concerned, as the case may be, to lay down or place any electric supply-line, or other work in, through or against any building, or on, over or under any land not dedicated to public use whereon, wherever or whereunder any electric supply-line or work has not already been lawfully laid down or placed by such licensee:
Provided that any support of an overhead line or any stay or strut required for the sole purpose of securing in position any support of an overhead line may be fixed on any building or land or, having been so fixed, may be altered, notwithstanding the objection of owner or occupier of such building or land, if the District Magistrate or, in a Presidency-town the Commissioner of Police by order in writing so directs:
Provided, also, that, if at any time the owner or occupier of any building or land on which any such support, stay or strut has been fixed shows sufficient cause, the District Magistrate or in a Presidency town the Commissioner of Police may by order in writing direct any such support, stay or strut to be removed or altered.
(3) When making an order under Sub-section (2), the District Magistrate or the Commissioner of Police, as the case may be, shall fix 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.
(4) Every order made by a District Magistrate or a Commissioner of Police under Sub-section (2) shall be subject to revision by the State Government.
(5) Nothing contained in Sub-section (1) shall be deemed to authorise or empower any licensee to open or break up any street not repairable by the Central Government or the State Government or a local authority, or any railway or tramway, except such streets, railways or tramways (if any), or such parts thereof, as he is specially authorised to break up by his license, without the written consent of the person by whom the street is repairable or of the person for the time being entitled to work the railway or tramway, unless with the written consent of the State Government;
Provided that the State Government shall not give any such consent as aforesaid, until the licensee has given notice by advertisement or otherwise as the State Government may direct, and within such period as the State Government may fix in this behalf, to the person above referred to, and until all representations or objections received in accordance with the notice have been considered by the State Government.
(6) In this section, 'occupier' of any building or land means a person in lawful occupation of that building or land.
26. A reading of Section 12(2) of the Indian Electricity Act, 1910 makes it clear that the acts specified under Section 12(1) cannot be carried out without the consent of the concerned owner or occupier. However, the question that arises for consideration is whether Section 12 of the Indian Electricity Act, 1910 is applicable to the case on hand.
27. On an analysis of Section 67 and Section 164 of the Electricity Act, 2003, it is apparent that whenever an order is passed by the appropriate Government in exercise of the powers under Section 164 of the Electricity Act, 2003 for the placing of electric lines for the transmission of electricity, conferring upon any public officer, licensee or any other person engaged in the business of supplying electricity any of the powers which the telegraph authority possesses under the Indian Telegraph Act, 1885 with respect to the placing of telegraphic lines and posts for the purposes of a telegraph established by the Government, such public officer, licensee or any other person engaged in the business of supplying electricity stands in the same position as regards the exercise of power as the telegraph authority under the Indian Telegraph Act, 1885. However, in the absence of such an order under Section 164 of the Electricity Act, 2003, if a licensee i.e., a person who has been granted a licence to transmit electricity or to distribute electricity under the Act, proposes to place electric lines, electric plant or other works necessary for transmission or supply of electricity, Section 67 of the Electricity Act, 2003 comes into operation and consequently it is mandatory to obtain the consent of the concerned owner or occupier as required under Section 12(2) of the Indian Electricity Act, 1910.
28. In the instant case, Section 164 of the Electricity Act, 2003 has admittedly been invoked and in exercise of the powers conferred thereunder the Government of A.P. conferred on the A.P. Transco the powers which the telegraph authority possess under the Indian Telegraph Act, 1885. Consequently, Section 12 of the Indian Electricity Act, 1910 has no application and the A.P. Transco, for the purpose of placing the electric supply lines in the private lands, is competent to exercise all the powers possessed by the telegraph authority under the Indian Telegraph Act, 1885.
29. 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 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 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 (c), shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers.
30. 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 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.
31. Thus it is clear that the powers under Section 10 of the Indian Telegraph Act, 1885 can be exercised without acquiring the land in question, however, the only right that can be exercised is the right of user in the property and for the purposes mentioned in that Section.
32. 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.
33. 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 14.07.2008 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 anyone.
34. 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.
35. With the above observation, the Writ Petition is disposed of. No costs.