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2009 Supreme(Kar) 851

High Court of Karnataka
THE HONOURABLE MR. JUSTICE S. ABDUL NAZEER
B.H. Narayanaswamy, Bangalore & Others
Versus
The Karnataka Power Transmission Corporation Limited, Represented. By its Managing Director & Others
Writ Petition No. 367 of 2007 C/W W.P. No.10504 of 2007 (GM-KEB)
Decided On : 02-12-2009

Advocates Appeared:
For the Petitioners:S. Vijayashankar, Sr. Adv. for Sri. A. Nagarajappa, Advocate.
For the Respondent:N.K. Gupta, Advocate, N.D. Jayadevappa, HCGP.

Headnote:INDIAN ELECTRICITY ACT, 2003 - Section 164: [S.Abdul Nazeer,J] Exercise of powers of Telegraph Authority in certain cases - Notification issued by the competent authority conferring power of the telegraph authority upon the KPTCL for placing of electric supply lines, appliances and apparatus for transmission of energy - Placing of electric supply lines or electric poles for the transmission of electricity on or over the private lands - Implementation of scheme and exercise of power by the KPTCL as per the provisions of 1885 Act - Application filed by the KPTCL before the District Magistrate under Section 16(1) of the Indian Telegraph Act, 1885 for removal of the obstruction - Impugned order passed by the District Magistrate permitting the KPTCL to remove obstruction - Challenge as to -Held, A Notification has been issued under Section 164 of ’2003 Act’ by the competent authority dated 24.3.2006 conferring power of the Telegraph Authority upon the KPTCL for placing of electric supply lines, appliances and apparatus for transmission of energy. In the light of the Notification, it is open to the KPTCL to exercise the powers which the Telegraphic Authority possesses under Sections 10 to 19 and 19-A of ’1885 Act’ and to enter upon the lands of private citizens for the purpose of placing of electric supply lines, appliances and apparatus for the transmission of energy without the consent of the owner of such lands. Further, A perusal of the Notification shows that a reference has been made to Sections 28 and 29(2) of the 1948 Act. However, it has been clarified in the said Notification itself that in order to implement the scheme, the KPTCL has been empowered to exercise power contained in the 1885 Act. It is well established that non-mentioning or wrong mentioning of a provision of law does not invalidate an order in the event it is found that a power therefore exists. On facts held, In the instant case, a Notification has been issued on 24.3.2006 under Section 164 of the 2003 Act conferring power on the Board the powers which the Telegraphic Authority possesses under Sections 10 to 9 and 19-A of the 1885 Act with respect to placing of telegraph lines and poles for the purpose of telegraph established of maintained by the Government. Therefore, it cannot be said that the Notification has been issued without authority of law. Order passed by the District Magistrate is justified.

Judgment :-

Though these matters are posted in the orders list, by consent of the learned Counsel for the parties, it is taken up for final hearing.

2. Petitioner Nos.1 and 2 and respondent Nos.1 and 2 are common in both the writ petitions. The third petitioner in W.P.No.367/2007 has not been made a party in W.P.No.10504/2007. The Deputy Commissioner/District Magistrate, Bangalore District has been made the third respondent in W.P.No.10504/2007. The basic facts leading to filing of these writ petitions are common. Most of the documents produced in both the writ petitions are also common. Therefore, both the writ petitions are clubbed together, heard and disposed of by this common order. For the sake of convenience, the documents marked in W.P.No.10504/2007 are referred to in the course of this order.

3. The first petitioner is the owner of land bearing Sy.No.91 measuring 2 acre 30 guntas, Sy.No.109/3B measuring 20 guntas, Sy.No.91 measuring 1 acre 4 guntas of Kumbalagodu village, Kengeri Hobli, Bangalore South Taluk. Petitioner No.2 is the owner of land bearing Sy.No.110/3 measuring 10 guntas, Sy.No.110/6 measuring 24 guntas and Sy.No.110/4 measuring 0.09 guntas, Sy.No.110/5 measuring 1 acre 10 guntas of Kumbalagodu village, Kengeri Hobli, Bangalore South Taluk. Petitioner No.3 in W.P.No.367/2007 is the owner of Sy.No.110/2 measuring 31 guntas of Kumbalagodu village, Kengeri Hobli, Bangalore South Taluk.

4. The Karnataka Power Transmission Corporation Limited (for short ‘KPTCL’), the first respondent herein has proposed a scheme to establish 66/11 KV sub-station at Kengeri Satellite Town, Bangalore District for construction of 66 KV single circuit transmission line from the existing 66/11 KV sub-station, Kumbalagodu to the proposed 66/11 KV sub-station at Kengeri Satellite Town to an extent of 10.911 kms, and also a terminal bay at Kumbalagodu sub-Station. The said scheme dated 19.6.2006 (Annexure ‘A’) has been published in the Karnataka Gazette dated 17.8.2006 for the information of the public and also invited objections to be submitted to the respondents within 15 days from the date of issuance of the said notification. The said scheme was published in the daily newspaper such as ‘Vijaya Karnataka’ dated 24.6.2006 and ‘Deccan Herald’ dated 25.6.2006 for the information of the public notifying the salient features and to give uninterrupted power supply and intimating that the proposed transmission line passes through Kumbalagodu Industrial area, Tagachikuppe, Kamblipura, Kumbalagodu, Gerupalya, Beemanakuppe, Challghatta, Romonahalli, Komaghatta and Kengeri Satellite Town, etc. The estimated cost of the scheme is 796.23 lakhs. The details of alignment of towers and line of transmission through various lands including that of the

.petitioners and others is shown in the sketch as per Annexure ‘D’. The location of proposed tower Nos.28, 29, 30, 33 and 34 are in the lands bearing Sy.No.112/A. Sy.No.110/6, Sy.Nos.108 and 110/6, Sy.No.160/2 and Sy.No.86 of Kumbalagodu village respectively. The location of proposed tower No.39 is on the northern side of Chikklur road and location of proposed tower No.34 is in the southern side of Chikklur road.

5. In W.P.No.367/2007, this Court passed an interim order on 22.1.2007 permitting the KPTCL to approach the District Magistrate under Section 16(1) of the Indian Telegraph Act, 1885, for removal of the obstruction in accordance with the decision of the Division Bench of this Court in Thirthesh A.S. Vs. Under Secretary To The Government Of Karnataka Department Of Power Corporation, Bangalore & Others – 2006 (6) KLJ 92. Accordingly, the first respondent filed an application as per Annexure ‘E’ before the Deputy Commissioner and District Magistrate, Bangalore (third respondent in W.P.No.10504/1997) for removal of the obstruction. The petitioners filed their objections to the said application as per Annexure ‘F’. The District Magistrate after considering the rival contentions of the parties, has pa


































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