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2018 Supreme(Kar) 866
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ALOK ARADHE, J.
MR MANOHAR SHETTY SON OF M SANJEEVA SHETTY – Appellant
Vs.
THE DEPUTY COMMISSIONER AND THE DISTRICT MAGISTRATE – Respondent
WRIT PETITION NO.8786 OF 2013 C/W WRIT PETITION NO.11978 of 2013 (GM-KEB)
Decided on : 23-11-2018
Advocate Appeared:
For the Appellant : SRI.SHRIDHAR PRABHU, ADV.
For the Respondent: SRI.M.JYOTHI, SRI.S.SRIRANGA ADV.
Headnote:
Electricity Act, 2003 – Sections 12 to 18, 67, 68(4) and 174 - Indian Telegraph, 1885 - Section 16 - Constitution of India, 1950 - Article 300 - Electricity lines for transmission of electricity - Seeking quashment of notification - Transmission licence - Petitioner is owner and is in possession of lands - Respondent No.2 is a transmission licensee under Section 14 of Act - Whether 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 consent of owner was required to be taken before installation of transmission lines - Whether Section 174 of Electricity Act, which is a special law would prevail over the Indian Telegraph, 1885 - Whether transmission licence of respondent No.2 has expired and therefore, respondent No.2 had no authority to execute work in question - Whether line in question is not a transmission line but an overhead line therefore provisions of 67 and 68 of the Act will apply and mechanism provided under Section 68(4) of Act has to be resorted to - Whether notice was issued to petitioner under Section 67 (2) (c) of Act, 2003, the sanction was required to be obtained by respondent No.2 from the appropriate Government – Held, In view of Notification under Section 164 of Act, the respondent No.2, which is a telegraph authority, exercises the powers under Sections 12 to 18 of Act - Licence of respondent No.2 has expired, even then, in view of second proviso to Section 14 of Act, respondent No.2 admittedly being the State Transmission Utility shall be deemed to be transmission licensee and therefore, had authority to execute work in question 0- Court has already come to a conclusion that work in question is covered under definition ‘Transmission Lines’ as provided under Act, therefore question of applicability of Sections 67 & 68 of Act does not arise - Mere wrong mentioning of provision in the notice issued to the petitioner shall not invalidate the action taken by respondent No.2; it has already been held that provisions of Section 67 of Act did not apply to the obtaining factual matrix of case – Admittedly land of petitioner has been utilized for the purposes of laying down transmission line by respondent No.2 - Petitioner has right to hold property under Article 300 of Constitution - Writ petitions disposed of.
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, 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 petitioner’s 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 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 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 110/331 KV electricity 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 li
