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Gujarat High Court
Judgename :RAVI R.TRIPATHI
JAYANTKUMAR BHAGUBHAI PATEL - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CIVIL APPLICATION 11473 Of 2006
Decided On : 08/03/2006
Whether a duty cast on respondent - Company laying down overhead electric lines and erect poles on land of landholder without their prior approval.
Head Note :
Electricity Act, 2003 (Central Act 36 of 2003) - Sections 14, 67, 68 and 164 - Gujarat Electricity Industry (Reorganisation and Regulation) Act, 2003 - The Works of Licensees Rules, 2006 - Rule 10 - [Indian] Electricity Act, 1910 - Sections 12 to 16, 18, 19, 28 and 51 - [Indian] Telegraph Act, 1885 - Sections 10 and 16 - Supply of electricity - Laying down overhead lines without approval of landholder - Validity - Finding as to - In view of the project sanctioned by Government, Respondent No. 2 before undertaking to laying of electric towers issued public notice on 27.08.2005 inviting objections from persons aggrieved within two months but company did not receive any objection from any person including the petitioners - The contention that consent of the owners of the land through which the line travel was not secured by respondents before laying the poles and towers to draw the electric lines is without substance and has no force when the line is being drawn in exercise of the powers conferred under Section 51 of Act of 1910 read with Sections 10 and 16 of the [Indian] Telegraph Act, of 1885 - Once the power under the Act of 1885 is given to respondent company they are entitled to dig pits and also instal towers over the property and question of consent from petitioners does not arise - Court found that the present petitions are filed with an oblique motive and for extraneous considerations - Court accordingly finding no substance dismissed the petitions.
Held :
Section 51 of the Indian Electricity Act, 1910 confers powers of telegraph authority on a licensee. That being so, it is within the powers of the State Government to confer powers of the telegraph authority for placing of electric supply lines, appliance and apparatus for the transmission of energy or the purpose of telephonic or telegraphic communications necessary for the proper coordination of works by order in writing. Not only on a licensee but even on any public officer, licensee or any other person engaged in the business of supplying energy to the public under this Act. It is true that it is open to the State Government to impose such conditions and restrictions which it may think fit to impose. The Advocate submitted that the State Government can, confer any of the powers which the telegraph authority possesses under that Act with respect to 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. Section 51 expands the powers of the licensee at par with the powers which the telegraph authority possesses under the Telegraph Act with respect of 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. [Para 20]
It becomes very clear from the provisions of Sections 10 to 19 of the Indian Telegraph Act coupled with provisions of Section 51 of the Indian Electricity Act that the Board was not required to obtain consent of the petitioner for doing the impugned work or for any works as defined in Section 2(n). It is also not obligatory on the part of the competent authority which has been conferred powers of the Indian Telegraph Act under Section 10 of the said Act, to issue prior notice to the owner of the property over which electric supply line is proposed and before exercising powers under Section 10. In view of the conjoint reading of the provisions of Section 51 of the Electricity Act and Section 10 of the Indian Telegraph Act, for exercise of powers in laying down poles and construction of electric line, consent or prior intimation was not necessary. [Para 22]
The other contention urged, namely, that consent of the owners of the land through which the line travel was not secured by Respondents 4 and 5 before laying the poles and towers to draw the electric line recedes to background, when the line is being drawn in exercise of the powers conferred, under the Section 51 of the Electricity Act read with Sections 10 and 16 of the Telegraph Act. If there is an order in this behalf, then no consent is called for."
[Para 23]
Court finds that the present are the petitions filed with an oblique motive and for extraneous considerations. In view of the aforesaid discussion, the Court finds that the petitioners have no substance and the same are dismissed. [Para 24]
Law Laid Down :
When electric lines are being drawn in exercise of powers conferred under Section 51 of Electricity Act read with Sections 10 and 16 of Telegraph Act then no consent of landholders necessary.
Case Law Analysis :
Jiviben Motibhai Patel vs. Executive Engineer (C&M), Gujarat Electricity Board, Baroda & Anr., reported in 1996 (1) GLR 470 [Para 22];; S.M. Rao & Ors. vs. State of Karnataka, AIR 1999 Karnt 475 [Para 23];; E. Venkatesan & Ors. vs. Chairman, Tamil Nadu Electricity Board, Madras & Ors., AIR 1997 Mad 64 [Para 24].-Relied on
Conclusion :
In view of the conjoint reading of provisions of Section 51 of Electricity Act, and Section 10 of Indian Telegraph Act for exercise of powers in laying down poles and construction of electric lines, consent or prior intimation to petitioners was not necessary.
Decided in Favour of :
Respondent
Petition Dismissed
( 2 ) THE petitioner in Special Civil Application No. 11473 of 2006 too has approached this Court through her Power of Attorney Holder. She is the owner of land bearing Block No. 160 of Village Popda, Taluka Choriyasi, District Surat. The petitioner in this petition has similar grievance as that of petitioner in SCA No. 11162 of 2006 that in the agricultural land belonging to the petitioner one electric tower/ pylon is to be erected. The petitioner through her Power of Attorney submitted her written objections on 8th May 2006. The impugned notice (Annexure a to this petition) was issued on 9th May 2006. Respondent no. 2 replied to the Power of Attorney Holder of the petitioner on 9th May 2006. This Court has issued notice on 13th June 2006 and ordered that this matter be heard with Special Civil Application No. 11162 of 2006. The facts in both these petitions being identical and the grievance voiced by the petitioners in both these petitions being similar, these petitions are dealt with and disposed of by this common judgement.
( 3 ) THE petitioners have approached this Court through a common Power of Attorney holder. It is stated in para 1 of the petition that,"the petitioners by this petition challenge notice dated 02. 05. 2006 (copy at Annexure a hereto) (hereinafter referred to as the impugned notice ) for laying overhead electric supply lines, upon Shri Jagdishbhai Ramanbhai Patel who is the nephew of the petitioner no. 1 and who handles the affairs of the petitioners on their behalf as the petitioners are residing abroad. "this fact is mentioned as the Court is of the opinion that this litigation is a luxury litigation and is motivated to bring pressure on the respondents to come to same terms by creating hurdle in laying down 220 KV overhead line from the point of generation of electricity to the point of distribution from where number of consumers in the licensed area of respondent no. 2-company are to be supplied the electricity.
( 4 ) THE facts giving rise to the present petitions are that, respondent no. 2 is a licensee as per the provisions of section 14 of the Electricity Act, 2003 ("the said Act" for brevity) and is discharging duty of supplying of electricity to the city of Surat. It issued notice to the present petitioners dated 2nd May 2006. Though the communication is titled as notice, it was more in the nature of formal intimation of the work being undertaken in the agricultural land belonging to the petitioners. It is required to be noted that in the agricultural land belonging to the petitioners bearing block no. 296 only one electric pylon (tower) is to be erected which is going to use land admeasuring 10 m. x 10 m. = 100 sq. mtrs only, that too without there being any damage, much less of permanent nature to the land, as the same can be continued to be used for the purpose of agricultural operations. This fact is evident from the photographs, produced at Annexure R-9 by respondent no. 2-company with the affidavit in reply. It is also equally important to note that the total area of agricultural land possessed by the petitioners is 40,000 sq. meters. This fact is relevant to show that the litigation is a luxury litigation and is pursued for extraneous considerations.
( 5 ) THE challenge to the notice is on various grounds. The first ground which is pressed into service by the learned advocate for the petitioners is that in view of the provisions of section 67 of the Act, respondent no. 2 could not have undertaken the work of laying down overhead lines and as a result thereof could not have used the agricultural land belonging to the petitioners. The learned advocate for the petitioners submitted that in vie
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