R.K. Merathia, J.

1. Heard the parties at length for final disposal.

2. Petitioners contention is that the respondents cannot use their land/part of it for erection of towers and for transmission of overhead lines without their consent; whereas the contention of the respondents is that no such consent is required.

3. The question, therefore, falls for consideration is whether the consent of petitioners is required for erecting towers and transmission of the overhead lines over their land ?

4. Respondent No. 1 is a Central Government Company and is a Licensee under the Electricity Act, 2003 (the Licensee for short). The Licensee is required to establish transmission system and to undertake transmission of electricity through inter-State transmission system. Therefore by a notification dated 24.12.2003 issued under Section 164 of the Electricity Act, 2003, the Ministry of Power, Government of India, authorized the Licensee to exercise all the powers vested in the Telegraph Authority under Part III of the Indian Telegraph Act, 1885. Then a scheme for transmission line of about 418 Kilo meters, involving a total cost of about Rs. 342 Crores was also approved on 14.1.2004 under Section 68 of the Electricity Act, 2003. On 31.1.2004, 18.10.2004 and 12.9.2006, petitioner No. 2 purchased lands in question on the portion of which one tower is to be erected and over which proposed electric line is to pass. The Licensee completed its survey by 22.7.2004. The Works of Licensees Rules, 2006 were notified on 18.4.2006, under Section 176(2)(e) read with Section 67(2) of the Electricity Act, 2003 (the Rules 2006 for short).

5. Section 12 of the Indian Electricity Act, 1910 (Electricity Act, 1910 for short) inter alia authorized the licensee to lay down or place electric supply lines with consent of the owner or the occupier of the land. Section 51 of this Act provided inter alia that notwithstanding anything contained in Sections 12, the Central Government for inter-State transmission system, could confer upon a licensee, any of the powers vested in the Telegraph Authority under the Indian Telegraph Act, 1885. Similar provisions are made in Section 164 of the Electricity Act, 2003 which also provides that appropriate Government may vest powers of Telegraph Authority with the licensee.

Section 67(1) of Electricity Act, 2003 inter alia provides that a licensee may lay down or place electric supply lines. Section 67(2)(a to d) inter alia provides that the Appropriate Government may, make rules specifying- (a) the cases and circumstances in which the consent in writing of the owner or occupier shall be required for carrying out works; (b) the appropriate authority which may grant permission where the owner or occupier objects; (c) the nature and period of notice to be given by the licensee before carrying out works; and (d) the procedure and manner of consideration of objections and suggestions etc. Section 176(2)(e) inter alia provides that the Central Government may make Rules, about the works of licensees affecting the property of owner or occupier under Section 67(2). Rules 2006 are made in exercise of such powers. Rule 3 inter alia authorizes the licensee to carry out works, lay down or place electric supply lines or other works on or over any land, with the prior consent of the owner or occupier of land. Sub-rule (4) of Rule 3 provides that Nothing contained in this rule shall effect the powers conferred upon any licensee under Section 164 of the Act (emphasis supplied). Thus even if it is accepted that Section 12 of the Electricity Act, 1910 continued as per Section 185 of the Electricity Act, 2003, till the rules under Section 67 of this Act, 2003, were made; powers under Section 164 of this 2003 Act, which are akin to the powers contained in Section 51 of the Electricity Act, 1910, was exercised by notification dated 24.12.2003. As already noticed above, the provisions of Section 12 of the Electricity Act, 1910, were subject to the prov