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Madras High Court
V. RAMASUBRAMANIAN, J.
R. Santhana Raj & Another
Versus
The Chief Engineer & Others
W.P.(MD)No.8844 of 2011 & M.P.(MD) Nos.1 to 3 of 2011
Decided on : 08-11-2011
ELECTRICITY ACT - SECTION 12(2) - CONSENT OF OWNER - REPEAL - WORKS OF LICENSEES RULES, 2006 - RULE 3(1) - PRIOR CONSENT - TELEGRAPH ACT, 1885 - SECTION 10 - POWERS OF TELEGRAPH AUTHORITY - SECTION 16 - OBSTRUCTION/RESISTANCE - DISTRICT MAGISTRATE'S PERMISSION - INTERPRETATION.
Fact of the Case:
The petitioners, owners of agricultural land, challenged the erection of high tension electric towers by the respondents on their property without obtaining their consent as required by Section 12(2) of the Indian Electricity Act, 1910. The respondents contended that Section 12(2) was repealed by Section 185 of the Electricity Act, 2003, and that the Works of Licensees Rules, 2006, issued under Section 67(2) of the 2003 Act, required prior consent only in cases where the appropriate Government had not conferred powers of a Telegraph Authority under the Telegraph Act, 1885, on the licensee.
Finding of the Court:
The Court held that Section 12(2) of the 1910 Act was repealed by Section 185(1) and 185(2)(b) of the 2003 Act, with the issue of the Works of Licensees Rules, 2006. Rule 3(1)(a) of the 2006 Rules required the licensee to obtain prior consent of the owner or occupier of any land, but this requirement was subject to the powers conferred upon the licensee under Section 164 of the 2003 Act. If the appropriate Government had conferred powers of a Telegraph Authority under the 1885 Act on the licensee, then the licensee could invoke Sections 10 and 11 of the 1885 Act and carry out necessary works without prior consent. The Court further held that the words "obstruction" and "resistance" appearing in Section 16(1) of the 1885 Act had to be given their ordinary meaning and included any kind of objection or protest by the land owner. Such an interpretation was necessary to protect the Constitutional right to property under Article 300-A.
Issues: 1. Whether Section 12(2) of the Indian Electricity Act, 1910, requiring the licensee to obtain consent of the owner or occupier of the land on which it is proposed to carry out certain works, was repealed by the Electricity Act, 2003? 2. Whether the Works of Licensees Rules, 2006, issued under Section 67(2) of the 2003 Act, required prior consent of the owner or occupier in all cases? 3. Whether the licensee could invoke the powers of a Telegraph Authority under the Telegraph Act, 1885, to carry out necessary works without prior consent of the owner or occupier? 4. How should the words "obstruction" and "resistance" appearing in Section 16(1) of the Telegraph Act, 1885, be interpreted?
Ratio Decidendi: 1. Section 12(2) of the Indian Electricity Act, 1910, was repealed by Section 185(1) and 185(2)(b) of the Electricity Act, 2003, with the issue of the Works of Licensees Rules, 2006. 2. Rule 3(1)(a) of the Works of Licensees Rules, 2006, required the licensee to obtain prior consent of the owner or occupier of any land, but this requirement was subject to the powers conferred upon the licensee under Section 164 of the 2003 Act. 3. If the appropriate Government had conferred powers of a Telegraph Authority under the Telegraph Act, 1885, on the licensee, then the licensee could invoke Sections 10 and 11 of the 1885 Act and carry out necessary works without prior consent. 4. The words "obstruction" and "resistance" appearing in Section 16(1) of the Telegraph Act, 1885, had to be given their ordinary meaning and included any kind of objection or protest by the land owner.
Final Decision: The writ petition was dismissed. However, the petitioner was granted liberty to apply to the District Magistrate under Section 17(2) of the Telegraph Act, 1885 for the removal of the towers or to seek compensation in terms of Section 16.
1. The petitioners have come up with the above writ petition, seeking a Mandamus, to forbear the respondents from erecting any high tension electric towers in their property in Survey No.195/1D and 195.14, Veerasigamani Village, Sankarankovil Taluk, Tirunelveli District, in violation of the provisions of the Indian Electricity Act.
2. I have heard Mr. S. Meenakshisundaram, learned counsel for the petitioners and Mr. G. Kasinathadurai, learned Standing Counsel for the respondents.
3. There is no dispute about the fact that the petitioners are the owners of the punja land of an extent of 7 acres and 30 cents with a well and electricity service connection located in Survey No.194 and 195/14, Veerasigamani Village, Sankarankovil Taluk, Tirunelveli District. They also own another extent of punja land in Survey No.195/14.
4. According to the petitioners, they have planted 200 cashewnut trees, 68 palmirah trees and 600 gooseberry trees. The petitioners claim to have obtained a loan from the Indian Bank and they have also decided to float a Trust for establishing a school for poor children.
5. The grievance of the petitioners is that the respondents decided to establish a Storage Wind Farm Sub Station at Sarkaraikulam and that for the said purpose, they made preparations to erect 6 high tension wire linking towers. Some of those towers were proposed to be located in the middle of the property owned by the petitioners. The petitioners oppose the erection of the towers on the ground that their consent was not obtained as required by Section 12(2) of the Indian Electricity Act, 1910 and that on the Northern side and Eastern side of their property, there are roads in which towers could be conveniently located.
6. On 11.8.2011, R.Sudhakar, J., before whom the writ petition came up, passed an order, appointing an Advocate of this Court as a Commissioner to inspect the property and to file a report as to whether any concrete structures are being put up in the property for the purpose of erecting electric poles. The learned Judge also granted an interim injunction restraining the respondents from erecting any towers for high tension electrical wires in their property. Accordingly, the Advocate Commissioner inspected the property and filed a report. In the meantime, the respondents in the writ petition have come up with a petition to vacate the interim order of injunction.
7. However, since the issues raised in the writ petition lie in a narrow campus, I took up the writ petition itself for final disposal with the consent of the learned counsel on both sides.
8. As pointed out earlier, the objections of the petitioners to the erection of the towers in their property are two fold viz., (i) that the consent of the petitioners as required by Section 12(2) of the Indian Electricity Act, 1910, was not obtained; and (ii) that there is alternative land available in the form of public roads, through which the high tension wires can be carried.
9. Section 12(1) of the Indian Electricity Act, 1910 empowered the licensee (Board), among other things, to lay down and place electric supply lines and other works in any place within the area of supply. But sub-section (2) of Section 12 made it clear that nothing contained in sub-section(1), shall be deemed to authorise or empower a Licensee, without the consent of the owner or occupier concerned, to lay down or place any electric supply line or other work in, through or against any building.
10. Based upon Section 12 (2), it was held by a learned Judge of this Court in Bharat Heavy Electricals Ltd vs. Tamil Nadu Electricity Board {2007 (2) MLJ 111} that the erection of poles in the property of the person, without obtaining his consent under Section 12(2) of the said Act, was illegal. In an another decision in Superintending Engineer, TNEB vs. M. Sengu Vijay {2011 (3) MLJ 625}, a Division Bench of this Court also held that under Section 12(2) of the Indian Electricity Act, 1910, the Board was bo
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