JUDGMENT
R.K. Merathia, J.
Page 1799
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. Page 1800 The Licensee completed it’s 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 provision of Section 51 of that Act.
6. There appears to be some purpose behind the provisions contained in Section 51 of the Electricity Act, 1910; Section 164 of the Electricity Act, 2003; and Sub-rule (4) of Rule 3 of the Rules, 2006. For early completion of important projects, power has been reserved with the appropriate Government, to issue notification vesting Powers of Telegraph Authority with the licensees, where consent is not required, under Section 10 of the Telegraph Act. Section 51 of the Electricity Act, 1910 had overriding effect over Section 12 of that Act. Similarly, Section 164 read with Sub-rule (4) of Page 1801 Rule 3 of the Rules, 2006, has overriding effect over Rule 3(1) to (3). Section 42 of the Indian Electricity (Supply) Act, 1948 also reserves such powers, and is exception to Section 12 of the Electricity Act, 1910.
7. There cannot be any double that the transmission project in question undertaken by the Licensee is of national importance. The project will benefit a number of persons/villages of different states including this State. Mr. Singh, appearing for the Company, stated that the project was to be completed by March, 2007 and it is on the verge of completion.
8. In view of scheme of the Electricity Act, 1910, Electricity (Supply) Act, 1948, Electricity Act, 2003, the Rules of 2006 and Section 10 of the Telegraph Act; and the notifications dated 24.12.2003, it is clear that prior consent from the petitioners was/is not required.
9. Relying on – The Patna Electric Supply Co. Ltd., v. The Patna Municipal Corporation, Mr. Prasad, appearing for the petitioner, submitted that Section 51 does not by reference incorporate into the Indian Electricity Act all the provisions of the Telegraph Act and merely because some of the powers of Telegraph Act are conferred on the licensee, it does not follow that all the rights and liabilities of a licensee are governed by the provisions of the Telegraph Act. He further submitted that even if certain powers are conferred, the provision of taking consent has to be followed by the licensee.
This judgment was given in a different situation and it is of no help to the petitioners. In the said case the writ petition filed by the licensee challenging the demand raised by the municipality on account of ground rent for erecting electric poles, was rejected on the sole ground that the only method prescribed by law for resolving the controversy between the licensee and the municipality was provided under Section 15 of the Telegraph Act. In that context, it was observed by the Supreme Court, that only because some powers have been conferred by a notification under Section 51 of the Electricity Act, 1910, it will not mean that all the provisions of Telegraph Act has been incorporated in the Electricity Act, 1910.
10. In the Division Bench Judgment of Patna High Court, reported in 1992 (2) PLJR 134 Suku Mahto v. State of Bihar, one of the disputes was that, the licensee could not place transmission line without taking consent as provided under Section 12(2) of the Electricity Act, 1910. The High Court refused to exercise jurisdiction under Article 226 of the Constitution of India taking into consideration that the project was of national importance and was nearing completion; and if the licensee is directed to approach the District Magistrate to obtain necessary permission as per Section 12(2) of the Electricity Act, the same may cause further delay in the project. It was further noticed that the right of an individual sometimes has got to give way to the right of public at large.
11. Paragraph 19 of the judgment Venkatesan v. Chairman, Tamilnadu Electricity Board, Madras, reads as follows:
From the above settled position of law, it is clear that when the Electricity Board exercises power under Section 51 of the Electricity Act read with Section 10 of the Telegraphs Act, they are not acquiring any land. They are only making use of the land for the purpose of laying electric lines for which full compensation Page 1802 is given for the damage caused. It is also clear therefrom that no notice is required to the owner before laying the poles or constructing any tower, nor any consent is required from them.
12. In paragraph 15 of the judgment Rajak and Ors. v. National Thermal Power Corporation Ltd., Indore, it was observed as follows:
In view of the power vested in the Generating Company NTPC under Section 42 of the Act read with part III of the Indian Telegraph Act, there can be no valid objection by the petitioners to the implementation of the sanctioned scheme either on the principles of natural justice or on the ground of unauthorized user of petitioner’s land in respect of which compensation has been provided for under proviso (d) to Section 10 of the Indian Telegraph Act.
13. Mr. Prasad also submitted that if a little diversion is made, it will cause least damage to the petitioners’ interest. He further submitted that there has been some diversion in the line.
14. Such prayer also cannot be accepted. According to the respondents, it is not technically feasible to divert the line as suggested by the petitioners, as alignment of transmission line is made after detailed survey as per the topography of land with a view to cause least disturbance to the existing villages. Moreover, in a 418 kilometer transmission line, there has to be some diversion for route-alignment. If such prayer of petitioners is accepted then it will create a bad precedent and others may also ask for diversion of line. The respondents cannot be directed to erect the transmission line in a zigzag manner. The interests of individuals are to give way to larger interest.
After considering the entire matter, I find no merit in this writ petition, which is accordingly dismissed. However, no costs.
The interim order dated 26.2.2007 granting stay, stands vacated.