Dr. Vandana Bansal vs State Of U.P. And 7 Others
2018 Latest Caselaw 974 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 39
 
Case :- WRIT - C No. - 19519 of 2018
 
Petitioner :- Dr. Vandana Bansal
 
Respondent :- State Of U.P. And 7 Others
 
Counsel for Petitioner :- Narendra Pratap Singh,Ashok Kumar Singh,Santosh Kumar Singh
 
Counsel for Respondent :- C.S.C.,Pankaj Kumar Shukla,Pratik J. Nagar
 

 
Hon'ble Dilip Gupta,J.

Hon'ble Neeraj Tiwari,J.

(Delivered by Hon'ble Neeraj Tiwari, J.)

By way of the present petition, the petitioner is challenging the order dated 04 December 2017 passed by District Magistrate. The case of the petitioner is that petitioner is the owner-in-possession and recorded tenure holder having valid title over the certain piece of land, whose khata numbers are also mentioned in para 2 of the writ petition. The case of the petitioner is that Power Grid Corporation of India and U.P. Power Corporation Ltd. are proposing to erect the electric poles over the petitioner's several plots without informing or taking her permission and also without following the procedure prescribed under relevant provisions of the Electricity Act, 2003 (hereafter referred to as 'Act 2003'), the Indian Telegraph Act, 1885 (hereinafter referred to as 'Act 1885') and Works of Licensees Rules, 2006 (hereinafter referred to as 'Rules 2006'). For redressal of her grievance, the petitioner has submitted an application dated 25 May 2017 before District Magistrate, Allahabad. When no action was taken, she had also filed several reminders and ultimately, she had no option but to file Writ Petition No. 36254 of 2017 (Dr. Vandana Bansal Vs. State of U.P. and 3 others). Writ petition is disposed of vide judgement and order dated 18.08.2017 with direction to District Magistrate to consider the claim of the petitioner in light of provisions of Rule 3 of the Works of Licensees Rules, 2006, which has been framed under the Act, 2003. The relevant part of judgement is quoted below;

".......The grievance of the petitioner would fall within the jurisdiction of the Collector and District Magistrate, having regard to the provisions of Rule 3 of the Works of Licensees Rules, 2006 which have been framed under the Electricity Act, 2003.

Consequently, we permit the petitioner to move the Collector and District Magistrate, Allahabad with a copy of her claim together with a certified copy of this order and placing reliance upon such other material as the petitioner may seeks to rely upon. The Collector and District Magistrate shall take a final decision on the application preferably within a period of three months of the receipt of a copy of the application. ......."

Pursuant to the order of this Court, petitioner has submitted an application on 1 September 2017 before District Magistrate along with certified copy of the aforesaid order with a prayer to take action against the concerned Electricity Department and further directed not to raise construction over the land of the petitioner.

District Magistrate has decided the representation of the petitioner by a detailed and reasoned order dated 14 December 2017.

Assailing the order of District Magistrate dated 04 December 2017, petitioner has submitted that the order passed by District Magistrate is bad in law as he has not considered the provisions of Rule 3(1) to 3(3) of the Rules, 2006 and has further not considered the fact that without any consent, land of the petitioner is used for erection of electric pole and lastly he confined his argument that petitioner has not been awarded any compensation even for damage caused in erection of poles on the plot of petitioner.

Rebutting the argument of learned counsel for the petitioner, Sri Pratik J. Nagar, learned counsel for respondent no. 3 has submitted that Rules 2006 is not applicable in the case of the petitioner and further provision of Section 164 of Act, 2003 read with Section 10 of Act, there is no need of acquiring land and consent and they are only using of land for the purpose of stringing electric wires for which full compensation is given for the damage caused, if any.

We have considered the submissions advanced by learned counsel for the parties.

While passing the impugned order, District Magistrate has considered all relevant rules as well as law laid down by this Court as well as Apex Court and has held that Section 164 of Act, 2003 read with Section 10 of Act, 1885 empower the Corporation to erect the electricity pole without information and petitioner is only entitled for compensation. He has further stated that Section 3(1) to Section 3(3) of Rules, 2006 is not application.

Section 164 of Act, 2003 is parameteria with Section 51 of the Electricity Act, 1910. Section 164 of Electricity Act, 2003 is quoted below;

"164. Exercise of powers of Telegraph Authority in certain cases.--The Appropriate Government may, by order in writing, for the placing of electric lines or electrical plant for the transmission of electricity or for the purpose of telephonic or telegraphic communications necessary for the proper coordination of works, confer upon any public officer, licensee or any other person engaged in the business of supplying electricity under this Act, subject to such conditions and restrictions, if any, as the Appropriate Government may think fit to impose and to the provisions of the Indian Telegraph Act, 1885, any of the powers which the telegraph authority possesses under that Act with respect to the 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."

Erection of pole and stringing of wire is by exercising the power conferred in Section 10 of the Act, 1885. For Ready reference, the same is being quoted below;

"10. Power for telegraph authority to place and maintain telegraph lines and posts.-

The telegraph authority may, from time to time, place and maintain a telegraph line under, over, along, or across, and posts in or upon, any immovable properly:

Provided that-

(a) the telegraph authority shall not exercise the powers conferred by this Section except for the purposes of a telegraph established or maintained by the Central Government, or to be so established or maintained;

(b) the Central Government shall not acquire any right other than that of user only in the property under, over, along, across, in or upon which the telegraph authority places any telegraph line or post; and

(c) except as hereinafter provided, the telegraph authority shall not exercise those powers in respect of any property vested in or under the control or management of any local authority, without the permission of that authority; and

(d) in the exercise of the powers conferred by this section, the telegraph authority shall do as little damage as possible, and, when it has exercised those powers in respect of any property other than that referred to in Clause (c), shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers."

Section 16 Sub-Section 3 of Indian Telegraph Act is also relevant and being quoted below;

"16. Exercise of powers conferred by section 10, and disputes as to compensation, in case of property other than that of a local authority.-

(3) If any dispute arises concerning the sufficiency of the compensation to be paid under section 10, clause (d), it shall, on application for that purpose by either of the disputing parties to be District Judge within whose jurisdiction the property is situate, be determined by him."

Learned counsel for the petitioner has stated in his representation that Section 3(1) to 3(3) of Rules, 2006 has not been followed. Section 3 of Rules, 2006 is being quoted below;

"Rule 3 of the Works of Licensees Rules, 2006, framed in exercise of powers conferred by clause (e) of sub-section (2) of section 176 read with sub-section (2) of section 67 of the Electricity Act, 2003, is reproduced below:

3. to carry out works.--(1) A licensee may--

(a) carry out works, lay down or place any electric supply line or other works in, through, or against, any building, or on, over or under any land whereon, whereover or whereunder any electric supply-line or works has not already been lawfully laid down or placed by such licensee, with the prior consent of the owner or occupier of any building or land;

(b) fix any support of overhead line or any stay or strut required for the purpose of securing in position any support of an overhead line on any building or land or having been so fixed, may alter such support:

Provided that in case where the owner or occupier of the building or land raises objections in respect of works to be carried out under this rule, the licensee shall obtain permission in writing from the District Magistrate or the Commissioner of Police or any other officer authorised by the State Government in this behalf, for carrying out the works:

Provided further that if at any time, the owner or occupier of any building or land on which any works have been carried out or any support of an overhead line, stay or strut has been fixed shows sufficient cause, the District Magistrate or the Commissioner of Police, or the officer authorised may by order in writing direct for any such works, support, stay or strut to be removed or altered.

(2) When making an order under sub-rule (1), the District Magistrate or the Commissioner or Police or the officer so authorised, as the case may be, shall fix, after considering the representations of the concerned persons, if any, the amount of compensation or of annual rent, or of both, which should in his opinion be paid by the licensee to the owner or occupier.

(3) Every order made by a District Magistrate or a Commissioner of Police or an authorised officer under sub-rule (1) shall be subject to revision by the Appropriate Commission.

(4) Nothing contained in this rule shall effect the powers conferred upon any licensee under section 164 of the Act."

Further, District Magistrate has considered the Acts, Rules and law laid down by this Court correctly and held that when the Corporation is exercising powers under Section 164 of the Act, 2003, the prohibition contained in Rules, 2006 is not applicable. Finally, the District Magistrate has rightly held that in light of provisions of rules as well as law down by this Court, the Power Corporation has full authority to erect tower and no prior information is required and further Rule 3(4) of Rules, 2006 will not be applicable. Lastly, District Magistrate rightly drawn a conclusion that the petitioner is only entitled for damages for crops /trees for which assessment shall be done by Revenue Department or any Competent Department after completion of work and if she is aggrieved, she may file appeal before the Competent Court, which is District Judge as provided in Section 16 Sub-Section 3 of Indian Telegraph Act.

From perusal of Section 164 of the Act, 2003 read with Sections 10 and 16(3) of Act, this fact is very much clear that the Corporation has authority to erect the poles even without information and petitioner is only entitled for compensation as provided in Section 10(d) and Section 16(3) of Indian Telegraph Act. From a perusal of Section 3(4) of Rules, 2006, this fact is also very much clear that when Corporation is exercising power under section 164 of Act, 2003, Rules 2006 is not applicable.

This matter was also considered by a Division Bench of this Court in Pooram Singh and others Vs. State of U.P. and others; 2016(7) ADJ 501 (DB) and it has been held that the petitioners are only entitled for compensation and if they are aggrieved, they can approach the District Judge. It has further been held that Rule 3(4) of Rules, 2006 clarifies that nothing contained in Rule shall effect the powers conferred upon any licensee under section 164 of the Act. The Court has also stated that there is no need of acquiring any land as Corporation is also only making use of land for the purpose of stringing electricity line for which compensation is given for the damages caused. Para 10 and 11 of the said judgment is being quoted below;

10. We have occasion to go through the scheme of Electricity Act, 2003, Telegraph Act and Works of Licensees Rules, 2006 which clearly provide for the authority to the Corporation for placing electricity supply line and apparatus for transmission of power which the telegraph authority possesses under the Telegraph Act. If a person objects to establishment of poles and drawing electricity lines over his land, the authority has to apply for permission to the District Magistrate and in such a case the District Magistrate has to work out a fair compensation to be paid to the persons within reasonable time. In case the person is not satisfied with the quantum of compensation, which has been offered to him by the District Magistrate, the District Judge in such cases has been authorised to work out compensation under sub-section (3) of Section 16 of the Telegraph Act. Sub-rule (4) of Rule 3 of Works of Licensees Rules, 2006 clarifies the situation that nothing contained in Rule shall effect the powers conferred upon any licensee under Section 164 of the Act. The provisions of Section 164 of the Act are not at all controlled/governed/subject to the provisions of Works of Licensees Rule, 2006 and same is an independent exercise of authority.

11. In Deva Raj Vs. U.P. State Electricity Board, Lucknow & Ors., MANU/UP/0116/1977 : AIR 1977 Allahabad 452, a Division Bench of this Court had examined the provisions of Section 51 of the Indian Electricity Act, 1910, which is similar to the provisions of Section 164 of the Electricity Act, 2003 and observed that in view of the notification issued by the State Government under Section 51 of the 1910 Act read with Section 10 of the Telegraphs Act, the respondents have the power to install the towers on the land owned by a person. Similarly the Madras High Court, in E. Venkatesan & Ors. Vs. Chairman, Tamil Nadu Electricity Board, Madras & Ors., while dealing with the powers under Section 51 of the Act of 1910, also observed:-

"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 electricity lines for which full compensation 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."

Therefore, we find no illegality or irregularity in the order passed by District Magistrate. There is, therefore, no reason to interfere with the impugned order dated 04 December 2017 passed by District Magistrate. At this stage, petitioner is only entitled for damages as provided in the order of District Magistrate dated 04 December 2017. For the aforesaid purpose, it is always open for the petitioner to approach the Authorities for grant of compensation as provided in Section 10(d) of the Act, 1885 and in case, she is not satisfied with the compensation, she may approach the District Judge under Section 16(3) of the Act, 1885.

The petition is, accordingly, dismissed with the aforesaid observation.

Order Date :- 28.5.2018

Arvind

(Dilip Gupta, J.)

(Neeraj Tiwari, J.)