Karnataka High Court

Udupi Kasargode Transmission ... vs Mr. Emmanuel Vincent D Sa on 27 July, 2023

Bench: Chief Justice, M.G.S. Kamal

                         -1-




 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 27TH DAY OF JULY, 2023

                      PRESENT

THE HON'BLE MR.PRASANNA B.VARALE, CHIEF JUSTICE

                        AND

        THE HON'BLE MR.JUSTICE M.G.S. KAMAL

        WRIT APPEAL NO.560 OF 2023(GM-KEB)

BETWEEN:

       UDUPI KASARGODE
       TRANSMISSION LIMITED
       EARLIER AT: F-1 THE MIRA
       CORPORATE SUITES 1 AND 2
       ISHWAR NAGAR
       MATHURA ROAD
       NEW DELHI-110 065

       NOW AT: 4TH FLOOR
       ABCO TRADE CENTRE
       KOTTARA CHAWKI
       MANGALORE-575 013.

       EMAIL:
       [email protected]
       REP. BY ITS AUTHORIZED SIGNATORY
       MR. BALVEER MISHRA.

                                          ... APPELLANT
(BY SRI. SRINIVASAN RAGHAVAN V., SENIOR ADVOCATE FOR
SRI. ADITYA VIKRAM BHAT, ADVOCATE)
AND:

1.     MR. EMMANUEL VINCENT D' SA
       S/O IGNATIUS D SA
       AGED ABOUT 67 YEARS
       ANTRIL HOUSE PANJIKAL
                        -2-


     VILLAGE POST AGRAR
     BANTWAL TALUK
     DAKSHINA KANNADA - 574 211.

2.   MR. HARISH SHETTY
     S/O B. MAHABALA SHETTY
     AGED ABOUT 60 YEARS
     R/AT 4-201
     SAHANA NILAYA COLLEGE ROAD
     B KASBA VILLAGE
     POST BANTWAL
     DAKSHINA KANNADA-574 211.

3.   MS. JACINTHA LOBO
     D/O LOUIS LOBO
     AGED ABOUT 70 YEARS
     3-143 HUDKUNJE HOUSE
     PANJIKAL VILLAGE POST
     SORNAD DAKSHINA KANNADA-574 211.

4.   MR. ALEXANDER SEQUEIRA
     S/O LATE VOLARIAN SEQUERIA
     AGED ABOUT 51 YEARS
     R/AT 4-31(1),
     GUARDIAN ANGEL SONRAD HOUSE
     PANJIKAL VILLAGE
     POST SONRAD
     DAKSHINA KANNADA-574 211.

5.   MR. R. VICTOR LOBO
     S/O CHARLES LOBO
     AGED ABOUT 64 YEARS
     R/AT 3-126(5)
     MUKUDA HOUSE, POST AGSAR
     PANJIKAL VILLAGE POST SORNAD
     DAKSHINA KANNADA-574 211.

6.   MR. STELNI LOBO
     S/O CHARLES LOBO
     AGED ABOUT 62 YEARS
     R/AT 3-126(5)
     MUKUDA HOUSE, POST AGSAR
     PANJIKAL VILLAGE POST SORNAD
     DAKSHINA KANNADA-574 211.
                         -3-


7.     MR. JOSEPH HILARY LOBO
       S/O BAPTIST LOBO
       AGED ABOUT 50 YEARS
       R/AT T 2-69
       DEMBUDE HOUSE POST
       SORNAD ARALA VILLAGE
       DAKSHINA KANNADA-574 211.

8.     MR. ANTONY BAPIST PINTO
       S/O AMBROSE PINTO
       AGED ABOUT 48 YEARS
       R/AT 2-108
       SORNADU HOUSE POST
       SORNAD
       DAKSHINA KANNADA-574 211.

9.     MR. ALBERT EVEJIN PINTO
       S/O PETER PINTO
       AGED ABOUT 68 YEARS
       R/AT 2-100/1
       SORNAD HOUSE POST
       SORNAD ARALA VILLAGE
       BANTWAL TALUK
       DAKSHINA KANNADA-574 211.

10 .   MR. WILLIOM PINTO
       S/O AMBROSE PINTO
       AGED ABOUT 51 YEARS
       2-108/1 SHARON POST
       SORNAD ARALA VILLAGE
       DAKSHINA KANNADA-574 211.

11 .   MR. ROY MARK CARLO
       S/O LATE FELIX CARO
       AGED ABOUT 52 YEARS
       R/AT 2-66/5
       LORETTO HOUSE AMTADY
       BANTAWAL TALUK
       DAKSHINA KANNADA-574 211.

12 .   MR. SANDEEP POOJARY
       S/O SEENA POOJARY
       AGED ABOUT 37 YEARS
       R/AT 1-82
                         -4-


       DARBE HOUSE
       BANTWAL KASABA VILLAGE
       POST BANTWAL
       DAKSHINA KANNADA-574 211.

13 .   MR. ARUN ANIL D SOUZA
       S/O LATE LAZARUS D SOUZA
       AGED ABOUT 45 YEARS
       R/AT 1-47, ATHREL HOUSE
       POST AGRAR
       PANJIKALLU VILLAGE
       BANTWAL TALUK
       DAKSHINA KANNADA-574 211.

14 .   MRS. LILLY SEQUIRA
       W/O ROBERT PINTO
       AGED ABOUT 71 YEARS
       R/AT 3-136(1)
       MUKUDA HOUSE POST AGRAR
       BANTWAL
       DAKSHINA KANADA-574 211.

15 .   MR. LANCY CARLO
       S/O LATE SYMAN CARLO
       AGED ABOUT 50 YEARS
       R/AT 3-126,
       MUKUDA HOUSE
       PANJIKALLU VILLAGE
       PANJIKAL VILLAGE
       POST SORNADU
       BANTWAL
       DAKSHINA KANNADA-574 211.

16 .   MR. SANTHOSH JOY PINTO
       S/O LATE PAUL PINTO
       AGED ABOUT 36 YEARS
       R/AT 2-76-2, ARBI HOUSE
       POST SORNADU
       BANTWAL
       DAKSHINA KANNADA-574 211.

17 .   MR. RAJESH ROHAN LOBO
       AGED ABOUT 37 YEARS
       S/O LEO LOBO
                           -5-


       R/AT 2-71/1 DEMBUDE HOUSE
       ARALA VILLAGE POST ARLA
       BANTWAL TALUK
       DAKSHINA KANNADA - 574 211.

18 .   MR. NAGESH BANGERA
       S/O BABU MOOLYA
       AGED ABOUT 47 YEARS
       R/AT 3/6 BARDEL HOUSE
       BANTWAL, KASBA VILLAGE POST
       BANTWAL
       DAKSHINA KANNADA-574 211.

19 .   MR. VLARIAN A MASCARENHAS
       S/O L. MOURICL MASCARENHAS
       AGED ABOUT 69 YEARS
       R/AT 3-125 ACHARIKODI HOUSE
       POST AGRAR PANJIKAL VILLAGE
       BANTWAL TALUK
       DAKSHINA KANNADA-574 211.

20 .   MR. RUPESH MASCARENHAS
       AGED ABOUT 28 YEARS
       S/O VELARIA A MASARENHAS
       R/AT 3-125 ACHARIKODI HOUSE POST
       AGRAR PANJIKAL VILLAGE
       BANTWAL TALUK
       DAKSHINA KANNADA-574 211.

21 .   MR. HENRY THOMAS CARLO
       AGED ABOUT 87 YEARS
       S/O JACOB CARIO 3-145/1
       MUKUDA HOUSE POST
       SORNAD PANJIKAL
       BANTWAL TALUK
       DAKSHINA KANNADA-574 211.

22 .   MR. JOHN BAPTIS SEQUERA
       S/O VALARIAN SEQUE RA, 2-94/2
       SORNAD HOUSE
       ARALA VILLAGE, POST SORNAD
       BANTWAL TALUK
       DAKSHINA KANNADA-574 211.
                          -6-



23 .   MR. CHARLES LOBO
       S/O DOOJA LOBO
       R/AT 2-75/1
       DEMBUDE HOUSE
       ARALA VILLAGE, ARALA POST
       BANTWAL TALUK
       DAKSHINA KANNDA - 574 211.

24 .   MR. SEBESTION LOBO
       S/O JOSEPH LOBO
       R/AT 2-72
       DEMBUDE HOUSE
       ARALA VILLAGE
       ARALA POST SORNAD
       BANTWAL TALUK
       DAKSHINA KANNADA-574 211.

25 .   MR. CHARLES SEQUERA
       S/O KARMINA SEQUERA
       R/AT 3-131
       MUKUDA HOUSE
       PANJIKAL VILLAGE
       POST AGRAR
       BANTWAL TALUK
       DAKSHINA KANNADA-574 211.

26 .   MR. JOHN D SOUZA
       S/O LOOSY PAIS
       AGED ABOUT 47 YEARS
       3-235, MADYAR HOUSE
       BANTWAL KASBA VILLAGE POST
       AGRAR BANTWAL TALUK
       DAKSHINA KANNDA-574 211.

27 .   MR. RONALD VAS
       S/O LEO CHARLES VAS
       AGED ABOUT 58 YEARS
       3-134 (1)
       MUKUDA HOUSE PANJIKAL
       VILLAGE POST AGRAR
       BANTWAL TALUK
       DAKSHINA KANNADA-574 211.
                          -7-


28 .   MR. SILVESTER D SOUZA
       S/O GREGORI D SOUZA
       AGED ABOUT 51 YEARS
       3-235 MADYAR HOUASE
       BANTWAL KASABA VILLAGE
       POST AGRAR
       BANTWAL TALUK
       DAKSHINA KANNADA - 574 211.

29 .   MRS. PAULIN D SOUZA
       W/O LATE JOHN D SOUZA
       AGED ABOUT 73 YEARS
       3-236
       MADYAR HOUSE MOTHER
       THERESA ROAD
       BANTWAL KASBA VILLAGE
       POST BANTWAL
       BANTWAL TALUK
       DAKSHINA KANNADA-574 211.

30 .   MR. PAELIN CRASTA
       W/O JEROM D SOUZA
       AGED ABOUT 57 YEARS
       3-235, MADYAR HOUSE
       BANTWAL KASBA VILLAGE
       POST AGRAR
       BANTWAL TALUK
       DAKSHINA KANNADA-574 211.

31 .   MR. MARCEL D SOUZA
       S/O SALWADORE D SOUZA
       AGED ABOUT 59 YEARS
       3-15, MADYAR HOUSE
       BANTWAL KASBA VILLAGE
       POST AGRAR
       BANTWAL TALUK
       DAKSHINA KANNADA-574 211.

32 .   MRS. KUSHALAKSHI
       W/O SOANDEEP OOOJARY
       AGED ABOUT 36 YEARS
       1-82, DARBE HOUSE
       BANTWAL BASBA VILLAGE
       POST AGRAR, BANTWAL TALUK
                           -8-


       DAKSHINA KANNADA-574 211.

33 .   MR. ALBAN PINTO
       S/O PIUS PINTO
       AGED ABOUT 68 YEARS
       POST AGRAR
       PANJIKALLU VILLAGE
       BANTWAL TALUK
       DAKSHINA KANNADA-574 211.

34 .   MR. SANTHOSH DAVID MENEZES
       S/O LAWRENCE MENEZES
       AGED ABOUT 38 YEARS
       1-154a(1) ATHREL HOUSE
       POST AGRAR
       BANTWAL KASABA VILLAGE
       BANTWAL TALUK
       DAKSHINA KANNADA-574 211.

35 .   MR. JANARADHANA
       S/O BABU MOOLYA
       AGED ABOUT 56 YEARS
       3-6 BARDEL HOUSE BANTWAL
       KASABA VILLAGE POST
       BANTWAL, BANTWAL KASABA VILLAGE
       DAKSHINA KANNADA-574 211.

36 .   MR. KRISHNA NAIK
       S/O LATE NARAYANA NAIK
       AGED ABOUT 71 YEARS
       1-123 DARBEPALKE HOUSE
       JARKRIBETTU POST
       AGRAR BANTWAL
       KASABA VILLAGE
       BANTWAL TALUK
       DAKSHINA KANNADA-574 211.

37 .   MRS. JULIANA BARBOZA
       D/O PASCAL BARBOZA
       AGED ABOUT 81 YEARS
       4-85 PANJIKALLU VILLAGE POST
       SORNAD BANTWAL TALUK
       DAKSHINA KANNADA-574 211.
                             -9-



38 .   MR. GANGADHAR POOJARY
       S/O MUTTAYA POOJARY
       AGED ABOUT 53 YEARS, 3-52
       SRI.GURU NIVASA KUTTIKALA
       POST KARPE ARALA VILLAGE
       BANTWAL TQ.
       DAKSHINA KANNADA-574 211.

39 .   MR. VISHWANATHA POOJARY
       S/O MUTTAYAYA POOJARY
       AGED ABOUT 58 YEARS
       2-52, BAILU HOUSE POST
       KARPE ARALA VILLAGE
       BANTWAL TQ. DK-574 211.

40 .   MR. NELAYA POOJARY
       S/O MUTTAYYA POOJARY
       AGED ABOUT 66 YEARS
       KITTIKALA HOUSE POST
       KARPE ARALA VILLAGE
       BANTWAL TQ.DK-574 211.

41 .   UNION OF INDIA
       REP. BY THE SECRETARY
       MINISTRY OF POWER
       GOVT. OF INDIA SHRAM SHAKTI
       BHAWAN RAFI MARG
       NEW DELHI-110 001.

42 .   THE CENTRAL ELECTRICITY
       AUTHORITY (CEA)
       A STATUTORY BODY CONSTITUED
       UNDER THE ELECTRICITY ACT 2003
       SEWA BHAWAN R K PURAM SECTOR 1
       NEW DELHI-110 066
       REP. BY ITS chairperson [email protected] or
       [email protected].

43 .   KARNATAKA POWER TRANSMISSION
       CORPORATION LIMITED
       A GOVERNMENT COMPANY
       INCORPORATED UNDER THE
       COMPANIES ACT 1956
                          - 10 -


       HAVING ITS REGISTERED OFFICE AT
       KAVERI BHAVAN
       BENGALURU-560 009.
       REP. BY ITS MANAGING DIRECTOR.

44 .   STATE OF KARNATAKA
       REP. BY ADDL. CHIEF SECRETARY TO THE
       GOVERNMENT OF KARNATAKA
       DEPARTMENT OF ENERGY
       VIKASA SOUDHA
       DR. B.R. AMBEDKAR STREET
       BENGALURU-560 001.
       [email protected].

45 .   THE DEPUTY COMMISSIONER
       DAKSHINA KANNADA DISTRICT
       3RD FLOOR
       MINI VIDHANA SOUDHA BUILDING
       MANGALURU-575 001.

46 .   KERALA STATE ELECTRICITY BOARD LTD. (KSEB)
       VYDYUTHI BHAVANAM PATTOM
       THIRUVANANTHAPURAM-695 004
       [email protected].

                                      ... RESPONDENTS

(BY SRI. SHRIDHARA PRABHU, ADVOCATE FOR R1 TO R40;
    SRI. H. SHANTHI BHUSHAN, DSGI FOR R41 & 42;
     Ms. NAYANA TARA B.G. ADVOCATE FOR R43
    SRI. S.S. MAHENDRA, AGA FOR R44 & R45 )
                          ---

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET
ASIDE   JUDGMENT   DATED    MARCH   29,   2023   IN
W.P.No.20819/2021(GM-KEB),   DISMISS    THE    W.P.
No.20819/2021(GM-KEB) AND ETC.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED,
COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS
DAY, M.G.S.KAMAL J., DELIVERED THE FOLLOWING:
                                 - 11 -


                           JUDGMENT

This writ appeal is against the order dated

29.03.2023 passed in W.P.No.20819/2021 (GM-KEB) by

which learned Single Judge allowed the writ petition filed by

the respondents 1 to 40 holding that the order dated

12.02.2015 passed by respondent No.41-Union of India as

per Annexure-A insofar as it relates to the respondents 1 to

40 to be unenforceable and also quashed the approval

granted by respondent No.42-Central Electricity Authority

under Section 68 of Electricity Act, 2003 in file No.CEA-PS-

12-14(20)/1/2018-PSPA-II Division dated 18.01.2019 at

Annexure-B insofar as it relates to laying of overhead

transmission lines on the land belonging to respondents 1

to 40.

2. Impugned Order dated 12.02.2015 at Annexure-A

issued by respondent No.41- Union of India, Ministry of

Power delegating the power to grant approval under

Sections 68 and 164 of the Electricity Act, 2003 (hereinafter

referred to as `Act, 2003' for short) which was vested with

the Joint Secretary (Transmission) Ministry of Power, to the

respondent No.42 -Central Electricity Authority(CEA) by its

Chairperson. Annexure-B is a communication according

- 12 -

prior approval by CEA in favour of the appellant for laying

of Udupi (UPCL) Kasargode 400 KV Quad D/C transmission

line.

3. The aforesaid writ petition was filed by

respondents 1 to 40 herein challenging Annexures A and B

contending inter alia that they are the agriculturists and

owning certain lands over which a scheme for installation of

overhead lines is proposed. That if the overhead lines were

installed and project was implemented, the same would

adversely affect their livelihood and deprive them of their

Right to Property. That Section 68 of the Act, 2003

provides that overhead lines to be installed with prior

approval of the Appropriate Government subject to certain

terms and conditions. That in the absence of any provision

the action of respondent No.41 in delegating the authority

to respondent No.42-CEA to grant approval under Section

68 was one without authority. That respondent No.42-CEA

could perform the functions as that of the Central

Government only when the rules under Section 176(1) of

the Act, 2003 were framed and notified and in the absence

of any such notification approval granted by respondent

No.42 -CEA is without authority. That the impugned order

- 13 -

at Annexure-A would be valid only if it was expressed in the

name of the President or the Governor as provided under

Articles 77(2) and 166(2) of the Constitution of India. Non-

compliance with the aforesaid provisions had rendered the

entire process without authority of law. That even

respondent No.43-KPCTL had objected for implementation

of the project. Hence, writ petition was filed seeking

quashment of Annexures-A and B.

4. In response to the above, it was contended on

behalf of respondents 41 and 42 before the learned Single

Judge that a plain reading of provisions of Section 68 of the

Act, 2003 indicates that the function of the Central

Government granting prior approval is purely administrative

in nature which is a residuary action and the act of

delegation of power to another would not denude the power

of Central Government. It is merely a transfer of authority

from one body to another. That the respondent No.41 had

issued impugned order at Annexure-A in exercise of power

conferred under Section 73 of the Act, 2003 which

contemplates that CEA to perform such functions and duties

as the Central Government may prescribe or direct. The

delegation of power is traceable to Section 75 of the Act,

- 14 -

2003 which enables the Central Government to issue

direction as specified thereunder.

5. On behalf of appellant/respondent No.3 it was

contended that the doctrine of eminent domain would

prevail and private interest would give way for public

purposes and the only remedy available to the respondents

1 to 40 is to seek compensation. The relief sought cannot

be entertained under extraordinary writ jurisdiction as the

project under execution is one for public purpose. That the

prior approval under Section 68 of the Act, 2003 is granted

by respondent No.42-CEA which is a statutory body

constituted under the Act, 2003 and has become competent

authority pursuant to the impugned order dated 12.02.2015

at Annexure-A passed by the respondent No.41 delegating

the above function to the Chairperson of CEA. That the Act,

2003 empowers the Central Government to delegate

powers, functions and duties under Sections 2(5), 2(6),

70(1), 70(5) and 73(o).

6. On behalf of respondent No.43-KPTCL it was

submitted that there are two sets of functions and duties of

respondent No.42 as provided under Section 73 of the Act,

- 15 -

2003. One set of functions and duties to be performed by

CEA as may be prescribed or directed by the Central

Government and another set is as contained in Section

73(a) to (o). That the first part of Section 73 cannot be

read to mean that it excludes Central Government directing

CEA to perform functions vested in the Central Government

by the statute as no such embargo is forthcoming in the

statute. That Section 73 envisages power of implied

delegation.

7. On consideration of the submissions made by the

counsel for the parties, learned Single Judge framed the

following point for his consideration namely:

"Whether the first respondent can delegate power under Sections 68 and 164 of the Act, 2003 and consequently, the prior approval granted by the 2nd respondent is valid?"

8. While answering the aforesaid question referring

to certain provisions of the Act, 2003 learned Single Judge

came to the conclusion that prior approval by the

respondent No.42 under Section 68 of the Act, 2003 is one

without authority of law and accordingly allowed the writ

petition granting the prayers as sought for and noted

above. Being aggrieved by the impugned order, appellant

- 16 -

who was arrayed as respondent No.3 in the writ petition

before the learned Single Judge is before this Court by way

of this appeal.

9. It is the case of the appellant that:

9.1 To address severe power shortage in the State of

Kerala, it was proposed to install fresh transmission

infrastructure between Udupi and Kasargode. The said

proposal was conceived upon the request of respondent

No.46 -the Kerala State Electricity Board which intended to

address the power shortage in the northern parts of State

of Kerala. Owing to transmission constraints it was

proposed to install a high capacity 400 KV (quad) double

circuit (DC) inter state electricity transmission overhead

lines between State of Karnataka and Kerala known as

Udupi-Kasargode 400 KV(quad) double circuit (DC) inter

state line along with various other associated infrastructure,

creation and upgrades. That upon completion of the project

more than 1000 MW power evacuation capability will be

added to the southern power grid and Waynad substation

will have a line in and line out to Mysore-Kozhikod line. The

beneficiaries include not only the people of Kerala but also

beneficiaries of Andhra Pradesh, Telegana, Karnataka and

Tamil Nadu.

- 17 -

9.2 That the said project was discussed at various

meetings of the Standing Committee on Power System

Planning in Southern Region which functions under CEA and

is technically competent body for such deliberations after

considering the alternate use and objections etc. The

transmission scheme was agreed in the 35th Meeting of the

said Committee held on 04.01.2013 and the project was

approved in its 41st Meeting held on 22.09.2017.

9.3 That respondent No.41, Ministry of Power,

Government of India also took steps in furtherance to the

project and appointed REC Transmission Project Company

Pvt. Ltd. - A Government of India Undertaking, as bid

process coordinator to select a bidder to undertake the

project through tariff based competitive process. Said

company had also obtained approvals for the purpose of

implementation of the project and incorporated appellant as

Special Purpose Vehicle to implement the project. Thus,

the appellant was incorporated on 09.11.2018 as a wholly

owned subsidiary of REC Transmission Project Company

Pvt. Ltd.

- 18 -

9.4 Amongst certain approvals and orders that were

required for further implementation of project, "prior

approval" under Section 68 of the Act, 2003 is one such

approval since it involved installation of overhead lines.

Further the implementation of the project required a

transmission licence in terms of Section 12 of the Act.

Upon grant of licence, entity that undertakes the project is

required to be empowered with certain rights and powers in

order to physically implement the project which are

contained in the Telegraph Act, 1885 and may be conferred

on licensee in terms of Section 164 of the Act, 2003.

9.5 That keeping in mind the prevailing circumstances

and considering the exigencies of providing effective

governance, the powers under Sections 68 and 164 of the

Act, 2003 were delegated by respondent No.41-Ministry of

Power in favour of respondent No.42 -CEA by an order

dated 12.02.2015. Pursuant to this it was CEA that was

authorised to grant prior approval under Section 68 of the

Act and orders under Section 164 of the Act. The CEA is a

statutory body established under Section 70 of the Act,

2003 consisting of technically skilled members.

- 19 -

9.6 That on 18.01.2019 at the request of REC,

respondent No.42-CEA granted prior approval under

Section 68 of the Act in favour of the appellant. The

appellant was also granted a licence under Section 14 of

the Act, 2003 to act as a transmission licensee and thereby

implement the project. The said licence was granted on

24.01.2020. Pursuant to grant of licence by the Central

Electricity Regulatory Commission, the appellant also

sought grant of orders under Section 164 of the Act

conferring upon it the powers of telegraph authority under

the Telegraph Act, 1885 enabling it to undertake physical

implementation of the project. That in the course of the

proceedings conducted for consideration of grant of orders

under Section 164 of the Act, various paper publications

were carried out seeking observation, representations on

the proposed transmission route from general public within

two months of the publication. Appellant published notice

in the local newspapers dated 13.03.2020 in New India

Express, Hosa Digantha, Vartha Bharati, Chandrika, Kerala

Kamudi. All queries received within time were addressed to

the satisfaction of CEA. The respondents 1 to 40 did not

file any objections within the time prescribed. However,

some baseless and belated communications were addressed

- 20 -

by the respondents 1 to 40 to the Chief Minister,

Government of Karnataka and not to the appellant.

9.7 The appellant has also finalized the route and

alignment for installation of overhead lines and these were

already submitted in relevant proceedings. Various steps

towards completion of the project including application to

the Central Government under Section 2 of the Forest

(Conservation) Act, 1980 for diversion of fresh forest area

and proceedings for grant of permission was also initiated.

9.8 That the appellant has incurred significant cost in

excess of Rs.418 crores and continues to incur monthly cost

of Rs.60 lakhs. That the respondents 1 to 40 being the writ

petitioners sought to scuttle the project on the ostensible

basis of they being agriculturists in Bantwal Taluk of

Dakshina Kannada Taluk and that the project would pass

through their lands thereby affecting their rights.

10. Based on the aforesaid facts Sri.Srinivasan

Raghavan, learned Senior counsel appearing for the

appellant submitted that;

- 21 -

10.1 Power under Section 68 of the Act, 2003 is to

grant permission for installation of overhead transmission

lines. The power under Section 164 of the Act, 2003 is to

confer the status of "telegraph authority" on licensees

under the Act to enable them to take steps to complete the

work. Thus, the aforesaid powers as such on their face are

executive/administrative in nature and are not powers of

legislative in nature as they do not entail any power to

frame or enact laws. That the Central Government was not

the delegate of power under the Act and CEA is not the

sub-delegatee. That the Act, 2003 itself confers power on

the Central Government and the power was conferred and

not delegated. In any event in terms of Article 73(1)(a) of

the Constitution of India, the executive power of the Union

(Central Government) extends to all subjects over which

Parliament has power to make laws. That the Central

Government is entitled to exercise such power under the

Act by virtue of its status under the Constitution of India

and is not "delegate" of legislature. That the power under

Section 164 of the Act, 2003 is entirely ministerial in

nature only serves to confer powers under the Telegraph

Act, 1885 on a public officer, licensee or electricity supplier,

- 22 -

which power in many cases require for physical

implementation of the project.

10.2 Alternatively he submitted that even if it is

considered the powers under Sections 68 and 164 were

decision making power, there was no bar in law to delegate

such powers.

10.3 He further submitted that learned Single Judge

ought not to have embarked on testing the validity of

delegation. That learned Single Judge failed to consider

respondent No.42-CEA is established under Section 70 of

the Act, 2003 and is consisting of persons with specialised

technical qualifications, and their involvement in

administrative and ministerial functions such as functions

under Sections 68 and 164 of the Act, 2003 would serve

the purpose of the Act, 2003. That learned Single Judge

failed to note that Section 73 of the Act, 2003 itself

permitted the Central Government to direct and assign its

functions to CEA and the delegation of powers under

Sections 68 and 164 of the Act, 2003 were infact directions

well within the scheme of Act and specifically enabled by

Section 73 of the Act, 2003. That Sections 68 and 164 are

functions provided under the Act and they could have been

- 23 -

discharged by CEA. Thus, delegation of powers to CEA

were not only expressly provided for by the Act, 2003 but

were also well within its scope and object. In support of his

submissions learned Senior counsel relied upon the

following authorities:

1. N.G. PROJECTS LTD., V. VINOD KUMAR JAIN (2022) 6 SCC 127, PARA 14, 19, 23

2. SIDHARTHA SARAWGI V. BOARD OF TRUSTEES PORT OF KOLKATA (2014) 16 SCC 248

3. BARIUM CHEMICALS LTD., V. THE COMPANY LAW BOARD, 1966 SUPP SCR 311

4. M. UDAYAKUMAR VS. THE GOVERNMENT OF TAMIL NADU, REPRESENTED BY ITS PRINCIPAL SECRETARY, ENERGY DEPARTMENT, SECRETARIAT, CHENNAI - 600 009.

5. GODREJ SARA LEE LTD V. EXCISE AND TAXATION OFFICER CUM ASSESING AUTHORITY AND OTHERS (2023) SCC ONLINE SC 95

6. BIRENDRA KUMAR DEORAH V. ASSAM ELECTRICITY GRID CORPORATION LTD AND OTHERS (2020) 1 GAUHATI REPORTS 646

7. SAHNI SILK MILLS (P) LTD V. EMPLOYEES STATE INSURANCE CORPORATION (1994) 5 SCC 246 PARA 5

11. In response Sri. Sridhar Prabhu, learned counsel

appearing for respondents 1 to 40/original petitioners

submitted that:

11.1 Under Section 68 of the Act, 2003 power vested

with the Appropriate Government is statutory in nature and

- 24 -

same cannot be delegated, if it is done, the Central

Government would be denuded of its power. That the

respondent No.42-CEA acted arbitrarily by granting prior

approval to the project without giving opportunity of

hearing to any of the occupants of the land including the

respondents 1 to 40 over which the overhead lines of the

project are going to pass through by installation of

proposed towers. Thus, he submits there is complete

violation of principles of natural justice before granting

approval under Section 68 of the Act. In support of the

said submission, learned counsel relied upon Judgment of

Division Bench of Gujarat High Court in Jaisingh

Parshottambhai Patel Vs Essar Power Transmission

Company Limited in Special Civil Application

No.10284/2013, wherein at paragraph 10(b) it is held

that:

"When an application is made to get a licence for laying down the transmission line, the route for transmission lines is to be provided at the time of applying for licence. The public notice is required to be published in the newspaper having circulation in the area describing the various parcels of the land through which the line is to pass and the map should also be made available to the objector for inspection if any person is so desirous."

11.2 Learned counsel for the respondents 1 to 40

also submitted that even at the stage of proposal at the

- 25 -

35th Meeting of SSCPS held on 04.01.2013 there were

opposition by the then Karnataka State Electricity Board

who requested to modify the proposal on the issue of

feasibility. That even the respondent No.43- KPTCL was

asked to examine the proposal and to inform respondent

No.42-CEA so that the matter could be taken up for further

study and discussion. That without considering the

objections raised by the KPTCL and without even

considering the alternatives proposed project was

approved. Learned counsel taking through the provisions of

the Act, 2003 more particularly sub-section (2) of Section

68 of the Act, 2003 submitted that there is no notification

published as required under Section 176 of the Act, 2003.

That in the absence of any power to delegate, Central

Government cannot direct respondent No.42-CEA to

perform its functions and duties.

11.3 Learned counsel for the respondents 1 to 40

bringing to the notice to this Court order dated 09.06.2023

issued by the Government of India, Ministry of Power

whereby the power for approval under Sections 68 and 164

of the Act, 2003 which was delegated to Chairperson of CEA

(as per Annexure-A impugned in the writ petition) has been

- 26 -

re-vested with the Joint Secretary (Transmission), Ministry

of Power, submitted that in view of the said order all the

actions rendered by respondent No.42-CEA have become

redundant thus justifying the order passed by the learned

Single Judge. Hence, seeks for dismissal of the appeal.

12. Sri.Shanthi Bhushan, learned Deputy Solicitor

General of India justifying the order at Annexure-A to the

writ petition conferring power with the Chairperson of CEA

submitted that such an act is in line with the Government of

India (Allocation of Business) Rules 1961. In that referring

to paragraph 4 of the order dated 14.01.1961 under the

heading "Allocation of Departments among Ministers", it is

provided as under:

(3) Notwithstanding anything contained in sub- rule (1) or sub-rule(2), the President may, on the advice of the Prime Minister, -

(a) associate in relation to the business allotted to a Minister under either of the said sub-rules, another Minister or Deputy Minister to perform such functions as may be assigned to him; or

(b) entrust the responsibility for specified items of business affecting any one or more than one Department to a Minister who is in charge of any other Department or to a Minister without Portfolio who is not in charge of any Department.

- 27 -

12.1 He also referred to the said rules at page 141

under the heading "Ministry of Power" wherein at

paragraph 4 the powers and functions of the Ministry are

mentioned. He also referred to Central Secretarial Manual

of Office Procedure and referred to Chapter III under the

heading "Structure of the Government of India" and

submitted that the concerned Ministry/Department is

responsible for formulation of policies of the Government in

relation to subjects allocated to it under Allocation of

Business Rules. He also referred to the power to issue

executive directions that are required for implementation of

policies from time to time. Thus, he submitted that the

impugned order at Annexure-A is not a "delegation of

power" but merely a "direction" for implementation of

provisions and policies which power is vested with the

respective Ministry and Department. He also submitted

that there is doctrine of "implied delegation" and the word

"Direct" found in the provisions of law have to be read and

understood as "implied delegation".

13. Ms.Nayantara, learned counsel appearing for

respondent No.43 -KPTCL submitted that KPTCL has never

opposed the project at any time as contended by the

- 28 -

learned counsel for respondents 1 to 40. Drawing

attention of this Court to Annexure-Q produced at page

No.345 of the appeal memo being a communication dated

20.06.2015 issued by KPTCL to the member (Power

Systems) Central Electricity Authority, New Delhi, she

submitted that the said document would refer to the

decision to implement the impugned project. She also

referred to a memo filed by respondent No.43 produced at

page No.298 volume IV clarifying the stand of KPTCL and

disputing the contention of the respondents 1 to 40 that

KPTCL had opposed installation of overhead transmission

line. She submitted that Annexure-Q dated 20.06.2015

being relied upon by the respondents 1 to 40 does not

support the case of the respondents 1 to 40. She

submitted that the views of DISCOMS set out in Annexure-

Q is an appraisal of the flow of power in the event of

subject transmission line is erected namely that the Hassan

Line will be under utilized and overloading Nagamangala

line. That the said stance cannot be construed as

opposition to the impugned project. She also referred to

summary of propositions placed in the writ petition on

behalf of respondent No.43-KPTCL on the points of law.

Thus, she seeks for allowing of the appeal.

- 29 -

14. Heard learned counsel for the parties. Perused

the records.

15. Though the grievance of respondent Nos.1 to

40 in the writ petition is that they being owners of

agricultural land would be deprived of their rights in the

event of implementation of the intended project, have

incidentally raised the question with regard to validity or

otherwise of the exercise of power by respondent No.42-

CEA under Sections 68 and 164 of the Act, 2003 contending

that there is no provision under the Act, 2003 for delegation

of such power by the respondent No.41-Central

Government on respondent No.42-CEA. While it is the

contention of the appellant that the grievance of the

respondents 1 to 40 ought to have been with regard to

their right for appropriate compensation under relevant law

for utilization of their land by the authorities for installation

of power transmission lines, instead of questioning the

process of granting approval by the respondent No.42-CEA

under Section 68 of the Act, 2003.

- 30 -

16. In order to appreciate the rival contentions of

the parties with regard to legality or otherwise of the

impugned order passed by the learned Single Judge it is

necessary to refer to the relevant provisions of the Act,

2003 which are at issue, they are extracted hereunder;

68. Overhead lines.-(1) An overhead line shall, with prior approval of the Appropriate Government, be installed or kept installed above ground in accordance with the provisions of sub- section (2).

(2) The provisions contained in sub-section (1) shall not apply-

(a) in relation to an electric line which has a nominal voltage not exceeding 11 kilovolts and is used or intended to be used for supplying to a single consumer;

(b) in relation to so much of an electric line as is or will be within premises in the occupation or control of the person responsible for its installation; or

(c) in such other cases, as may be prescribed."

17. Perusal of the aforesaid provision reveal that

overhead line shall be installed above the ground with the

prior approval of the Appropriate Government. "Appropriate

Government" is defined under Section 2(5) of the Act,

2003. In the factual context of the present case, it is the

Central Government. Thus, the authority to grant approval

under Section 68 of the Act, 2003 even as rightly taken

note of by the learned Single Judge is the Central

Government.

- 31 -

18. Annexure-A to the writ petition is an order

dated 12.02.2015 purporting to delegate the powers of

granting approval under Sections 68 and 164 of the Act,

2003 to the Chairperson of CEA. The order is extracted

hereunder;

ANNEXURE: A

No.4/14/2014-PG Government of India Ministry of Power Shram Shakti Bhawan, Rafi Marg, Tele Fax 01123730264 ORDER New Delhi, dated 12thFebruary, 2015 Subject: Delegation of powers for (1) approval under provision of Section 68 and Section 164 of the Electricity Act, 2003; and (ii) approval of transmission schemes to be implemented through Tariff Based Competitive Bidding (TBCB) route.

The undersigned is directed say that the Hon'ble Minister of State for Power (Independent Charge) has approved the delegation of powers for the following:

i) Power for approval under Section 68 of the Electricity Act, 2003, presently vested with Joint Secretary (Transmission), Ministry of Power, is delegated to Chairperson, CEA.

ii) Power for approval under 164 of the Electricity Act, 2003, presently vested with Joint Secretary (Transmission), Ministry of Power, is delegated to Chairperson, CEA.

iii) Power to approve the schemes under tariff based competitive bidding (TBCB) framework, which is presently vested with Chairperson, Central Electricity Authority, will now be exercised by Secretary, Ministry of Power.

(S. Venkateshwarlu) Under Secretary to the Government of India

- 32 -

19. The primary contention of the respondents 1 to

40 which is accepted by the learned Single Judge is that the

Central Government in the absence of any power to

delegate could not direct the respondent No.42-CEA to

performs its functions and duties under Section 68 of the

Act.

20. Learned Single Judge has referred to clause (a)

(b) (c) of sub-Section (2) of Section 68, more particularly

sub-clause (c) to come to the conclusion that Central

Government has not issued a notification published in the

Official Gazette dispensing with the provisions contained in

sub-Section (1) of Section 68 of the Act, 2003 in the cases

other than those enumerated in the clause (a) and (b) of

sub-Section (2) of Section 68 of the Act, 2003 as specified

under Section 176 (f) of the Act, 2003. Further, learned

Single Judge has held that the order dated 12.02.2015 at

Annexure-A delegating the power to respondent No.42-CEA

to exercise power under Section 68 and 164 of the Act,

2003 is not a notification published in the official gazette by

the Central Government under Section 176 of the Act,

- 33 -

2003. Thus in essence, learned Single Judge is of the view

that since a notification has not been published in the

official gazette by the Central Government, the delegation

of power is inappropriate. This reasoning is based on the

definition of term "Notification" defined under Section 2(46)

of the Act, 2003 and the term "Prescribed" as defined under

Section 2(52) of the Act, 2003 to mean prescribed by rules

made by the Appropriate Government under the Act, 2003.

Further learned Single Judge has referred to Section 73 of

the Act, 2003 and referring to the said provision which

specifies that the authority namely, CEA shall perform such

functions and duties as the Central Government may

prescribe or direct and in particular to "discharge of other

functions as may be provided under this Act". Having

referred to the aforesaid two terms namely, "Notification"

and "Prescribed" and the relevant provision of Section 73

learned Single Judge has made reference to Section 176 of

the Act, 2003 which provides the Central Government to

make rules and has thus come to the conclusion, that since

the term "prescribed" appears in these provisions, the same

ought to have been formulated in the form of rules

dispensing with the provisions contained in sub-section (1)

of Section 68 and duly notified and in the absence of

- 34 -

issuance of such notification the delegation of power was

illegal.

21. To appreciate the above reasoning of the

learned Single Judge it is appropriate to advert to Sections

70 and 73 of the Act, 2003. Section 70 provides for

constitution of Central Electricity Authority which is

respondent No.42 herein. Section 73 which defines

functions and duties of CEA, impliedly provides for

delegation of power and such delegation of power are

permissible under law.

Section 70 reads thus:

70. Constitution, etc., of Central Electricity Authority :- (1) There shall be a body to be called the Central Electricity Authority to exercise such functions and perform such duties as are assigned to it under this Act.

(2)....

(3)....

(4).....

(5) The Members of the Authority shall be appointed from amongst persons of ability, integrity and standing who have knowledge of, adequate experience and capacity in, dealing with problems relating to engineering, finance, commerce, economics or industrial matters, and at least one Member shall be appointed from each of the following categories, namely.-

(a) engineering with specialisation in design, construction, operation and maintenance of generating stations;

- 35 -

(b) engineering with specialisation in transmission and supply of electricity;

(c) applied research in the field of electricity;

(d) applied economics, accounting, commerce or

finance.

Section 73 of the Act, 2003 is extracted hereunder;

"73. Functions and duties of Authority.-The Authority shall perform such function and duties as the Central Government may prescribe or direct, and in particular to-

(a) advise the Central Government on the matters relating to the national electricity policy, formulate short-term and perspective plans for development of the electricity system and co-ordinate the activities of the planning agencies for the optimal utilisation of resources to sub serve the interests of the national economy and to provide reliable and affordable electricity for all consumers;

(b) specify the technical standards for construction of electrical plants, electric lines and connectivity to the grid;

(d) specify the Grid Standards for operation and maintenance of transmission lines;

(e) specify the conditions for installation of meters for transmission and supply of electricity;

(f) promote and assist in the timely completion of schemes and projects for improving and augmenting the electricity system,

(g) promote measures for advancing the skill of persons engaged in the electricity industry;

(h) advise the Central Government on any matter on which its advice is sought or make recommendation to

- 36 -

that Government on any matter if in the opinion of the Authority, the recommendation would help in improving the generation, transmission, trading, distribution and utilisation of electricity.

(i) collect and record the data concerning the generation, transmission, trading, distribution and utilisation of electricity and carry out studies relating to cost, efficiency, competitiveness and such like matters;

(j) make public from time to time the information secured under this Act, and provide for the publication of reports and provide for the publication of reports and investigations;

(k) promote research in matters affecting the generation, transmission, distribution and trading of electricity;"

l) carry out, or cause to be carried out, any investigation for the purposes of generating or transmitting or distributing electricity;

m) advise any State Government, licensees or the generating companies on such matters which shall enable them to operate and maintain the electricity system under their ownership or control in an improved manner and where necessary, in co- ordination with any other Government, licensee or the generating company owning or having the control of another electricity system;

n) advise the Appropriate Government and the Appropriate Commission on all technical matters relating to generation, transmission and distribution of electricity; and;

(0) discharge such other functions as may be provided under this Act".

22. It may not be out of place to refer to Section 75

of the Act, 2003 which provides for directions to be issued

by the Central Government which reads as under:

- 37 -

Section 75.- Directions by Central Government to authority.-(1)In the discharge of its functions, the authority shall be guided by such directions in matters of policy involving public interest as the Central Government may give to it in writing.

(2) If any question arises as to whether any such direction relates to a matter of policy involving public interest, the decision of the Central Government thereon shall be final.

23. The scheme of the Act, 2003 as seen in its

preamble is to consolidate the law relating to generation,

transmission, distribution, trading and use of electricity and

generally for taking measures conducive to development of

Electricity industry, promoting competition therein,

protecting interest of consumers and supply of electricity to

all areas, rationalisation of electricity tariff, ensuring

transparent policies regarding subsidies, promotion of

efficient and environmental benign policies, constitution of

Central Electricity Authority, Regulatory Commission and

establishment of Appellate Tribunal and matters connected

therewith are incidental thereto.

24. A combined reading of the preamble of the Act,

2003 with Sections 70, 73 and 75 makes it clear that the

very object of constituting the Central Electricity Authority-

respondent No.42 is apart from being in furtherance to the

- 38 -

object of the Act, is to assign with the functions and

responsibilities in carrying out the object of the Act. It is in

this regard Section 73 contemplate respondent No.42-CEA

to perform such functions and duties as the Central

Government may "prescribe" or "direct". Though several

functions have been enumerated therein in the context of

the facts of the present case it is necessary to focus on

functions defined at clause (b) of Section 73 namely,

specify the technical standard for construction of

electrical plants, electrical lines and connectivity to

the grid and clause (c) of Section 73 specify the safety

requirement for construction, operation and

maintenance of electrical plants and electrical lines

and clause(0) discharge such other functions as may be

provided under this Act.

25. Thus, by the very scheme of the Act the

respondent No.42 -CEA is required to provide advise and

specification to the Central Government in respect of the

subject referred to in clauses (b) and (c) of Section 73

amongst others.

- 39 -

26. Section 68 of the Act, 2003 confers the Central

Government with the power to grant prior approval for

installation of overhead lines. This power of granting prior

approval for installation of overhead lines which is conferred

on the Central Government under the Act, is sought to be

assigned by directing the respondent No.42-CEA to perform

the same as per Annexure-A dated 12.02.2015.

27. It is also relevant to refer that by order at

Annexure-A power for approval under Section 164 of the

Act, 2003 is also sought to be delegated to Chairperson,

CEA. Section 164 of the Act, 2003 reads as under:

"Section 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 co-ordination 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, (13 of 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."

28. Holistic reading of the aforesaid provisions of the

Act leaves no doubt that the respondent No.42-CEA is an

integral component of the entire scheme of the Act, 2003

- 40 -

and rightly Section 73 of the Act provides for a provision for

the Central Government to prescribe and direct respondent

No.42-CEA to perform such of its functions and duties.

29. It is settled law that the essential functions

envisaged under a statute shall be performed and carried

out by the authority named thereunder. However, under

administrative exigencies ministerial functions which are

ancillary to the essential functions may be assigned or

directed to be carried out by any officer or authority. In the

light of this settled position it is necessary to analyse the

nature of functions enumerated in Section 68 and Section

164 of the Act, 2003. In other words whether the functions

envisaged thereunder are essential in nature which require

to be carried out by the authority named thereunder alone

or the said functions are mere executive and ministerial in

nature capable of being directed to be carried out by any

other authority as in the instant case by respondent No.42-

CEA.

30. In the instant case, as the fact reveals that the

scheme for installation of fresh transmission infrastructure

was conceived upon the request of respondent No.46-

- 41 -

Kerala State Electricity Board. Owing to transmission

constraints it was proposed to install a high capacity 400 KV

(Quad) Double Circuit (DC) interstate Electricity

Transmission overhead lines between State of Karnataka

and Kerala known as Udupi Kasargode 400 KV (Quad)

Double Circuit (DC) interstate line along with various other

associated infrastructure creation and upgrades. The said

project has been discussed at various meetings of the

Standing Committee on Power System Planning in South

Region which is the function of CEA. Respondent No.41 -

Ministry of Power, Government of India has appointed REC

Transmission Project Company Ltd., a Government of India

Undertaking to select a bidder to undertake the project

through tariff based competitive process. Said REC Limited

incorporated the appellant as Special Purpose Vehicle to

implement the project. As could be seen the policy of

conceiving the project, its implementation and benefits have

been discussed and the appropriate Government namely

respondent No.41 has also taken steps in furtherance

thereof resulting in incorporation of the appellant being

Special Purpose Vehicle. Thus, the essential functions

required under the Act, 2003 has been performed by the

appropriate Government namely respondent No.41. In

- 42 -

furtherance to the said essential function, administrative

and executive functions, which are ancillary to the essential

function, namely laying of overhead lines as provided under

Section 68 and the activities as required under Section 164

have been directed to be performed by respondent No.42-

CEA in terms of Annexure-A.

31. Apposite at this juncture to refer to some of the

decisions of the Apex Court on the principles of process of

delegation of power in the administrative sphere.

In the case of SIDHARTHA SARAWGI V. BOARD OF

TRUSTEES PORT OF KOLKATA (2014) 16 SCC 248 the

Apex Court at paragraphs 5 to 10 has held as under;

5. Regarding delegation of non-legislative/ administrative powers on a person or a body to do certain things, whether the delegate himself is to perform such functions or whether after taking decision as per the terms of the delegation, the said agency can authorize the implementation of the same on somebody else, is the question to be considered. Once the power is conferred, after exercising the said power, how to implement the decision taken in the process, is a matter of procedure. The Legislature may, after laying down the legislative policy, confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of that policy[3]. So long as the essential functions of decision making is performed by the delegate, the burden of performing the ancillary and clerical task need not be shouldered by the primary delegate. It is not necessary that the primary delegate himself should perform the ministerial acts as well. In furtherance of the implementation of the decision already taken by the

- 43 -

primary delegate as per the delegation, ministerial or clerical tasks may be performed by authorized officers. The complexity of modern day administration and the expansion of functions of the State to the economic and social spheres have made it necessary that the Legislature gives wide powers to various authorities when the situation requires it. Today's governmental functions are a lot more complex and the need for delegation of powers has become more compelling. It cannot be expected that the head of the administrative body performs each and every task himself.

6. The issue was considered by this Court in Jamal Uddin Ahmad v. Abu Saleh Najmuddin and Another[4] in the context of the procedure for filing of the election petitions under Section 81 of the Representation of Peoples Act, 1951. It was held that the ministerial or administrative functions of the authority on whom the powers are conferred by the statute can be exercised by the authorized officers. It was held that: "13. The functions discharged by a High Court can be divided broadly into judicial and administrative functions. The judicial functions are to be discharged essentially by the Judges as per the Rules of the Court and cannot be delegated. However, administrative functions need not necessarily be discharged by the Judges by themselves, whether individually or collectively or in a group of two or more, and may be delegated or entrusted by authorization to subordinates unless there be some rule of law restraining such delegation or authorisation. Every High Court consists of some administrative and ministerial staff which is as much a part of the High Court as an institution and is meant to be entrusted with the responsibility of discharging administrative and ministerial functions. There can be "delegation" as also there can be "authorization" in favour of the Registry and the officials therein by empowering or entrusting them with authority or by permitting a few things to be done by them for and on behalf of the Court so as to aid the Judges in discharge of their judicial functioning. Authorization may take the form of formal conferral or sanction or may be by way of approval or countenance. Such delegation or authorization is not a matter of mere convenience but a necessity at times. The Judges are already overburdened with the task of performing judicial functions and the constraints on their time and energy are so demanding that it is in public interest to allow

- 44 -

them to devote time and energy as much as possible in discharging their judicial functions, relieving them of the need for diverting their limited resources of time and energy to such administrative or ministerial functions, which, on any principle of propriety, logic, or necessity are not required necessarily to be performed by the Judges. Receiving a cause or a document and making it presentable to a Judge for the purpose of hearing or trial and many a functions post- decision, which functions are administrative and ministerial in nature, can be and are generally entrusted or made over to be discharged by the staff of the High Court, often by making a provision in the Rules or under the orders of the Chief Justice or by issuing practice directions, and at times, in the absence of rules, by sheer practice. The practice gathers the strength of law and the older the practice the greater is the strength..."

7. Practical necessities or exigencies of administration require that the decision making authority who has been conferred with statutory power, be able to delegate tasks when the situation so requires. Thus, the maxim delegatus non potest delegare, gives way in the performance of administrative or ministerial tasks by subordinate authorities in furtherance of the exercise of the delegated power by an authority.

8. It would also be useful in this context to refer to the decision of this Court in Barium Chemicals Limited and Another v. The Company Law Board and Another[5] wherein it is held at paragraph 36 as follows: "...the maxim delegatus non potest delegare must not be pushed too far. The maxim does not embody a rule of law. It indicates a rule of construction of a statute or other instrument conferring an authority. Prima facie, a discretion conferred by a statute on any authority is intended to be exercised by that authority and by no other. But the intention may be negatived by any contrary indications in the language, scope or object of the statute. The construction that would best achieve the purpose and object of the statute should be adopted."

9. The Constitution confers power and imposes duty on the Legislature to make laws and the said functions cannot be delegated by the Legislature to the executive. The Legislature is constitutionally required to keep in its own hands the essential legislative functions which consist of the determination of legislative policy and its formulation as a binding rule of conduct. After the

- 45 -

performance of the essential legislative function by the Legislature and laying the guiding policy, the Legislature may delegate to the executive or administrative authority, any ancillary or subordinate powers that are necessary for giving effect to the policy and purposes of the enactment. In construing the scope and extent of delegated power, the difference between the essential and non-essential functions of the delegate should also be borne in mind. While there cannot be sub-delegation of any essential functions, in order to achieve the intended object of the delegation, the non-essential functions can be sub-delegated to be performed under the authority and supervision of the delegate.

10. Sometimes, in the plenary legislation itself, the lawmakers may provide for such sub-delegation. That is what we see under Section 21 and 34 of the Major Port Trusts Act, 1963, which we shall be discussing in more detail at a later part of this judgment.

In the case of Barium Chemicals Ltd., vs. The

company Law board and others reported in 1966 Supp.

SCR 311 the Apex Court has held as under;

36. As a general rule, whatever a person has power to do himself, he may do by means of an agent. This broad rule is limited by the operation of the principle that a delegated authority cannot be re-delegated, delegates non potest delegare. The naming of a delegate to, do an act involving a discretion indicates that the delegate was selected because of his peculiar skill and the confidence reposed in him, and there is a presumption that he is required to do the act himself and cannot re-delegate his authority. As a general rule, "if the, statute directs that certain acts shall be done in a specified manner or by certain persons, their performance in any other manner than that specified or by any other person than one of those name is impliedly prohibited." See Crawford on statutory Construction, 1940 Edn., art. 195, p. 335. Normally, a discretion entrusted by Parliament to an administrative organ must be exercised by that organ itself. If a statute entrusts an administrative function

- 46 -

involving the exercise of a discretion to a Board consisting of two or more persons it is to be presumed that each member of the Board should exercise his individual judgment on the matter and all, the members of the Board should act together and arrive at a joint decision. Prima facie, the Board must act as a whole and cannot delegate its function to one of its members.

38. But the maxim "delegatus non potest delegare" must not be pushed too far. The maxim does not embody a rule of law. It indicates a rule of construction of a statute or other instrument conferring an authority. Prima facie, a discretion conferred by a statute, on any authority is intended to be exercised by that authority, and by no other. But the intention may be negatived by any contrary indications in the language, scope or object of the statute. The construction that would best achieve the purpose and object of the statute should be adopted".

M. Udayakumar Vs. The Government of Tamil

Nadu, Represented by its principle Secretary, Energy

Department, Secretariat, Chennai - 600 009 reported

in 2017 SCC Online Mad.20143

8. Section 68 of the Indian Electricity Act, 2003, deals with the role of the first respondent in granting administrative approval for electricity high tension lines. Admittedly, such an approval has been granted by the first respondent twice, which are not put into challenge. There is a difference between an administrative order and an quasi judicial order. There is approval for the scheme already formulated by respondents 2 and 3. Therefore, the contention of the learned Senior Counsel appearing for the petitioner even before the scheme such an approval is required cannot be countenanced as it is only meant for overhead electricity high tension lines. For the petitioners lands, the said exercise is yet to be done and therefore, there is no post facto approval as alleged. Hence, the contentions 1 and 2 sought to

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be raised are hereby rejected. There need not be a separate order for every overhead line.

In the case of Sahni Silk Mills (P) Ltd. and anr v.

Employees State Insurance Corporation reported in

(1994) 5 SCC 346 the Apex Court at paragraph 5 has

held as under:

"5. The courts are normally rigorous in requiring the power to be exercised by the persons or the bodies authorised by the statutes. It is essential that the delegated power should be exercised by the authority upon whom it is conferred and by no one else. At the same time, in the present administrative set-up extreme judicial aversion to delegation cannot be carried to an extreme. A public authority is at liberty to employ agents to exercise its powers. That is why in many statutes, delegation is authorised either expressly or impliedly. Due to the enormous rise in the nature of the activities to be handled by statutory authorities, the maxim delegatus non potest delegare is not being applied specially when there is question of exercise of administrative discretionary power".

32. Thus, from the aforesaid legal position what

emerges is that under Section 73 of the Act, 2003 Central

Government is conferred with power to direct the authority

namely CEA to perform such functions and duties including

discharge of certain functions as may be provided under the

Act. Since granting of prior approval for the purpose of

installing the overhead lines is one of the functions to be

performed by the Central Government under Section 68 of

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the Act, 2003, a holistic reading of Section 73 of the Act,

2003 suggest that the Central Government is indeed

conferred with power to "direct" CEA to perform its function

contemplated under Section 68 of the Act, 2003. As held

by the Apex Court in the case of Siddharta Sarawgi

supra administrative function need not be discharged by

the primary delegate and such functions may be entrusted

to the concerned/competent authority. As held by the Apex

Court in the case of Barium Chemicals Limited supra, the

maxim delegatus non potest delegare need not be pushed

too far in the fact situation of the present case considering

the administrative exigencies involved in the matter.

33. Learned Single Judge has adverted to the issue at

hand from the prospective of validity of "delegation of

power" by respondent No.41 in favour of respondent No.42

and in that has opined that grant of prior approval under

Section 68 of the Act is in the nature of essential legislative

power. The reason which persuaded learned Single Judge

is requirement of framing of rules under Section 173 of the

Act, 2003 in respect of matter prescribed under Clause (c)

of sub-section (2) of Section 68 and issuance of notification

in the official gazette. This in our considered opinion is

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incorrect. A reading of sub-section (2) of Section 68 of the

Act, 2003 would reveal that an exception is carved out as

regards obtaining of prior approval of the Central

Government in respect of cases referred to under sub-

section (2). Clause (a) of sub-section (2) of Section 68

relates to an electric line which has a nominal voltage not

exceeding 11 kilovolts and is used or intended to be used

for supplying to a single consumer. Clause (b) relates to an

electric line as is or will be within the premises in

occupation or control of person responsible for its

installation. Clause (c) refers to the other cases which may

be prescribed. Thus, requirement of framing of rules

contemplated under clause (f) of sub-section (2) of Section

173 of the Act, 2003 is only in respect of cases to be

prescribed under clause (c) of sub-section (2) of Section

68. This cannot be read into sub-section (1) of Section 68

of the Act, 2003 to hold that until rules are framed under

Section 176 and same are notified in the notification

published in the official gazette, the powers cannot be

delegated. This in our considered view is an error in

construing the provisions referred to above and findings

arrived thereat.

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34. It may also be necessary to refer to the

Government of India (Allocation of Business) Rules, 1961

wherein Rule 4 under the heading "Allocation of

Departments among Ministers" reads as under:

(1) The business of the Government of India allocated to the Cabinet Secretariat is and, shall always be deemed to have been allotted to the Prime Minister.

(2) Subject to the provisions of sub-rule (1), the President may, on the advice of the Prime Minister, allocate the business of the Government of India among Ministers by assigning one or more departments to the charge of a Minister.

(3) Notwithstanding anything contained in sub-rule (1) or sub-rule(2), the President may, on the advice of the Prime Minister, -

(a) associate in relation to the business allotted to a Minister under either of the said sub-rules, another Minister or Deputy Minister to perform such functions as may be assigned to him; or

(b) entrust the responsibility for specified items of business affecting any one or more than one Department to a Minister who is in charge of any other Department or to a Minister without Portfolio who is not in charge of any Department."

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35. At page 196 of the said Rules, 1961 reference is

made to Ministry of Power (Vidyut Manthralaya), in that the

administration of Electricity Act, 2003 has been conferred

with the Ministry of Power.

36. Central Secretarial Manual providing for office

procedure in Chapter III under the heading "Structure of

Government of India" refers to "Allocation/transaction of

Government Business and Ministry/Departments. It is

necessary to extract the same which is as under:

CHAPTER III

STRUCTURE OF THE GOVERMENT OF INDIA

1. Government: The structure of the Government is as under.

President (executive head)

Prime Minister(Head of Council of Ministers)

Council of Ministers (Cabinet Ministers, Ministers of State & Deputy Ministers)

Executive (Secretary & subordinate functionaries)

2. Allocation/Transaction of government business

The Government of India (Allocation of Business) Rules, 1961 hereinafter referred to as

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AOB Rules (as amended from to time) allocates the business of government amongst its various Ministries/Departments. The Government of India (Transaction of Business) Rules, 1961 and hereinafter referred to TOB Rules (as amended from to time) seeks to define the authority, responsibility and obligations of each Ministry/Department, Cabinet & its Committees and the Prime Minister of India (Rule 12 of TOB). The AOB and TOB rules are available on the website of Cabinet Secretariat www.cabsec.nic.in.

3 Ministry/Department - A Ministry/Department is responsible for formulation of policies of the Government in relation to the subjects allocated to it under AOB rules and also for the execution, monitoring and review of those policies.

(i) Attached Offices provide detailed executive directions required in the implementation of the policies, as laid down from time to time by the Ministry/Department to which they are attached. They also serve as a repository of information and also advise the department on various aspects of matter dealt with by them (e.g. Central Public Works Department, Central Water Commission, Central Electricity Authority, Directorate General of Foreign Trade, Directorate General of Factory Advice & Labour Institute etc)."

37. Central Electricity Authority is an office attached

to the Ministry of Power which deals with the administration

of Electricity Act, 2003.

38. Section 73 of Act 2003 which provides for the

functions and duties of CEA as already noted confers the

power on the Central Government to direct the CEA to

perform such of its functions and duties. Thus, the scheme

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of act inherently envisages the power on the part of the

Central Government to direct the respondent No.42-CEA to

perform such of its functions and duties which in the instant

case is granting of prior approval. Annexure-A is

manifestation of execution of such power.

39. As already noted learned counsel for the

respondent Nos.1 to 40 at the time of arguments filed a

memo dated 14.06.2023 enclosing an order dated

09.06.2023. The said memo reads as under:

"MEMO FILED BY THE RESPONDENTS

1. The Hon'ble Single Judge in W.P. No. 20819 of 2021 quashed the Order dated 12th February, 2015 on the ground that the Central Government has no authority under law to delegate its powers conferred under Sections 68 and 164 of Electricity Act, 2003 (hereinafter the Act).

2. In compliance and in obeyance of the judgement passed by the Single Judge (Impugned Judgement), the Central Government withdrew its earlier Order dated 12th February, 2015 and passed a fresh Order dated 9th June, 2023 bearing No. 25- 10/27/2023-PG. A copy of the fresh Order dated 9th June, 2023 passed by the Ministry of Power, Government of India is produced herein as Annexure-R1.

3. A plain perusal of Order goes to show that the Central Government has accepted that it has no authority to delegate its powers under Section 68 and 164 of the Act.

4. In view of the above Order, the challenge to the Impugned Order passed in W.P. No. 20819 of 2021 has been rendered futile and thus the Writ Appeal has become infructuous.

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WHEREFORE, it is most humbly requested that this Hon'ble Court may be pleased to take the present memo on record in the interest of justice and equity."

40. It is also relevant to extract Annexure-R-1 to the

said memo dated 09.06.2023:

ANNEXURE-R-1 "No. 25-10/27/2023-PG Government of India Ministry of Power Shram Shakti Bhawan, Rafi Marg, New Delhi-110001 Tele: 011-23730264

New Delhi, dated 09th June, 2023

ORDER Subject: Delegation of power for approval under provision of Section 68 and Section 164 of the Electricity Act, 2003-Regarding.

The undersigned is directed to refer to this Ministry's Order No.4/14/2014-PG dated 12.02.2015 on the subject cited above and to say that Hon'ble Minister of Power & NRE has approved the delegation of powers as follows:

i. Power for approval under Section 68 of the Electricity Act, 2003 presently vested with Chairperson, CEA, is delegated to Joint Secretary (Transmission), Ministry of Power.

ii) Power for approval under Section 164 of the Electricity Act, 2003, presently vested with Chairperson, CEA, is delegated to Joint Secretary (Transmission). Ministry of Power.

2. The revised Standard Operating Procedure (SOP) for granting approval under provision of Section 68 & Section 164 of the Electricity Act, 2003 is also enclosed at Annexure-I & II respectively. Encls: As above (Deepak Rao) Director Tel: 011-23716674

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41. Thus, even going by the submission of learned

counsel for respondents 1 to 40 the position prior to the

order at Annexure-A dated 12.02.2015 and subsequent to

order at Annexure-R-1 dated 09.06.2023, extracted

hereinabove, is that the power of approval under Section

68 and Section 164 of the Act, 2003 is delegated to an

authority be it "Joint Secretary (Transmission), Ministry of

Power" or "Chairperson, CEA". In other words an authority

is nominated to carry out the functions and duties of the

Central Government as prescribed under Section 68 and

Section 164 of the Act, 2003.

42. We in the light of aforesaid factual and legal

position of the matter, are of the considered view that there

is no requirement of framing of any rules under Section 176

of the Act, 2003 merely because term "prescribed" is used

in clause (c) of sub-section (2) of Section 68 of the Act,

2003 more particularly for the reason that sub-section (2)

of Section 68 carves out an exception from the application

of sub-section (1) of Section 68 which has missed the

attention of the learned Single Judge.

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43. The learned Single Judge has at paragraph 33

of the impugned Judgment has taken note of the settled

principles of law that public interest prevails over private

interest and acquisition for public interest falls within the

ambit of doctrine of eminent domain. Learned Single Judge

has further opined that though the project in the instant

case is for the public purpose but the action of the Central

Government in delegating the authority of granting prior

approval to respondent No.42 -CEA under Section 68 of the

Act, 2003 is one without authority of law warranting

exercise of power of judicial review.

44. It is pertinent to note that the primary grievance

of the respondent Nos.1 to 40/writ petitioners is the

apprehension of they being put to inconvenience/hardship

in the event of implementation of the project. In other

words they being apprehensive of being deprived of their

right to property. Respondent Nos.1 to 40/writ petitioners

may have effective alternate remedy. They may not

therefore be heard to canvas a case with regard to exercise

of powers by respondent No.42-CEA as sought to be done

in the instant case merely by making out an arguable case.

It is appropriate to refer to enunciation of law by the Apex

Court in this context. In the case of Godrej Sara Lee Ltd. v.

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Excise and Taxation Officer-cum-Assessing Authority and

Others reported in (2023) SCC ONLINE SC 95 the Apex Court

has held as under:

4. ................

A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper.

In BIRENDRA KUMAR DEORAH V. ASSAM ELECTRICITY GRID CORPORATION LTD., AND OTHERS reported in (2020) 1 GAUHATI REPORTS 646 it is held as under:

17. A plain reading of Section 68 of the Act further goes to show that the AEGCL, as a licensee, shall have to obtain prior approval from the appropriate Government, which in this case, is the State Government of Assam, before installing an overhead line for flow of electricity with a voltage exceeding 11 KV. In other words, the licensee cannot install or keep installed any overhead lines without obtaining the prior approval of the appropriate Government. What needs to be noted herein is that the approval is with regard to installation of an overhead line and not for commencement of construction. There is no controversy about the fact that the high voltage overhead line is yet to be installed and/or operationalised in this case. Moreover, the licensee i.e. the AEGCL is a Government of Assam undertaking. That apart, the Government has already granted approval to the licensee for installation of the overhead line. If there is any omission on the part of the licensee in obtaining prior approval, it would be for the "appropriate government" to take action against the licensee. Therefore, no prejudice can be said to have been caused to the writ petitioner merely because the

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approval was granted "ex-post facto". Under the circumstances, I am unable to accept the contention of Mr. Mishra that there was no scope for the Government to grant "ex-post facto" approval in the present case.

25. There can hardly be any doubt about the fact that construction of high voltage electrical overhead lines is for the benefit of the public in general. Therefore, even assuming that the location of the Tower No.19 has resulted in some loss and injury to the interest of the petitioner, when there is a conflict between public interest at large and the interest of an individual, private interest must give way to the larger public interest. If the writ petitioners are aggrieved by any action of the respondents or their officials, which are wrongful or are actuated by malice, aimed at causing wrongful loss and injury to them, then the remedy would lie in bringing in action for damages and compensation for causing wrongful loss and injury.

26. It is settled law that no citizen can claim an indefeasible right to hold any land which is required for public purposes. In the case of Jilubhai Nanbhai Khachar and Ors. Vs. State of Gujarat and Ors. reported in 1995 Supp(1) SCC 596 the Hon'ble Supreme Court has extensively examined the right of the citizen to hold his property and held that such right of the citizen is always subject to the right of the sovereign to take it for a public purpose.

45. Thus, even in the instant case learned Senior

counsel for the appellant submitted that the alignment of

line for the purpose of installation of overhead lines is yet

to be finalised as regards the properties belonging to the

respondents 1 to 40/writ petitioners is concerned. Needless

to state if in the event, on such alignment, the proposed

project is implemented on the land belonging to the

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respondents 1 to 40/writ petitioners, they would certainly

be entitled for such remedy/relief as provided under the

relevant provisions of law. The same is not foreclosed by

disposal of the present appeal.