Telangana High Court

Acha Sambaiah vs Union Of India on 1 August, 2022

Bench: K.Lakshman

     THE HONOURABLE SRI JUSTICE K. LAKSHMAN

            WRIT PETITION No.26497 of 2022

ORDER:

This writ petition is filed declaring the action of

respondents herein in laying 400 KV High Tension Towers

and Overhead High Tension Wires from private patta lands of

the petitioners in Sy.Nos.180c/1, 180/c, 232/a2, 233/c,

233/c3, 249/ 3, 232/A2, 233, 233/c, 164/B, 177, 180,

194, 214, 180/a, 245/a, 246, 276, 245, 246, 276, 166, 173,

211, 212, 194, 177/b1, 178, 179, 180/B, 181, 166/a, 166/2

166/B/1, 166, 161/a1, 198, 207, 208, 225/b, 391/b, 194,

249, 168, 180/c/1, 258/D/1, 258/C, 258/B, 258/A, 250/

A/1, 257/A, 256/D, 256/C, 256/B, 256/A, 255/D, 255/C1,

255/C, 304, 172/2, 173/A/3, 179 covering a total extent of

Ac 83 28 guntas situated at Mogilicherla village, Geesogunda

Mandal, Warangal District without issuing any notice to them

or following due process of law and without considering their

representation dated 16.06.2022 by the respondent No.6 as

illegal, arbitrary, unjust apart from being violative of

principles of natural justice and against Article 14, 21 and

300 of the Indian Constitution and against the mandatory

provisions of Electricity Act and Rules framed thereunder

vide Rule No 3 and for a consequential direction to the

respondents herein not to lay 400 KV High Tension Towers

and Overhead High Tension Wires from the aforesaid private

patta lands of the petitioners and to remove the cement base

laid in some of their lands.

2. Heard Sri Akhil Yennamshetty, learned counsel

representing Sri Nandigam Krishna Rao, learned counsel for

the petitioner and Sri Sarang Afzul Purkar, learned counsel

appearing for 4th respondent, Sri Namavarapu Rajeshwara

Rao, learned Assistant Solicitor General of India appearing

for respondent Nos.1 to 3, learned Government Pleader for

Home appearing for respondent No.5 and the learned

Government Pleader for Revenue appearing for respondent

Nos.6 and 7.

3. The petitioners herein are owners and possessors

of the respective lands. The extent of land and Survey

numbers are mentioned in the paragraph no.3 of the writ

affidavit. Contentions of the learned counsel for the

petitionersIn the present writ petition are of two fold. (i) The

respondents have not given any notice before laying Electric

Towers, (ii) the 6th respondent has not accorded any

permission in terms of Section 16 (1) of the Telegraph Act,

1885 (for short 'the Act').

4. Whereas, Sri Sarang Afzul Purkar, learned

counsel appearing for the 4th respondent referring to the

proceedings dated 24.09.2021 vide Rc.No.F2/1415/2021

issued by the 6th respondent to the 7th respondent and the

Revenue Divisional Officer (RDO), Warangal would submit

that the 6th respondent has already accorded permission in

terms of 16 (1) of the Act with regard to entire project i.e.,

Warora-Warangal and Chilakuluripet-Hyderabad-Kurnool

765 Link being implement by Warora Kurnool Transmission

Ltd (WKTL) Row issue in Warangal District. According to

him, there is no need of obtaining permission in terms of

Section 16 (1) of the Act in respect of each individual owner of

the land with regard to subject project. He has also referred

to proceedings dated 11.01.2022 issued by Revenue

Divisional Officer, Warangal to the Assistant Commissioner of

Police, Mamnoor, Circle Inspector, Geesugona Mandal

wherein the Revenue Divisional Officer himself submitted to

provide necessary Police protection in view of the compliance

of Section 16(1) of the Act. Therefore, according to him, there

is no irregularity committed by the respondents in laying 400

KV High Tension Towers and Overhead High Tension Wires

from the respective lands.

5. In view of the said submissions, it is relevant to

refer to Section 164 of the Electricity Act, 2003 and Section

10 and 16 of the Telegraph Act, 1995.

Section 164 of Electricity Act reads as follows:

"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 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 (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".

6. Section 10 and Section 16 of the Act reads as

follows:

"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 property: 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 1 [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".

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

(1) If the exercise of the powers mentioned in section 10 in respect of property referred to in clause (d) of that section is resisted or obstructed, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them.

(2) If, after the making of an order under sub-section (1), any person resists the exercise of those powers, or, having control over the property, does not give all facilities for their being exercised, he shall be deemed to

have committed an offence under section 188 of the Indian Penal Code, 1860 (45 of 1860).

(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 the District Judge within whose jurisdiction the property is situate, be determined by him.

(4) If any dispute arises as to the persons entitled to receive compensation, or as to the proportions in which the persons interested are entitled to share in it, the telegraph authority may pay into the court of the District Judge such amount as he deems sufficient or, where all the disputing parties have in writing admitted the amount tendered to be sufficient or the amount has been determined under sub-section (3), that amount; and the District Judge, after giving notice to the parties and hearing such of them as desire to be heard, shall determine the persons entitled to receive the compensation or, as the case may be, the proportions in which the persons interested are entitled to share in it.

(5) Every determination of a dispute by a District Judge under sub-section (3), or sub-section (4) shall be final: Provided that nothing in this sub-section shall affect the right of any person to recover by suit the whole or any part of any compensation paid by the telegraph authority, from the person who has received the same."

7. Section 164 of the Electricity Act deals with

exercise of powers of Telegraph Authority in certain cases.

As per Section 10 of the Act, there is power for telegraph

authority to place and maintain telegraph lines and posts

and Section 16 of the Telegraph Act deals with exercise of

powers conferred by Section 10 of the Act and disputes as to

compensation, in case of property other than that of a local

authority. None of the Acts obligates official respondents to

issue notice to the owners of the land. Therefore, Section 16

of the Act only obligates permission to be accorded and

compensation to be paid to the owners of the land.

8. According to the petitioners, compensation in

terms of Section 16 of the Act was not paid to the owners of

the land. According to learned counsel for the 4th

respondent, the compensation was determined vide

proceedings dated 26.06.2019 of 6th respondent and the

same has to be disbursed in accordance with law.

9. In Bharat Plywood and Timber Products

Private Limited vs. Kerala State Electricity Board

Trivandrum and others1, the Kerala High Court had an

occasion to deal with the entire procedure laid down in the

Telegraph Act, 1885 and also Electricity Act, 2003. In

paragraph 29, it is held as under:-

"It is clear from the wording of Section 16 and particularly from the expression "the District Magistrate may, in his discretion", that an order will not be forthcoming automatically. A District Magistrate may in this discretion in a given case refuse or decline to pass an order that the telegraph

1969 SCC Online Ker 111

authority shall be permitted to exercise the powers. The wording is significant. The District Magistrate does not grant permission to the authority. But he orders that the authority "shall be permitted." The discretion conferred by the section on the District Magistrate is certainly a judicial discretion, and, in cases where the District Magistrate refuses to pass an order that the telegraph authority shall be permitted to exercise the powers mentioned in Section 10 it is inconceivable that the telegraph authority may notwithstanding such refusal, continue to exercise such powers. The wording of the section is thus itself indicative of the fact that in cases of resistance or obstruction the District Magistrate will have to decide whether the authority should be permitted or not to exercise the powers under Section 16 of the Telegraph Act. This necessarily means that the telegraph authority cannot override or ignore the resistance or obstruction and continue to exercise the powers under Section 10 notwithstanding such resistance or obstruction. It follows that, when an owner or occupier resists or obstructs the exercise of the power under Section 10, the telegraph authority will have to approach the District Magistrate for an order under Sub-section (1) of Section 16 and can exercise the power under Section 10 only in cases where the District Magistrate deems it fit to pass an order that he shall be permitted to do so. The power conferred by Section 10 is thus a conditional power; conditional on an order being passed under Section 16 (1) by the District Magistrate that the authority may be permitted, in case of resistance or obstruction, to exercise the power. This is so not only in regard to a telegraph authority but to the public officer or any other person authorised under the Electricity Act."

10. In R.Santhana Raj vs. The Chief Engineer,

Non-Conventional Energy Source2, the Madras High Court

2012 (1) CTC 504

had an occasion to deal with the provisions of Telegraph Act,

1885 and in paragraph No.58 laid down certain conclusions

which are relevant are reproduced hereunder:

"(vi) Section 10 of the Telegraph Act, 1885, does not contemplate "consent" or "permission" of the owner or occupier of a property, for the purpose of placing and maintaining a supply line, under, over, along or across and posts in or upon any immovable property. The only case where Section 10 contemplates permission is in respect of a property vested in or under the control or management of any local authority.

(vii) Though Section 10 of the Telegraph Act, 1885, does not make it incumbent upon the licensee to obtain permission of the owner or occupier, it does not also reduce his ownership or right of possession into something farcical. The right of the owner or occupier to resist or obstruct any act undertaken under Section 10, is recognised indirectly in Section 16(1), which requires the licensee to obtain an order of the District Magistrate, in such circumstances. A careful reading of Section 16(1) would show two things viz.,

(a) that the District Magistrate exercises his power under this Section, in his discretion and (b) that what the District Magistrate does under Section 16(1) is akin to the removal of obstruction as ordered by an Executing Court in terms of Order XXI, Rules 97 and 98 of the Code. Any resistance on the part of the owner or occupier after an order is passed by the District Magistrate becomes a punishable offence under Section 188 of the Indian Penal Code, by virtue of Section 16 (2) of the Telegraph Act, 1885.

11. The Hon'ble Apex Court in Power Grid

Corporation of India Limited vs. Century Textiles and

Industries Limited And Others3 held that prior consent is

(2017) 5 SCC 143

not required by licensee under Electricity Act, 2003 such as

appellant who is treated as telegraph authority under

Telegraph Act, 1885.

12. The above cited judgments would also reveal that

there is no need of prior consent under the Electricity Act,

2003 and there is no need to issue prior notice under the

Telegraph Act, 1885 to the owners of the land. The only

statutory obligation casted upon the 6th respondent is to

accord permission under Section 16(1) of the Act. There is no

provision to consider each and every objection/resistance of

each individual owner of the land. The 4th respondent had

already obtained comprehensive permission under Section

16(1) of the Act on 24.09.2021 from the 6th respondent. The

subsequent correspondence including the proceedings dated

11.01.2021 issued by RDO, Warangal would also reveal the