1. Introduction

The Indian Electricity Act, 1910 (hereinafter "the 1910 Act") was a foundational legislation governing the generation, supply, and use of electricity in India for nearly a century. Section 12 of the 1910 Act, titled "Provisions as to the opening and breaking up of streets, railways and tramways," played a pivotal role in delineating the powers of a licensee to lay down electric supply lines and other works, while simultaneously seeking to protect the rights of local authorities and private property owners. This article undertakes a comprehensive analysis of Section 12 of the 1910 Act, drawing upon judicial interpretations to understand its scope, limitations, and the critical requirement of consent. It will also briefly touch upon the transition to the Electricity Act, 2003, which repealed and replaced the 1910 Act, thereby altering the legal landscape for such works. The historical context provided by the objectives of the Electricity Act, 2003, which aimed to consolidate laws and promote competition (Chhattisgarh State Power Transmission Co. Ltd. v. Chhattisgarh State Electricity Regulatory Commission, APTEL, 2009; M/S Jindal Steel And Power Ltd. v. Chattisgarh State Elect. Reg. Commn., Supreme Court Of India, 2022), underscores the evolution from the framework established by the 1910 Act.

2. Statutory Framework of Section 12, Indian Electricity Act, 1910

Section 12 of the 1910 Act was structured to grant licensees the necessary powers to establish electricity infrastructure while imposing conditions to safeguard public and private interests.

Sub-section (1) of Section 12 empowered a licensee, subject to the terms of their license, to:

• Open and break up the soil and pavement of any street, railway, or tramway;
• Open and break up any sewer, drain, or tunnel in or under any street, railway, or tramway;
• Lay down and place electric supply-lines and other works;
• Repair, alter, or remove the same; and
• Do all other acts necessary for the due supply of energy.

(Sh. Surat Singh v. Municipal Corporation Of Delhi, Delhi High Court, 1988; Municipal Commissioner v. Barrackpore Electric Supply Corporation, Ltd., Calcutta High Court, 1937).

However, this broad empowerment was significantly qualified by sub-section (2). Section 12(2) stipulated:

"Nothing contained in sub-section (1) shall be deemed to authorise or empower a licensee, without the consent of the local authority or of the owner or occupier concerned, as the case may be, to lay down or place any electric supply-line, or other work in, through or against any building, or on, over or under any land not dedicated to public use whereon, whereover or whereunder any electric supply-line or work has not already been lawfully laid down or placed by such licensee."

(Bharat Heavy Electricals Ltd. v. The Tamil Nadu Electricity Board, Madras High Court, 2007; Vivek Brajendra Singh v. State Government Of Maharashtra And Others, Bombay High Court, 2012; S. Kannappan (Died) And Others v. The Commr., Tiruvottriyur Municipality, Madras And Others, Madras High Court, 1999).

The sub-section further contained provisos allowing for the fixing or alteration of supports for an overhead line on any building or land, notwithstanding the objection of the owner or occupier, if the District Magistrate (or Commissioner of Police in a Presidency-town) so directed in writing. The second proviso allowed the owner or occupier to subsequently show cause for removal or alteration of such support (Vivek Brajendra Singh v. State Government Of Maharashtra And Others, Bombay High Court, 2012; S. Kannappan (Died) And Others v. The Commr., Tiruvottriyur Municipality, Madras And Others, Madras High Court, 1999).

Other sections of the 1910 Act, such as Sections 13 to 19, detailed further obligations and powers of the licensee concerning notices, alteration of pipes or wires, new lines near sewers, opening of streets, and compensation (T.S.T.Kaznavi v. Tamil Nadu Electricity Board, Madras High Court, 2008).

3. Judicial Scrutiny of Licensee Powers and Consent under Section 12(2)

The judiciary has extensively interpreted Section 12, particularly the consent requirement under sub-section (2), to balance the operational needs of electricity licensees with the proprietary rights of individuals and the authority of local bodies.

3.1 The Imperative of Consent

Courts consistently upheld that Section 12(2) mandated the consent of the owner or occupier (or local authority, as applicable) before a licensee could lay electric supply lines or erect works on private land not dedicated to public use. In Bharat Heavy Electricals Ltd. v. The Tamil Nadu Electricity Board (Madras High Court, 2007), the court emphasized that the TNEB, having been denied consent by BHEL, could not erect electric poles on BHEL's premises, and Section 12(2) could not be circumvented by invoking Section 42 of the Electricity (Supply) Act, 1948.

Similarly, in S. Kannappan (Died) And Others v. The Commr., Tiruvottriyur Municipality (Madras High Court, 1999), the court, finding that the Electricity Board had not obtained the petitioner's consent before erecting electric poles on his land, held this to be a violation of Section 12(2) and directed the removal of the poles. This was reiterated in Vivek Brajendra Singh v. State Government Of Maharashtra And Others (Bombay High Court, 2012), where the action of a transmission company placing lines over petitioners' lands without consent was challenged under Section 12(2).

The Gauhati High Court in Assam State Electricity Board v. Rajen Kalita (Gauhati High Court, 2000), citing the Full Bench decision of the Kerala High Court in BP & T Products v. Kerala State Electricity Board (AIR 1972 Kerala 47), observed that Section 12 was an enabling provision specifying acts a licensee could do *with* consent, and did not confer power to act in the absence of consent, as such an interpretation would jeopardize landowners' interests.

3.2 Land "Not Dedicated to Public Use"

The requirement of consent under Section 12(2) was specifically tied to works on any building, or "on, over or under any land not dedicated to public use." In Municipal Commissioner v. Barrackpore Electric Supply Corporation, Ltd. (Calcutta High Court, 1937), the court dealt with a claim for rent/damages for poles fixed on roadside lands. The defense argued that the poles were on public roads dedicated to public use, for which no consent under Section 12 was necessary. The court noted that Section 12(2) limited the general power under 12(1) by requiring consent for lands "not dedicated to public use."

3.3 The Proviso: Dispensing with Consent under Specific Directions

The first proviso to Section 12(2) offered a mechanism to proceed with fixing supports for overhead lines even with the owner's objection, provided an order in writing was obtained from the District Magistrate or, in a Presidency-town, the Commissioner of Police. This provision was noted in cases like Vivek Brajendra Singh v. State Government Of Maharashtra And Others (Bombay High Court, 2012) and S. Kannappan (Died) And Others v. The Commr., Tiruvottriyur Municipality (Madras High Court, 1999). This indicated a statutory override of private objections in specific, regulated circumstances deemed necessary by an executive authority.

3.4 Consequences of Non-Adherence

Failure to obtain the requisite consent under Section 12(2) could lead to judicial intervention, including directions for the removal of unauthorized works. The decision in S. Kannappan (Died) And Others v. The Commr., Tiruvottriyur Municipality (Madras High Court, 1999) is a clear example, where the court ordered the removal of electric poles erected without the landowner's consent.

4. Section 12 in Relation to Other Statutory Provisions

4.1 Interplay with Section 51 of the 1910 Act and Telegraph Act Powers

Section 51 of the 1910 Act provided that the State Government could, by order in writing, confer upon any public officer, licensee, or any other person engaged in the business of supplying energy, any of the powers which the telegraph authority possesses under the Indian Telegraph Act, 1885, with respect to the placing of telegraph lines and posts. When such powers were conferred and exercised, the provisions of Section 12(2) regarding consent were often contended to be inapplicable.

In Ajay Munjal Memorial Trust & Ors. v. Power Grid Corporation Of India Ltd. & Ors. (Jharkhand High Court, 2007), the court noted that Section 51 of the 1910 Act allowed the government to confer Telegraph Authority powers, and similar provisions existed in Section 164 of the Electricity Act, 2003. When such powers are vested, the licensee's authority to lay lines is derived from the Telegraph Act, which has its own scheme for compensation and does not typically require prior consent in the same manner as Section 12(2) of the 1910 Act. The Gauhati High Court in Assam State Electricity Board v. Rajen Kalita (Gauhati High Court, 2000) also observed that where a licensee acts under Section 51, Section 12 would not apply, circumscribing its scope.

4.2 Distinction from Section 42 of the Electricity (Supply) Act, 1948

The relationship between Section 12 of the 1910 Act and provisions of the Electricity (Supply) Act, 1948, also came under judicial consideration. In Bharat Heavy Electricals Ltd. v. The Tamil Nadu Electricity Board (Madras High Court, 2007), it was held that the consent requirement under Section 12(2) of the 1910 Act could not be bypassed by invoking Section 42 of the Electricity (Supply) Act, 1948 (which dealt with the Board's powers for placing wires, poles, etc.), especially in the absence of a sanctioned scheme under the 1948 Act. The court cited The Orissa State Electricity Board and another Vs.Pyari Mohan Pattnaick and others (AIR 1978 Orissa 190) in this context.

5. The Transition: Repeal by the Electricity Act, 2003 and its Implications

The Indian Electricity Act, 1910, along with the Electricity (Supply) Act, 1948, and the Electricity Regulatory Commissions Act, 1998, were repealed by Section 185 of the Electricity Act, 2003. The 2003 Act introduced a new paradigm, including provisions like Section 67 (Provision as to opening up of streets, railways, etc.) and Section 164 (Exercise of powers of Telegraph Authority in certain cases).

The shift in legislation led to arguments that the consent requirement under the erstwhile Section 12(2) of the 1910 Act was no longer applicable. In P. Arimutharasu v. The Superintending Engineer (Wind Farm Project) Tamil Nadu Electricity Board (Madras High Court, 2014), the respondent Board contended that after the repeal of the 1910 Act, reliance could not be placed on Section 12(2) for prior consent, and the landowner's right was primarily to claim compensation under the new legal regime. This reflects a significant change from the emphasis on prior consent under the 1910 Act, particularly when powers akin to those under the Telegraph Act, 1885, are invoked under Section 164 of the 2003 Act.

The licensing regime itself underwent a paradigm shift. As noted in Bhoruka Power Corporation Limited. v. Bangalore Electricity Supply Company Ltd & Ors. (Appellate Tribunal For Electricity, 2019), under the 2003 Act (Section 12 read with Section 14), licensed activities are "transmission," "distribution," and "trading," differing from the "supply" focus of the 1910 Act. Furthermore, the distinct nature of Section 12 of the 1910 Act compared to provisions like Section 43 (Duty to supply on request) of the 2003 Act was highlighted in Fashion Proprietor Aswani Kumar Maity v. West Bengal Electricity Distribution Co. Ltd. (Calcutta High Court, 2009), stating that Section 12 of the 1910 Act "operated in a different field."

6. Conclusion

Section 12 of the Indian Electricity Act, 1910, served as a critical legal provision for nearly a century, balancing the need for electricity infrastructure development with the protection of private property rights and the authority of local bodies. Judicial interpretations consistently underscored the mandatory nature of consent from owners or occupiers for laying electrical works on private land not dedicated to public use, unless specific powers under provisions like Section 51 of the 1910 Act (invoking Telegraph Act powers) were exercised, or the limited exception under the proviso to Section 12(2) was applicable.

While the 1910 Act has been repealed by the Electricity Act, 2003, the jurisprudence surrounding Section 12 provides valuable insights into the historical evolution of electricity law in India and the enduring tension between public utility development and individual rights. The principles of fairness, due process, and respect for property rights, which were central to the interpretation of Section 12, continue to resonate in the contemporary legal framework, albeit through different statutory mechanisms and a greater emphasis on compensation in certain contexts under the 2003 Act.