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Deva Raj v. U.P State Electricity Board, Lucknow And Others
Summary of the Opinion (Yashoda Nandan, J.)
Factual and Procedural Background
The appellant owned an estate called Chandan Bari Estate, part of which was being developed into a residential colony. The U.P. Electricity Board was constructing a 132 KV transmission line between Yamuna Power House, Dehradun and Dehradun, and the proposed route passed through the appellant's estate. The appellant alleged that in March 1968 the Executive Engineer of the Hydel Transmission and Construction Division, Roorkee, had discussed and agreed with him on the exact route and the spots where towers would be erected, but that the respondents later marked out different places for towers Nos. 16 and 19.
On 28 March 1968 the appellant applied to the District Magistrate, Dehradun, under S. 12 of the Indian Electricity Act, 1910 (the 1910 Act), to direct alteration of the positions of those towers. That application remained undecided when the appellant filed a writ petition seeking (among other relief) a direction restraining the respondents from disregarding Ss. 12 and 18 of the 1910 Act by shifting the positions of towers Nos. 16 and 19 and seeking a direction to the District Magistrate to decide the application forthwith.
The respondents filed a counter-affidavit asserting that a scheme for the 132 KV line had been sanctioned in 1965; after partial construction a survey resulted in a proposed alteration of route approved by the Superintending Engineer, and the appellant had agreed to four towers on his land. The respondents invoked statutory powers (including S. 51 of the 1910 Act and a notification under S. 28 of the Electricity (Supply) Act, 1948 (the 1948 Act)) and S. 10 of the Telegraph Act as authorising placement of the line and towers, subject to compensation if damage occurred. Rejoinders and an amendment application with further affidavits were filed.
A learned single Judge dismissed the writ petition. The appellant appealed. By the time of the appeal the grievance was confined to tower No. 16 (tower No. 19 had been located with the appellant's agreement, on the record). The appeal was heard and is the subject of this opinion.
Legal Issues Presented
- Whether there was a sanctioned scheme for the diversion of the transmission line (as alleged by the appellant).
- Whether the respondents violated Ss. 12 and 18 of the Indian Electricity Act, 1910 in placing or shifting tower locations (in particular tower No. 16).
- Whether S. 10 of the Telegraph Act applied to the respondents (and, relatedly, whether application of that provision would violate Article 14 of the Constitution as contended in the alternative).
- Whether, under the proviso to S. 42 of the Electricity (Supply) Act, 1948, the provisions of Ss. 12 to 19 of the 1910 Act applied because the tower location was not contained in the relevant scheme.
- Whether Section 12 of the 1910 Act applied to the State Electricity Board (which is not a "licensee" as defined) by virtue of S. 26 of the 1948 Act.
- Whether the District Magistrate failed to exercise jurisdiction in respect of the appellant's application under S. 12 of the 1910 Act.
Arguments of the Parties
Appellant's Arguments
- The appellant asserted that an agreement had been reached in March 1968 with the Executive Engineer on tower locations but that the respondents shifted towers Nos. 16 and 19 from the agreed positions.
- The appellant challenged the respondents' action on several grounds as set out to the single Judge: (1) that there was no sanctioned scheme for the diversion, (2) that Ss. 12 and 18 of the 1910 Act had been violated, and (3) that S. 10 of the Telegraph Act was not applicable and, alternatively, that its application violated Article 14 of the Constitution.
- During the appeal hearing the appellant's counsel contended that because the location of the tower in question was not contained in the scheme itself, the proviso to S. 42 of the 1948 Act made Ss. 12 to 19 of the 1910 Act applicable; alternatively, S. 12 of the 1910 Act applied by virtue of S. 26 of the 1948 Act even though the State Electricity Board was not a "licensee".
- The appellant also contended that without an order of the District Magistrate the respondents acted without legal authority in constructing tower No. 16 and that the District Magistrate failed to exercise jurisdiction by not deciding the application filed before him.
Respondents' Arguments
- The respondents stated that a scheme for the 132 KV line had been sanctioned in 1965 and that after part-construction a revised route was proposed following a survey and approved by the Superintending Engineer.
- The respondents denied that the Executive Engineer entered into a concluded agreement with the appellant, and asserted that the appellant had agreed to the location of four towers on his land.
- They explained that tower No. 16 had been installed at its present location for technical reasons (to avoid an undesirable diversion) and initially maintained that tower No. 19 had not been shifted; a letter by the appellant filed with the counter-affidavit showed his approval of tower No. 19's site.
- The respondents relied on S. 51 of the 1910 Act and a notification under S. 28 of the 1948 Act, asserting that by virtue of these provisions and S. 10 of the Telegraph Act they were entitled to place the transmission line and towers on the appellant's land; they acknowledged that the appellant could claim compensation for any damage suffered and that some trees had to be removed (some removed by the appellant and some by the respondents).
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court proceeded by examining the record and the parties' submissions and applying the statutory framework spelled out in the opinion.
First, the Court noted that the appellant's effective grievance at the time of the appeal was confined to tower No. 16 because the material on record (including a letter from the appellant) showed tower No. 19 had been placed with his agreement.
The Court then addressed the appellant's contention that S. 12 of the 1910 Act (and related provisions) applied to the State Electricity Board either directly or by operation of the proviso to S. 42 of the 1948 Act or by S. 26 of the 1948 Act. The Court examined S. 51 of the 1910 Act, which permits the State Government by order to confer upon a 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, subject to conditions and the provisions of the Telegraph Act.
The opinion refers to a notification dated 31 May 1961 issued by the State Government in exercise of powers conferred by S. 51 of the 1910 Act. That notification, as recorded in the judgment, confers upon the Uttar Pradesh State Electricity Board, subject to the provisions of the Indian Telegraph Act, 1885, the power which the telegraph authority possesses under that Act with respect to placing telegraph lines and posts.
The Court then considered S. 10 of the Telegraph Act, which authorises the telegraph authority to place and maintain telegraph lines and posts on immovable property and contains a specific proviso (S. 10(d) as quoted) requiring the telegraph authority, in exercising those powers, to do as little damage as possible and to pay full compensation to all persons interested for any damage sustained (except in the limited clause referred to in the Act).
On the basis of the notification made under S. 51 of the 1910 Act, the Court concluded that the words “telegraph authority” in S. 10 of the Telegraph Act were, for the relevant purposes, to be read as including the State Electricity Board. Consequently, the Court held that the State Electricity Board had the statutory power to locate towers on the appellant's land under the Telegraph Act as applied to it by the notification.
Because S. 51 of the 1910 Act and S. 10 of the Telegraph Act operate to confer power to place the lines and simultaneously to require compensation for damage (S. 10(d)), the Court reasoned that it was not open to contend that the Board had no power to locate the towers or that the appellant's sole remedy was an application under S. 12 of the 1910 Act. The Court observed that neither S. 51 of the 1910 Act nor S. 10 of the Telegraph Act prescribes a specific procedural mechanism for determination of compensation; accordingly, it was unnecessary for the appellant to have made a formal application for a compensation determination for the Board to be obliged to consider compensation claims.
The Court further noted admissions in the respondents' affidavits and the concession by counsel for the State Electricity Board that the appellant had a right to obtain compensation for any loss suffered. The Court concluded that there was a duty on the State Electricity Board to decide the compensation payable to the appellant for any loss suffered by reason of the placement of the tower.
Finally, the Court expressed that it had no reason to suspect the respondents would fail to invite the appellant to submit a claim for compensation and to determine compensation within a reasonable time. On that basis, and given the statutory conferral of power and the compensation obligation, the Court found no merit in the appeal.
Holding and Implications
Holding: The appeal is dismissed.
Direct implications and effect on the parties:
- The State Electricity Board is held to have the statutory power (by virtue of the notification under S. 51 of the Indian Electricity Act, 1910 read with S. 10 of the Telegraph Act) to place and locate the transmission-line towers on the appellant's land.
- The appellant's remaining remedy is to claim compensation for any damage or loss suffered by reason of the construction and location of tower No. 16; the State Electricity Board has a duty to determine such compensation within a reasonable time.
- Costs are ordered as: parties shall bear their own costs; any interim order is vacated.
Broader implications: The opinion addresses the application of S. 51 of the 1910 Act and S. 10 of the Telegraph Act (as applied by the notification) to the State Electricity Board and clarifies that compensation under S. 10(d) is the remedy for affected landowners. The opinion does not set out any new procedural mechanism for determination of compensation and does not announce any broader precedent beyond the application of the statutory provisions as described above.
Yashoda Nandan, J.:— Aggrieved by the dismissal of his writ petition by a learned single Judge of this Court, the appellant has filed this special appeal. The writ petition was filed on the allegations that the appellant was the owner of an estate called Chandan Bari Estate which is claimed to have been developed into a residential colony. In the writ petition it was alleged that the U.P Electricity Board is laying a 132 KV transmission line between the Yamuna Power House Dehradun and Dehradun. The transmission line runs through the appellant's estate. The appellant's case in the writ petition was that in March 1968 the Executive Engineer of the Hydel Transmission and Construction Division, Roorkee, discussed the suitability of a route for the transmission lines through the appellant's estate and an agreement was arrived at as to the exact route that the lines would take and the spots where the towers would be constructed but subsequently the respondents have marked out places for construction of towers Nos. 16 and 19 which were at variance from those which had been agreed upon between the parties. The appellant consequently on the 28th March, 1968 applied to the District Magistrate Dehradun, under S. 12 of the Indian Electricity Act, 1910 hereinafter referred to as the 1910 Act:— to direct the respondents to alter the positions of those towers. The application had not been been disposed of till the time of the presentation of the writ petition but the respondents were continuing to construct the towers at the altered places illegally. In the writ petition it was prayed that the respondents be directed not to disregard Ss. 12 and 18 of the 1910 Act by shifting the position of towers Nos. 16 and 19 from the agreed places. A prayer was also made that the District Magistrate may be directed to decide the appellant's application forthwith.
2. A counter-affidavit was filed on behalf of the respondents stating that a scheme of construction of a 132 KV line was sanctioned in 1965. After a portion of it was constructed, it was found that its route needed to be altered. Consequent on a survey having been made, a new route was proposed which received the approval of the Superintending Engineer, Hydel Transmission Construction Circle, Roorkee. Towers Nos. 16 to 19 on this route were located on the land belonging to the appellant and the appellant had agreed to the location of four towers on his land. It was denied by the respondents that the Executive Engineer concluded any agreement with the appellant. According to the respondents, tower No. 16 had been installed at the present location with a view to avoid diversion which was not desirable for technical reasons. As far as tower No. 19 is concerned, it was asserted in the counter-affidavit initially filed that it had not been shifted from its intended site. A letter written by the appellant has been filed along with the counter-affidavit showing that the site of tower No. 19 has been agreed to and approved by him. Some trees belonging to the appellant fall on the route of the transmission line and consequently the appellant was given notice to cut them. It is alleged in the counter affidavit that the appellant removed some trees but two or three of them had to be removed by the respondents. In the counter-affidavit it has been asserted that in view of S. 51 of the 1910 Act and the notification issued under S. 28 of the Electricity (Supply) Act, 1948 — hereinafter referred to as the 1948 Act—the respondents, under S. 10 of the Telegraph Act, were entitled to place the transmission line and the towers therefor over the appellant's land and if the appellant suffered any damage therefrom he could claim compensation for the same. A rejoinder-affidavit was filed by the appellant re-asserting most of the allegations contained in the writ petition.
3. Subsequently an application was made for amendment of the writ petition. This amendment application was accompanied by an affidavit. Consequently a second counter-affidavit was filed on behalf of the respondents and a further rejoinder-affidavit was filed by the appellant.
4. When the writ petition came up for hearing before the learned single Judge, the appellant challenged the respondent's action on the following grounds as noted in the judgment:
“1. That there was no sanctioned scheme for the diversion.
2. That the respondents have violated Ss. 12 and 18 of the Electricity Act.
3. That S. 10 of the Telegraph Act was not applicable and in the alternative it violated Art. 14 of the Constitution.”
5. The contentions raised by the appellant did not find favour with the learned single Judge, who dismissed the writ petition.
6. It may be mentioned here that the appellant's grievance now is confined to tower No. 16 since from the counter-affidavit filed and the annexure thereto which is a letter written by the appellant himself it is clear that tower No. 19 was located at the spot where it is with his agreement.
7. During the hearing of the appeal, learned counsel for the appellant contended that since the location of the tower in question was not contained in the scheme itself, in view of the proviso to S. 42 of the 1948 Act, all the provisions of Ss. 12 to 19 of the 1910 Act were applicable. In the alternative, he contended that since there was no statement contained in the scheme prepared under S. 28 of the 1948 Act and published in accordance with S. 29 thereof the Telegraph Act, applied to the proceedings, the proviso to S. 42 of the 1948 Act was attracted and consequently S. 12 of the 1910 Act was applicable. S. 12 of the 1910 Act, as far as relevant for our purposes, may be extracted here.
“12. Provisions as to the opening and breaking up of streets, railways and tramways.— (1) Any licensee may from time to time but subject always to the terms and conditions of his licenee, within the area of supply, or, when permitted by the terms of his licenee to lay down or place electric supply lines without the area of supply, without that area—
(a)-(b) ……………………
(c) lay down and place electric supply lines and other works;
(d) …………………
(e) do all other acts necessary for the due supply of energy.
(2) Nothing contained in sub-s. (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:
Provided that ………………
Provided, also that if at any time the owner or occupier of any building or land on which any such support, stay or strut has been fixed shows sufficient cause, the District Magistrate or, in a Presidency town the Commissioner of Police may by order in writing direct any such support, stay or strut to be removed or altered.
(3) When making an order under sub-sec. (2) the District Magistrate or the Commissioner of Police, as the case may be, shall fix the amount of compensation or of annual rent, or of both, which should in his opinion be paid by the licensee to the owner or occupier.
(4) ……………………………………………”
8. It was urged that in view of S. 26 of the 1948 Act, Section 12 of the 1910 Act as extracted above is applicable to the State Electricity Board, even though it is not a “licensee” according to the definition of that expression contained either in the 1910 Act or the 1948 Act. It was thus contended that without an order of the District Magistrate, the respondents acted without any legal authority in constructing tower No. 16 at the spot they have done and further that the District Magistrate failed to exercise jurisdiction in not deciding the application filed before him.
9. Learned counsel for the State Electricity Board has, however, contended that S. 12 of the 1910 Act read with S. 26 of the 1948 Act had no application to the present case because by reason of the conferment of powers by the State Government on the State Electricity Board under S. 51 of the 1910 Act, the State Electricity Board acquired the right to construct the tower at the spot chosen by it even though the appellant may not consent thereto. It was contended further that by reason of S. 51 of the 1910 Act and the notification issued under S. 28 of the 1948 Act, S. 10 of the Telegraph Act was clearly attraced and the appellant was entitled to obtain compensation for damage caused to him or loss suffered by him because of the construction of the tower upon his land. There is in our opinion, force in this contention. Section 51 of the 1910 Act is in the following terms:—
“51. Exercise in certain cases of powers of telegraph authority—Notwithstanding anything in Ss. 12 to 16 (both inclusive) and Ss. 18 and 19 the State Government may, by order in writing, for the placing of electric supply lines, appliances and apparatus for the transmission of energy 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 energy to the public under this Act, subject to such conditions and restrictions (if any) as the State Government may think fit to impose and to the provisions of the Indian Telegraph Act, 1885, any of the powers which the telegraph authority possesses under that Act, with respect, to the placing of telegraph lines and posts for the purposes of a telegraph established or maintained by the Government or to be so established or maintained.”
10. There is on record the notification dated 31st May, 1961 issued by the State Government which runs as follows:—
“In exercise of the powers conferred by S. 51 of the Indian Electricity Act, 1910 (Act No. 9 of 1910), the Governor of Uttar Pradesh is pleased to confer, subject to the provisions of the Indian Telegraph Act, 1885, upon the Uttar Pradesh State Electricity Board for the placing of electric supply lines, appliances and apparatus for the transmission of energy the power which the telegraph authority possesses under the Indian Telegraph Act, 1885, with respect to the placing of telegraph lines and posts for the purposes of telegraph established or maintained by it.”
11. The telegraph authorities possess powers with respect to placing of telegraph lines and posts for the purposes of telegraph established or maintained by it under S. 10 of the Telegraph Act. According to S. 10 of the Telegraph Act, “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 immoveable property; provided that—
(a) to (c) …………………
(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.”
12. By virtue of the notification issued under S. 51 of the 1910 Act, the words “Telegraph authority” in S. 10 of the Telegraph Act will be substituted by the “State Electricity Board.” In view of the notification under S. 51 of the Act of 1910 read with S. 10 of the Telegraph Act, it is thus not possible to contend that the State Electricity Board had no power to locate towers on the appellant's land. The only right he is left with now is to obtain compensation under the notification referred to above read with S. 10(d) of the Telegraph Act. Neither S. 51 of the 1910 Act nor S. 10 of the Telegraph Act provided any procedure under which compensation shall be determined. It is thus not necessary for the appellant to have made any formal application for determination of compensation for loss, if any, suffered by him on account of the action of the respondents. Learned counsel for the State Electricity Board concedes and in fact it has also been stated in one of the affidavits filed on behalf of one of the respondents, that the appellant has a right to obtain compensation for loss, if any, he has suffered. There is a duty, in our opinion, cast on the State Electricity Board to decide the compensation payable to the appellant for the loss suffered by him.
13. We consequently have no reason to suspect that the respondents will not invite the appellant to put forward a claim for compensation for the loss which might have been suffered by him and to determine the compensation payable within a reasonable time.
14. There is in our opinion, no merit in this appeal, which is hereby dismissed. Parties shall bear their own costs. Interim order, if any, is vacated.
15. Appeal dismissed.
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