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Bhaskara Housing (P) Ltd., Hyderabad v. Apseb, Hyderabad And Another
Factual and Procedural Background
The petitioner is a private limited company that purchased landed property in Sy. Nos. 362, 363, 365/1 at Gudur village, Bibinagar Mandal, Nalgonda District (total Ac.33-00) by registered sale deeds dated 7-9-1994. The petitioner states that those lands were converted into house sites/plots after obtaining a lay-out permission from the Gudur Gram Panchayat dated 21-8-1996.
The petitioner filed a writ petition seeking a declaration that respondents' actions in encroaching upon the petitioner's property by laying overhead electrical transmission lines and erecting towers were arbitrary and without authority of law, and sought a consequential direction to consider re-alignment of the electrical supply lines.
In response, the second respondent (APSEB) filed a counter-affidavit stating, inter alia, that a sanctioned scheme to supply electric power had been published in the A.P. Gazette on 24-8-1995 with two months for representations/objections; the lands were agricultural with no houses constructed until 2-10-1998; the scheme was published before Gram Panchayat approval of a house lay-out; Power Grid Corporation had laid a 400 KV line on the land; APSEB asserted statutory power under the Electricity (Supply) Act, 1948 to lay transmission lines on private land without individual notice; foundation work for a tower at location-87 on the petitioner's land had been completed; physical and topographical constraints made re-alignment impracticable; and compensation for damage to crops or trees could be claimed from the Board as determined by competent revenue officials.
The writ petition was heard and, after considering submissions and the factual assertions in the counter-affidavit and oral statements by the Board's counsel, the court delivered the impugned opinion and dismissed the writ petition.
Legal Issues Presented
- Whether, under Section 42(1) of the Electricity (Supply) Act, 1948, the Board may invoke the powers conferred by Part III of the Indian Telegraph Act, 1885 in relation to a sanctioned scheme that provides for laying lines and construction of towers.
- Whether the Board is required to obtain prior consent or an order from the District Magistrate under sub-section (1) of Section 16 of the Indian Telegraph Act, 1885 (as contended by the petitioner), before laying lines or constructing towers on private land when a sanctioned scheme exists.
- Whether, in the circumstances of this case, the court should order re-alignment of the transmission line or otherwise restrain the Board's works, having regard to the sanctioned scheme, notice procedure, survey, and physical/topographical constraints.
Arguments of the Parties
Petitioner's Arguments
- The petitioner's counsel relied on Section 42 of the Electricity (Supply) Act, 1948 and argued that the respondents cannot invoke Part III of the Indian Telegraph Act, 1885 unless the sanctioned scheme explicitly provides for such invocation.
- It was contended that because the petitioner had objected to laying lines over its lands, the Board was obliged to approach the District Magistrate for an order; absent a District Magistrate's order under sub-section (1) of Section 16 of the Indian Telegraph Act, 1885, the Board could not lay lines or construct towers.
- The petitioner placed reliance on the decision of the Full Bench of the Kerala High Court in Bharat Ply Wood and Timber Products Private Limited v. Kerala State Electricity Board to support its position on the need for magistrate involvement/consent procedures.
Respondent (APSEB)'s Arguments
- The Board's counsel submitted that the sanctioned scheme published in the A.P. Gazette provides for laying electric lines and construction of towers, and therefore officers of the APSEB are empowered to exercise the powers envisaged under Part III of the Indian Telegraph Act, 1885 pursuant to Section 42(1) of the Electricity (Supply) Act, 1948.
- The Board argued that the petitioner had the opportunity to object to the scheme in the two-month period following the Gazette notification (dated 24-8-1995) and did not file any representation; survey work was carried out after that period with no objection raised by the petitioner.
- The Board contended there was no alternative alignment available due to physical and topographical constraints (electrified railway track, a large irrigation tank, 400 KV line, the nearby Bibinagar village), and that a foundation for a tower (location-87) had already been completed on the petitioner's land.
- The Board also pointed out that compensation remedies exist for any damage to standing crops or fruit-bearing trees, to be determined by competent revenue officials.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bharat Ply Wood and Timber Products Private Limited v. Kerala State Electricity Board (Full Bench of Kerala High Court) | Relied upon by the petitioner to support the contention that magistrate involvement (under sub-section (1) of Section 16 of the Indian Telegraph Act, 1885) or related consent procedures are required before laying lines on private land. | The decision was invoked by the petitioner; the respondent contended the facts of the present case were distinguishable. The court's reasoning ultimately turned on statutory interpretation of Section 42(1) of the Electricity (Supply) Act, 1948 and the presence of a sanctioned scheme providing for lines and towers, rather than adopting the precedent as binding in the present facts. |
Court's Reasoning and Analysis
The court's analysis proceeded primarily by statutory interpretation of Section 42(1) of the Electricity (Supply) Act, 1948 read with the proviso to that sub-section and the referenced provisions of the Indian Electricity Act, 1910.
First, the court noted the text of Section 42(1): where a sanctioned scheme makes provision in the specified respects, the Board "shall have" for placing wires, poles, stays, apparatus and appliances for transmission and distribution of electricity all the powers which the telegraphic authority possesses under Part III of the Indian Telegraph Act, 1885. The proviso states that where a sanctioned scheme does not make such provision, the provisions of Sections 12 to 19 of the Indian Electricity Act, 1910 shall apply.
The court rejected the petitioner's argument that the Gazette notification had to explicitly declare that the Board would invoke powers under Part III of the Indian Telegraph Act, 1885. Instead, the court held that the phrase "provision in such behalf" in Section 42(1) is referable to Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910 — provisions that deal with matters such as opening and breaking up of streets, notice of new works, laying of supply-lines, overhead lines and compensation for damages.
By a cumulative reading of Section 42(1) with its proviso, the court concluded that if a sanctioned scheme provides for activities contemplated under Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910 (for example, laying of lines and construction of towers), the officers of the Board may exercise similar powers to those of the Telegraph authorities under Part III of the Indian Telegraph Act, 1885. Applying that construction to the present case — where the sanctioned scheme (published in the Gazette on 24-8-1995) provided for laying lines and construction of towers — the court held that the Board had power to invoke Part III of the Indian Telegraph Act, 1885 and that prior consent (as required under Section 12 of the Indian Electricity Act, 1910) was not necessary in those circumstances.
On factual matters, the court observed that the Board's counsel had stated (on instructions) that the scheme was published with two months for affected persons to make representations and that no representation was made by the petitioner. Although not all such factual statements appeared in the counter-affidavit, the court accepted those statements as credible. The court found it improbable that the petitioner, having purchased the land in 1994 and in view of the large scope of the 82-kilometre scheme, would have been unaware that lines might be laid across its lands. The court also noted that no objection was raised during the Board's survey in 1995 and that the foundation for tower location-87 had been completed; the petitioner had not attempted to prevent further works.
Finally, the court considered the petitioner's request for re-alignment. Although it stated that it would ordinarily have called upon the Board to consider re-alignment, the court accepted the Board's representation that no alternative alignment was feasible due to electrified railway tracks, a big irrigation tank, an existing 400 KV line and nearby Bibinagar village. The court found that interfering with the works at that stage would prejudice public interest and affect an essential public utility service.
Holding and Implications
WRIT PETITION DISMISSED.
Direct effects on the parties:
- The writ petition filed by the petitioner seeking to restrain APSEB from laying overhead transmission lines and erecting towers on the petitioner's land was dismissed.
- The court held that, because the sanctioned scheme published in the A.P. Gazette provided for laying lines and construction of towers, the Board and its officers could invoke the powers under Part III of the Indian Telegraph Act, 1885 pursuant to Section 42(1) of the Electricity (Supply) Act, 1948; prior consent as envisaged under Section 12 of the Indian Electricity Act, 1910 was not required in those circumstances.
- The court found no case for ordering re-alignment given the Board's assertions of topographical constraints and that interference would prejudice public interest in the continuity of an essential public utility service.
Broader implications:
The opinion resolves the dispute between these parties by reference to the statutory scheme and the facts of this case. The opinion does not discuss any broader precedential effects beyond its reasoning and the disposition of the petition; accordingly, the immediate consequence is the dismissal of the writ petition and the Board's ability to proceed consistent with the court's statutory interpretation and the facts found in this case. No separate order as to costs was made.
1. The petitioner is a Private Limited Company incorporated under the Companies Act. Teh petitioner-Company owns landed property in Sy.Nos. 362, 363, 365/1 situated at Gudur village, Bibinagar Mandal, Nalgonda District to an extent of Ac.33-00 having purchased the same by the registered sale deed Nos.4591/94, 4592/1/94 and 4593/I/94 dated 7-9-1994. The petitioner - claims that those lands were converted as house sites/plots after obtaining lay-out permission from the Gudur Gram Panchayat, dated 21-8-1996. The petitioner complaining that the respondent authorities of the APSEB without any notice to the petitioner proposed to lay the over-head lines above the land of the petitioner filed the writ petition praying for declaration that the action of the respondents in encroaching upon the property of the petitioner and laying overhead lines for transmission of electrical energy and putting up towers for support of the lines as arbitrary and without authority of law and for a consequential direction to the respondents to consider for re-alignment of electrical supply lines.
2. In response to Rule Nisi, the second respondent has filed counter-affidavit resisting the claim of the petitioner. In the counter-
affidavit, it is stated that sanctioned scheme was published in the A.P. Gazette dated 24-8-1995 to supply electric power for the public purpose and two months time was given in the Gazette notification for submitting any representation or objection from the interested persons; the lands in question are agricultural lands and no houses are constructed till 2-10-1998; the sanctioned scheme was published in the Gazette even before the Gram Panchayat approved the house lay-out on 24-8-1995; Power Grid Corporation of India has laid 400 KV line in the land; the APSEB has power under the Electricity (Supply) Act, 1948 to lay transmission lines for supply and distribution of electrical power for agriculture, domestic and industrial loads in any private land without giving any individual notice, there was no objection from the petitioner at the time of laying of the foundation for the tower at location-87 in the land of the petitioner; the construction of the single tower foundation in the land of the petitioner is already completed; there is no other alternative to lay the transmission line except in the present alignment due to various physical, topographical conditions at site such as electrified railway track, a big irrigation tank, 400 KV Line, Bibinagar village. However, in the counter, it is stated that if any damage is caused to the standing crops or fruit bearing trees while laving the transmission lines, compensation can be claimed by the petitioner from the Board as determined by the competent revenue officials.
3. The learned Counsel for the petitioner placing reliance on Section 42 of the Electricity (Supply) Act, 1948, contended that the respondents are not entitled to invoke Part-III of the Indian Telegraph Act, 1885 unless the sanctioned scheme provides for invocation of the powers envisaged under Part-Ill of the Indian Telegraph Act, 1885. Secondly, the learned Counsel for the petitioner contended that since the petitioner has objected to laying of the lines over its lands, the Board is obligated to approach the District Magistrate for an order, and unless the District Magistrate grants an order to lay the line, the Board cannot lay the line over the lands of the petitioner nor can it construct the towers, as mandated under the provisions of sub-section (1) of Section 16 of the Indian Telegraph Act, 1885. In support of the contention, the learned Counsel for the petitioner would place reliance on the judgment of the Full Bench of the Kerala High Court in Bharat Ply Wood and Timber Products Private Limited v. Kerala State Electricity Board, . On the other hand, learned Standing Counsel for APSEB submitted that the sanctioned scheme in question provides for laying of electric lines, construction of towers etc., and since the sanctioned scheme provides for these things, it is quite competent for the officers of the APSEB to exercise the powers conferred upon them under Part-Ill of the Indian Telegraph Act, 1885. Meeting the second contention of the learned Counsel for the petitioner, learned Standing Counsel for APSEB would argue that the facts of this case are distinguishable from the facts of the case decided by the Full Bench of the Kerala High Court. Elaborating this submission, the learned Counsel would point out that the scheme was published in the A.P. Gazette as far back as on 24-8-1995 giving two months time for the interested persons to submit their representations/ objections, if any, and the petitioner for the reasons best known to him did not file any objection, though it claims to have purchased the property in the year 1994 itself. The learned Standing Counsel would also submit that immediately after the expiry of two months time given in the notification 24-8-1995, the Board authorities caused survey, and even during the survey, no objection was raised by the petitioner, and that for all these reasons, it should be held that there is no objection or obstruction from the petitioner so as to invoke the provisions of sub-section (1) of Section 16 of the Indian Telegraph Act, 1885.
4. sub-section (1) of Section 42 of the Electricity (Supply) Act, 1948 provides that notwithstanding anything contained in Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910, but without prejudice to the requirements of section 17 of that act where provision in such behalf is made in a sanctioned scheme, the Board shall have, for the placing of any wires, poles, wall-brackets, stays apparatus and appliances for the transmission and distribution of electricity, or for the transmission of telegraphic or telephonic communications necessary for the proper coordination of the works of the Board, all the powers which the telegraphic authority possesses under Part III of the Indian Telegraph Act, 1885. Proviso to sub-section (I) of Section 42 of the said Act provides that where a sanctioned scheme does not make such provision as contemplated in subsection (1) of Section 42, all the provisions of Sections 12 to 19 of the Indian Electricity Act, 1910 shall apply to the works of the Board. There is no controversy between the parties that there exists a sanctioned scheme and that scheme was published in the A.P. Gazette dated 24-8-1995. The argument of the learned Counsel for the petitioner that the scheme as notified in the A.P. Gazette should have declared that the Board would invoke provisions under Part-Ill of the Indian Telegraph Act, 1885, and such declaration is a must to invoke those provisions is not acceptable to the Court. The phrase "provision in such behalf occurring in sub-section (1) of Section 42 of the Electricity (Supply) Act, 1948 is referable to Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910. Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910 deal with the opening and breaking up of streets, railways and tramways; notice of new works; alteration of pipes or wires; laying of electric supply-lines or other works near sewers, pipes or other electric supply-lines or works; overhead lines and compensation for damages. A cumulative reading of the provisions of sub-section (1) of Section 42 of the Electricity (Supply) Act, 1948 with that of proviso make it apparently clear that if the sanctioned scheme provides for any of the things contemplated under Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910, the officers of the Board can exercise similar powers conferred upon the authorities of the Telegraph Department under Part-III of the Indian Telegraph Act, 1885, In the instant case, since the sanctioned scheme provides for laying of lines and construction of towers, it should be held that the Board and its officers have the power to invoke the provisions of Part-III of the Indian Telegraph Act, 1885 and, therefore, prior consent is not necessary as required under Section 12 of the Indian Electricity Act, 1910.
5. Adverting to the second contention of the petitioner, suffice it to state that the facts stated by the learned Standing Counsel for Board themselves answer the contention. At the same time, I should state that all the facts stated by the learned Counsel on the basis of the instructions from the Board, arc not stated in the counter-affidavit filed by the Board. I have no good reasons to disbelieve the statements made by the teamed Standing Counsel on the basis of instructions. The sanctioned scheme was published in the A.P. Gazette as far back as on 24-8-1995 giving two months time to the affected or interested persons to make representation. Admittedly, no representation was made by the petitioner. The contention of the learned Counsel for the petitioner is that the petitioner was not aware that the lines would be laid over its lands. In such a large scheme covering 82 kilometres, it is highly incredible to believe the version of the petitioner. Be that as it may, even during the survey conducted by the officials of the Board immediately in the year 1995, no objection was raised. In the counter-affidavit filed by the respondent-Board, it is stated that foundation for the tower at location-87 is already completed. It is not a thing to be done within a day or two. Even at this stage, the writ petition was not filed nor the petitioner made any attempt to prevent the Board from proceeding with further works.
6. Despite the above reasons, in the normal course, the Court would have called upon the Board to consider the request of the petitioner for realignment of electrical supply lines, but in the counter, it is stated that there is no alternative to lay the transmission line except in the present alignment due to various physical, topographical conditions at site such as electrified railway track, big irrigation tank, 400 kv line etc. The line in question is of the length of 82 kilometres and more. Any interference at this stage will be prejudicial to the public interest and affect public utility service. No case is made out for interference.
7. In the result, the writ petition is dismissed, with no order as to costs.
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