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Case Number

Writ Petition No.3713 of 2001

Attorney(S)

For the Petitioners: B.T. Sheshadri
Advocate. For the Respondents: R1 to R3
J. Ravindran
R4
G. Rajagopalan
Senior counsel for P. Rosekamalam
Advocate.

Judges

Mrs. Justice R. Banumathi

Acts

Indian Electricity Act, 1910, Electricity [Supply] Act, 1948 and Electricity Regulatory Commissions Act, 1988
SECTION 43 ELECTRICITY ACT 2003
Section 27 of Tamil Nadu Distribution Code, 2004 [for short Tamil Nadu Code, 2004].
Section 43 of Electricity Act, 2003, read with Section 27 of Tamil Nadu Act, 2004,
Section 5(1) of the Public Premises [Eviction of Unauthorized Occupants] Act, 1971.
SECTION 42 ELECTRICITY SUPPLY ACT
24.12.1988. Section 27(6) of the Tamil Nadu Electricity Distribution Code, 2004,
Section 5(1) of Public Premises [Eviction of Unauthorized Occupants] Act, 1971,
provisions of Section 12(2) of the Indian Electricity Act
Section 27(4) of the Tamil Nadu Distribution Code, 2004. 27.
provisions of Section 12 to 19 of Electricity Act
provisions of Ss.12 to 19 of the Electricity Act
Section 12(2) of the Indian Electricity Act, 1910,
SECTION 42 ELECTRICITY SUPPLY ACT
section 42. 19. Section 12(2) of Electricity Act
ARTICLE 226 CONSTITUTION OF INDIA
15. Section 27(4) of Tamil Nadu Code 2004
Sections 10 and 11 of the Telegraph Act,
Section 27(6) of Tamil Nadu Code, 2004
Section 27(4) of Tamil Nadu Code, 2004.
Section 12(2) of Electricity Act, TNEB
S.42 of the Electricity (supply) Act
ELECTRICITY SUPPLY ACT 1948
ELECTRICITY ACT 1910

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This writ petition under Article 226 challenged a communication dated 02.02.2001 issued by the Tamil Nadu Electricity Board (TNEB) (the second Respondent) which stated that for extending electricity supply to the fourth Respondent (a Church), no consent of the land owner was necessary under Section 42 of the Electricity (Supply) Act, and directed BHEL to permit erection of poles on lands that BHEL claimed (S.F.Nos.584/586 or 484/486 and related parcels). The petitioners, principally Bharat Heavy Electricals Limited (BHEL), sought quashing of that communication and forbearance against erecting poles or bringing other materials onto land claimed by the petitioners.

The factual situation is characterised by a long-running dispute over the location and title to the Church premises. The Church claims occupation of land identified by a Tahsildar certificate as S.F.No.565 (poromboke land), while BHEL maintains the premises lie in S.F.No.586, a patta land belonging to BHEL. Multiple proceedings were pending: a civil suit (O.S.No.310/1996) filed by BHEL, eviction proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (in which an Estate Officer ordered eviction under Section 5(1)), and subsequent contested proceedings before the District Judge which involved competing certificates and a Commissioner’s measurement report.

Against this background, the Church applied for electricity supply in 1996 and again in 2000 (after a TNEB circular B.P.No.25 dated 31.10.2000 that relaxed insistence on proof of ownership). BHEL objected to poles being erected across its claimed land and denied permission; TNEB responded with the impugned letter invoking Section 42 of the Electricity (Supply) Act, 1948, and directing BHEL to permit erection of poles. The petition challenges that direction.

Legal Issues Presented

Whether BHEL can validly object to giving electricity supply to the intending consumer (the fourth Respondent Church) while the question of title/ lawful occupation is sub judice.
Whether, invoking Section 42 of the Electricity (Supply) Act, 1948, the TNEB can call upon BHEL to permit the laying of poles on BHEL's land for extending supply to the fourth Respondent (i.e., whether Section 42 authorises entering BHEL premises for pole erection in the absence of a sanctioned scheme).

Arguments of the Parties

Petitioners' (BHEL) Arguments

The Church has not produced any assignment in its favour and the Commissioner’s report placing the Church in S.F.No.586 (BHEL land) is unassailable.
Since the Estate Officer and the District Judge consistently held the Church is situated in S.F.No.586 (patta land of BHEL), TNEB has no power to enter BHEL land or erect poles without BHEL's consent.
Section 42 of the Electricity (Supply) Act could be invoked only if there is a sanctioned scheme; where no sanctioned scheme exists, TNEB cannot lay poles in patta lands of BHEL by invoking Section 42.
Section 12(2) of the Indian Electricity Act, 1910, requires the consent of the owner or occupier before erecting any electric supply-line or other work on land not dedicated to public use; in the absence of consent, Section 12(2) is applicable and TNEB's action is unsustainable.

Fourth Respondent (Church) Arguments

Grant of electricity does not depend on who is the owner; the Church, until lawfully evicted, is entitled to basic amenities, and hence electricity should be provided.
Reliance was placed upon a Madras decision (reported as AIR 2004 Madras 514) to support the proposition that occupiers are entitled to basic amenities until lawful eviction.
Under Section 43 of the Electricity Act, 2003, the Distribution Licensee has a duty to supply electricity on request to owner or occupant; TNEB's concern is occupation and not the objection by BHEL.
No prior notice is required to the owner before laying poles (submission by Church); as an occupier, the Church is entitled to a supply connection subject to the Board’s rules.
The Church challenged the propriety and jurisdiction of the Estate Officer’s eviction order under Section 5(1) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
AIR 1978 Orissa 190 — The Orissa State Electricity Board and another Vs. Pyari Mohan Pattnaick and others	Holds that powers under Section 42 of the Electricity (Supply) Act (and the telegraph authorities' powers under the Telegraph Act) are available only where provision for placing/maintaining wires, poles and appliances is made in a sanctioned scheme; absent such sanctioned scheme, Sections 12 to 19 of the Indian Electricity Act apply and the Board cannot rely on Section 42 to enter private land against the owner’s wishes.	The Court applied this precedent directly to conclude that Section 42 could not be invoked where there was no sanctioned scheme for erection of poles to supply the Church, and therefore TNEB was not entitled to enter BHEL premises under Section 42.
1999 (3) MLJ 235 — S. Kannappan (died) and others Vs. The Commissioner, Tiruvottriyur Municipality, Madras and others	Affirms that Section 12(2) of the Indian Electricity Act imposes a condition of obtaining the owner’s consent before erecting poles; absence of such consent violates Section 12(2), and a court directed removal of poles and supply lines in that case.	The Court relied on this decision to support the conclusion that erecting poles in the petitioner’s land without consent was illegal and that Section 12(2) could not be circumvented by invoking Section 42 where no sanctioned scheme existed.
AIR 1955 Cal. 372 — Aswini Kumar V. Calcutta Electricity Supply Corporation	Used (as recorded in the opinion) to substantiate that Section 12(2) contemplates the consent of the owner of the land before erecting poles.	This precedent was referred to in the S. Kannappan decision (which itself was relied upon by the Court). The opinion records that S. Kannappan relied upon Aswini Kumar to support the proposition regarding consent under Section 12(2).
AIR 2004 Madras 514 — Asokan Vs. Neyveli Lignite Corporation and others	Invoked by the Church’s counsel for the proposition that electricity supply does not depend on ownership and that occupants are entitled to basic amenities until lawfully evicted.	The Court considered this authority but distinguished it on facts: in Asokan supply had been available before eviction and was sought to be restored; in the present case supply was not previously available, so that decision did not assist the Church on the point of erecting poles where owner objects.
AIR 2004 Madras 517	Quoted in the opinion for the statement: "the Petitioner is entitled to enjoy the basic amenities which were available before the order of eviction was passed".	The Court noted the principle but held it inapplicable because, unlike that reported case, electricity supply was not previously available to the Church before eviction proceedings; therefore the reported observation did not justify authorising pole erection on BHEL land.

Court's Reasoning and Analysis

The Court proceeded by identifying the relevant statutory regime and the factual matrix. Two strands of statutory law were important:

The then-applicable Board procedures and the Distribution Code: TNEB's B.P.No.61 (24.12.1988) and B.P.No.25 (31.10.2000) and Section 27 of the Tamil Nadu Distribution Code (2004) set out that an intending consumer who is not the owner must either produce owner’s consent or proof of lawful occupation together with an indemnity bond; B.P.No.25 relaxed insistence on ownership but required proof of occupation and indemnity where owner refuses consent. Section 27(4) of the Tamil Nadu Code repeats these requirements and provides for the requirement of indemnity and security deposit.
The national statutory position under the Electricity Act 2003: Section 43 cast a mandatory duty on a Distribution Licensee to supply electricity to an owner or occupant who applies, within a prescribed period, subject to payment of price and penalties for non-compliance.

The Court held that, given the ownership/occupation dispute was sub judice, TNEB need not insist on BHEL’s consent to grant a service connection to the Church so long as the Church satisfies the Board's conditions for occupants (proof of occupation and indemnity bond etc.). Therefore, on the first issue, BHEL could not prevent supply to the Church pending determination of title so long as the Church complied with the Board's terms.

On the second issue (use of Section 42 of the Electricity (Supply) Act, 1948, to justify entering BHEL land for erecting poles), the Court analysed the scope of Section 42 in context. Section 42 confers powers to enter private land for placing wires/poles where provision is made in a "Sanctioned Scheme" under Chapter V of the Electricity (Supply) Act 1948. The Court emphasised that Section 42 applies only where works are in pursuance of a sanctioned scheme prepared and sanctioned under the statutory scheme; it does not displace the consent requirements of Section 12(2) of the Indian Electricity Act, 1910, for ordinary domestic or commercial supplies which are not part of a sanctioned scheme.

Relying on precedent (The Orissa State Electricity Board v. Pyari Mohan Pattnaick, AIR 1978 Orissa 190), the Court concluded that if the complained works are not covered by a sanctioned scheme, the protections and powers flowing from Section 42 (and the telegraph authorities’ powers) are not available, and Sections 12 to 19 of the Indian Electricity Act apply. The Court therefore held that TNEB was not entitled to invoke Section 42 to enter BHEL’s land, because extending supply to the Church was not connected with any sanctioned scheme.

The Court also relied on the S. Kannappan decision (1999 (3) MLJ 235) and the Aswini Kumar line of authority to underline that Section 12(2) imposes an owner-consent requirement for erection of poles in private land when the statutory conditions for Section 42 do not exist. That reasoning led to the decision that the impugned TNEB order (directing BHEL to permit pole erection) was unlawful.

Finally, the Court reconciled the two outcomes: the Church is entitled to seek a service connection as an occupier (subject to compliance with procedural and indemnity requirements), but TNEB cannot, by invoking Section 42, enter BHEL land to erect poles for that purpose in the absence of a sanctioned scheme. The Court noted that the Church could obtain necessary way leave, licence or sanction at its own expense under Section 27(6) of the Tamil Nadu Code (and equivalent provisions under the Board’s terms) if the premises had no frontage or other practical constraints applied.

Holding and Implications

Holding: The writ petition is allowed and the impugned TNEB Order dated 02.02.2001 is quashed.

Implications and direct effects:

TNEB cannot invoke Section 42 of the Electricity (Supply) Act, 1948, to enter BHEL's land and erect poles for supply to the fourth Respondent because the proposed works are not in connection with any sanctioned scheme. Consequently, the impugned order directing BHEL to permit erection of poles is unlawful and quashed.
The fourth Respondent (the Church), being in occupation (the lawfulness of which is sub judice), is entitled to seek electricity service connection pursuant to the Board's terms and Section 43 of the Electricity Act, 2003, subject to satisfying the conditions in Section 27(4) of the Tamil Nadu Distribution Code (proof of lawful occupation or, where owner refuses consent, indemnity bond and related requirements), and subject to arranging any necessary way leave/licence at its own expense as required by Section 27(6) of the Tamil Nadu Code.
No order was made changing the rights as to ownership; the Court expressly refrained from deciding the title/eviction issues which are pending in other proceedings.
The decision does not purport to create any novel or broader precedent beyond the application of established principles: absence of a sanctioned scheme prevents invocation of Section 42 and, in such cases, the consent and procedures under Sections 12–19 of the Indian Electricity Act apply. The petition was allowed with no costs.

This summary is strictly confined to the information contained in the provided opinion and does not introduce facts or legal conclusions not present in that text.

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Bharat Heavy Electricals Ltd., Tiruchirapalli Another v. The Tamil Nadu Electricity Board Rep. By Its Chairman Others

(Petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorarified Mandamus to call for the records relating to the proceedings bearing No.AE/ O&M/E/TVKY/F.DOC/D.No.473/2001 dated 02.02.2001 and quash the communication dated 02.02.2001 issued by the second Respondent and forbear the Respondents 1 to 3 from erecting any poles or brining other materials on the land comprised in S.No.484 and 486, Thuvakudi Panchayat, Trichy belonging to the Petitioners for the purpose of supply of electricity to the fourth Respondent.)

Challenge in this Writ Petition is the letter of the second Respondent dated 2.2.2001 stating that for extension of electricity supply to the fourth Respondent, Pentecostal Mission [for short, 'the Church'], no consent of the land owner is necessary, as per Section 42 of Electricity (Supply) Act; and for direction forbearing the Respondents 1 to 3 from erecting any poles in the Petitioner premises.

2. The first Petitioner - Bharat Heavy Electricals Limited [for short 'BHEL'], is a Central Public Sector Undertaking, engaged in the manufacture of Boiler, Boiler components, Valves and Soot Blowers etc. necessary for generation of electricity and required by other industries, including the defence. The fourth Respondent Church has put up construction/sheds, for worship and other purposes. Church premises has been subject matter of dispute in various litigation. According to the fourth Respondent, it moved the District Collector, Trichy in 1994 for assignment of three acres of land in SF No.565 and the Revenue Department has identified the site and the fourth Respondent had put up construction, which is now the Church premises. The stand of BHEL is that the Church premises is in S.F.No.586, belonging to BHEL. This rival claim of the parties is the subject matter of dispute in several litigations, which we may briefly enumerate hereunder.

3. O.S.No.310/1996 was filed by BHEL, in which the fourth Respondent has filed the Written Statement and is contesting the suit. BHEL initiated proceedings under the Public Premises [Eviction of Unauthorized Occupants] Act, 1971, against the fourth Respondent for eviction, on the ground that the fourth Respondent had encroached into a portion of S.No.584 and 586, Thuvakudy Village, belonging to BHEL. Show Cause Notice was issued to the fourth Respondent and the fourth Respondent opposed the same, stating that the construction of the Church was only in S.F.No.565. After holding enquiry, in exercise of power under Section 5(1) of Public Premises [Eviction of Unauthorized Occupants] Act, 1971, the second Petitioner Estate Officer ordered eviction and directed the Church to evict the premises within fifteen days of the date of publication of the Order.

4. Order of the Estate Officer [dated 13.01.1998] was challenged before the District Judge, Trichy in C.M.A.No.3/1998. Before the District Judge, there were two Certificates, one by the District Collector stating that the Church is situated in S.F.No.586, which belongs to BHEL; and another by Tahsildar, that the Church is situated in S.F.No.565, which is a poromboke land belonging to the Government. Since there were two certificates, the learned District Judge appointed a Commissioner. After measuring the properties, Commissioner had filed the report stating that the Church is located in S.F.No.586. Needless to refer to the CRPs filed by the Church, challenging the Order of appointment of Commissioner and the Order of dismissal of the application in which the Church has sought for re-issuance of warrant to the Commissioner. After contest, C.M.A.No.3/1998 was dismissed, which is said to have been challenged. Further it was stated that worshippers in the Church have filed another suit claiming right of worship and the said suit is said to be pending. Location of the Church and right to the premises is thus the subject matter of dispute in various litigations. Therefore, this Court does not propose to express any views regarding the right of either parties.

5. In the above background, the impugned Order has to be considered. Earlier in 1996, the Church had given an application for getting electricity connection on the basis of the Certificate issued by the Tahsildar that the fourth Respondent premises lies in S.F.No.565. On receipt of objection from BHEL, supply was not extended to the fourth Respondent and the application received in 1996 and the same was treated as cancelled. The BHEL filed civil suit O.S.No.310/1996 for Permanent Injunction which is stated to be pending in Sub Court, Trichy.

6. Tamil Nadu Electricity Board [in short, TNEB], in its B.P.No.25 dated 31.10.2000 issued certain directions regarding giving supply to intending consumers. As per those instructions, TNEB need not insist on ownership of the premises, whenever supply is sought for and it is enough if the consumer gives a declaration that he is the legal occupant of the premises. Based on these instructions, the fourth Respondent again gave an application on 21.11.2000 to TNEB with the requisite declaration and sought for service connection. Since the route in which the supply to be extended to the Church passes through BHEL lands, by the letter dated 07.12.2000, BHEL was informed that the supply was going to be extended to the fourth Respondent, with request to permit erection of poles. By letter dated 18.12.2000, Petitioner refused the said request of TNEB by for erection of poles. Invoking B.P.No.25 dated 31.10.2000 and Section 42 of the Electricity (Supply) Act, TNEB has issued the impugned Order dated 02.02.2001, stating that in view of Section 42 of the Act, owner of the land cannot deny erection of poles in the property and called upon BHEL to permit TNEB to erect poles in its lands which is now challenged in this Writ Petition.

7. Submitting that no pole could be erected in the lands of BHEL, the learned Counsel for the Petitioner inter alia raised the following contentions: -

"The Church has not produced any assignment in its favour and the Commissioner's report that the Church is located in S.F.No.586 is unassailable;

"When the Estate Officer and the District Judge have consistently held that the Church is located in S.F.No.586, which is patta land of BHEL, TNEB has no power to enter into BHEL land and no pole could be erected in the lands of BHEL, by the TNEB.

"In any event, Section 42 of Electricity (Supply) Act could be invoked only if there is a Sanctioned Scheme and when there is no Sanctioned Scheme, TNEB cannot lay pole in the patta lands of BHEL.

"As per Section 12(2) of Electricity Act, TNEB cannot erect pole in a place without the consent of the owner or occupant and when no Sanctioned Scheme has been established, the impugned Order is unsustainable.

8. On behalf of the Church, the learned Senior Counsel Mr.G.Rajagopalan, has contended that grant of electricity does not depend upon as to who is the owner; and till they are lawfully evicted, the Church is entitled to have basic amenities. Reliance was placed upon AIR 2004 Madras 514 [Asokan Vs. Neyveli Lignite Corporation and others]. Contending that under Section 43 of Electricity Act, 2003, on request, TNEB has a duty to supply electricity and TNEB is only concerned with occupation of the premises and the objection raised by the BHEL, cannot be the reason for not effecting service connection. It was further submitted that no notice is required to owner before laying poles and that as an occupier, the fourth Respondent Church is entitled to electricity supply. The learned Counsel has interalia raised contention regarding the propriety of the eviction Order passed by the Estate Officer and submitted that the Estate Officer had no jurisdiction to pass eviction Order, exercising power under Section 5(1) of the Public Premises [Eviction of Unauthorized Occupants] Act, 1971.

9. This Court does not propose to express any opinion regarding the location of the Church and its ownership, since the question, as to whether the Church is in lawful occupation of premises or not is sub judice, in at least two various litigations.

10. Having regard to the contentions raised, the following two questions arise for consideration: -

(i) Can BHEL raise objection for giving electricity supply to intending consumer/fourth Respondent?

(ii) Invoking Section 42 of Electricity (Supply) Act, 1948, can TNEB call upon BHEL to permit the laying of poles, for extending supply to the fourth Respondent?

11. In the year 2000-01, terms and conditions of supply of electricity in B.P.No.61 dated 24.12.1988, was in vogue. Clause 6.00 lays down the procedure for requisition of supply of electricity and for making an application for supply of electricity and the procedure thereon. As per 6.02, an intending consumer, who is not the owner of the premises he occupies, should produce a consent letter in the form prescribed by the Board from the owner of the premises for availing supply. As per 6.03, if the owner is not available or if he refuses to give consent letter, the intending consumer should produce proof of his being in lawful occupation of the premises and also execute an indemnity bond in the form prescribed by the Board, indemnifying the Board against any losses on account of disputes arising out of effecting service connection to the occupant.

12. As per 6.04, if supply of any type of service connection in government/Poromboke Land is applied for, the intending consumer should produce 'No Objection Certificate' from an officer of the Revenue Department not below the rank of Tahsildar and also execute an Indemnity Bond in the form prescribed. Be it noted, the instructions regarding revenue poromboke are applicable only in case of domestic services in unmetered services [i.e. Free supply only]. Metered power supply to the houses constructed in poromboke land could be extended in respect of which house tax has been levied by the local body or whose occupants possess ration card as a proof of lawful occupation of the premises, subject to the execution of an indemnity bond in the form prescribed by the Board. Tenor of the terms and conditions for obtaining Service Connection is to the effect that the occupant must be in lawful occupation of the premises and also execute an indemnity bond in the form prescribed by the Board.

13. As per the terms and conditions then prevailing, the occupant can obtain service connection if he is in lawful occupation of the premises. As per B.P.No.25 dated 31.10.2000, TNEB does not insist on ownership of the land. If the owner refuses to give consent letter, the intending consumer should produce proof of his being in lawful occupation of the premises and also execute an Indemnity Board in the form prescribed by the Board, indemnifying the Board against any loss on account of the dispute arising out of effecting service connection to the occupant.

14. With the object of enacting a new Act for encouraging private sector participants in generation of power and transmission and distribution, Indian Electricity Act, 1910, Electricity [Supply] Act, 1948 and Electricity Regulatory Commissions Act, 1988 are now substituted by consolidated Act, Electricity Act 2003, Central Act 36/2003. Section 43 of the Electricity Act 2003, casts a duty on the Distribution Licensee to provide supply of electricity to the owner or occupant of any premises, when they apply for supply of electricity. Distribution licensee should supply electricity within one month. The person requiring supply of electricity shall have to pay to the Distribution Licensee such price as may be determined by the appropriate authority. If a distribution licensee fails to supply electricity within the prescribed period, the Distribution Licensee shall be liable for penalty, which may extend to Rs.1000/- for each day of penalty. Provision regarding duty to supply electricity in Section 43 is also reproduced in Section 27 of Tamil Nadu Distribution Code, 2004 [for short Tamil Nadu Code, 2004]. Thus under Section 43, a mandatory duty is cast upon the TNEB to provide supply of electricity to the owner or occupier of any premises when they apply for electricity connection.

15. Section 27(4) of Tamil Nadu Code 2004 stipulates the procedure for service connection to an intending consumer, who is not the owner of the premises. 27(4) reads as under:-

"(4) An intending consumer who is not the owner of the premises he occupies shall produce a consent letter in Form 5 of Annexure II to this Code from the owner of the premises for availing the supply. If the owner is not available or he refuses to give consent letter, the intending consumer shall produce proof of his/her being in lawful occupation of the premises and also execute an indemnity bond in Form 6 of the Annexure III to this Code indemnifying the licensee against any loss on account of disputes arising out of effecting service connection to the occupant and acceptance to pay security deposit twice the normal rate"

Even in the present case, the fourth Respondent Church, being in occupation of the premises, is not disputed. Whether the fourth Respondent is in lawful occupation of the premises is sub judice. While the matter is sub judice, TNEB need not insist on the consent of BHEL, who claims ownership of the premises. Since ownership of the premises is sub judice, BHEL cannot object to the supply of electricity to the fourth Respondent till the issue is determined and it is lawfully evicted. In view of B.P.No.25, dated 31.10.2000 [the terms and conditions then prevailing] and in view of Section 43 of Electricity Act, 2003, read with Section 27 of Tamil Nadu Act, 2004, the fourth Respondent is entitled to electricity service connection and the same cannot be objected to by BHEL.

16. The foremost question is giving service connection to the fourth Respondent. Can poles be erected in the lands of BHEL and whether TNEB can invoke Section 42 of Electricity (Supply) Act 1948. To lay poles in the lands of BHEL? For extending supply to the fourth Respondent, poles will have to necessarily be erected in BHEL's land. By the letter dated 07.12.2000, TNEB requested BHEL for grant of permission for erecting poles in BHEL premises. In the said letter, TNEB has stated

"in case of eviction by Court orders, the service connection and the erected line materials will be dismantled"

. Stating that the fourth Respondent is not a legal occupant of the property and raising strong objection for erecting poles in the property belonging to BHEL, or to take lines for supply of electricity to the fourth Respondent through the property belonging to BHEL, the Petitioner has sent letter dated 18.12.2000, to the TNEB to refrain from erecting poles or take to lines through BHEL's property.

17. Thereafter, TNEB has sent the impugned letter dated 02.02.2001 stating that as per Section 42 of the Electricity (Supply) Act, TNEB is empowered to lay poles in private lands without the land owner's consent. Under Section 42 of the Electricity (Supply) Act, certain powers in regard to entering private lands have been vested in the Board. As per Section 42, the Board shall have all powers to enter a private land for placing of any wires, poles, wall brackets, where provision is made in a Sanctioned Scheme. Entering of land for the purpose of putting up poles, wires etc. in connection with supply of electricity. Copy of Section 42 and other connected directions were enclosed with the impugned letter dated 02.02.2001. The enclosure reads as under: -

"According to Section 42 of the Electricity (Supply) Act, 1948, certain powers in regard to entering private land have been vested in the Board. According to this provision the Board shall have all powers which the Telegraph Authorities possess under Part III of the Indian Telegraph Act, 1885 with regard to the telegraph established or maintained by the Government in a sanctioned Scheme. According to Sections 10 and 11 of the Telegraph Act, the telegraph authorities are not only permitted to place and maintain the telegraph lines under, over, along or across and put posts in or upon any immovable property from time to time, but also enter into the property in which the telegraph line or post has been placed. It is therefore not obligatory on the part of the competent authority who has been conferred the power of the telegraph authority under Section 10 to issue a prior notice to the owner of the property over which electricity supply line is proposed. Thus, in all sanctioned schemes the Electricity Board has the power to enter upon private land for placing of poles, wires etc., without the consent of the owner of the land. Only in the case of areas not covered by any sanctioned scheme the consent of the District Magistrate has to be obtained if the owner objects to such entry. But while entering any premises to which energy is or has been supplied by the Board the occupier has to be merely informed of the intention by the authorised inspecting officer of the Board.

6. All officers of the TNEB are therefore informed that they can enter a private land only for the purposes mentioned in the proceeding paras. On no other occasion they can enter a private land, without the written consent of the owner. These instructions should be strictly followed.

18. Requirement of getting consent of the owner of the property before commencing work, which is provided under Electricity Act, is dispensed with under Section 42, to go ahead with the work in a Sanctioned Scheme. Section 42 occurs in Chapter V of Electricity (Supply) Act 1948, which relates to ... "The Works and Trading, Procedure of the Board and the generating Company". In Chapter V various procedures are contemplated regarding preparation and sanction of schemes [Section 28]; publication of details of scheme sanctioned in the Official Gazette and in local newspapers [Section 28(3)]; submission of schemes for concurrence of authority etc. [Section 29]; consideration by the authority and concurrence of authority to scheme submitted to it by the Board or generating Company [Ss.30 and 31]; power to alter or extend schemes [Section 32] and such other provisions. Section 42 refers to that Sanctioned Scheme which has been sanctioned as per the various provisions contained in Chapter V. Section 42 cannot be invoked for erection of poles for extending supply of domestic or commercial supply. For extending supply to domestic or commercial supply, provisions of Section 12 to 19 of Electricity Act shall alone apply to the works of the Board and not section 42.

19. Section 12(2) of Electricity Act imposes a condition to obtain consent of the owner of the land before erecting poles. Section 12(2) of the Indian Electricity Act, 1910, reads as follows: -

"(2) 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, 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, wherever or where under any electric supply-line or work has not already been lawfully laid down or placed by such licensee."

20. Admittedly, TNEB has not obtained consent of BHEL for erecting electric poles. Its request for erecting poles in BHEL premises was denied by BHEL. While so, the provisions of Section 12(2) of the Indian Electricity Act cannot be circumvented by invoking Section 42 of Electricity (Supply) Act. Referring to Section 42 and Sections 12 to 19, in AIR 1978 Orissa 190 [The Orissa State Electricity Board and another Vs.Pyari Mohan Pattnaick and others], it was held as follows:-

"So long as provision for placing, maintaining or taking any wires, poles and appliances for the transmission and distribution of electricity, as mentioned in para 1 and S.42 of the Electricity [Supply] Act is not made in the sanctioned scheme, the powers under Part III of the Electricity Act, 1910 will not be available and the provisions of Ss.12 to 19 of the Electricity Act shall apply to the works of the Board. Where the complained of electric transmission line over the suit land belonging to the plaintiffs was not in accordance with any sanctioned plan and that the complained-of alteration was done by a Superintending Engineer and the Board had not accorded any sanction for the said alteration. So the protection under S.42 of the Electricity (supply) Act was not available to the Electricity Board. The execution of the work could not be legalised retrospectively by granting ex post facto sanction. Therefore, the provisions of Ss.12 to 19 of the Electricity Act would apply to the complained of transmission line. So, the Board was not at all authorised to take the said transmission line on and over the Plaintiff's suit land, especially in view of their admitted objection and stiff opposition to that effect without following the relevant provisions of Ss.12 to 19 of the Electricity Act."

21. The above decision is applicable to the case on hand. The Board was not right in invoking Section 42 to erect poles in BHEL premises and commercial connection. Holding that erecting of poles in Petitioner's land without its consent is illegal, in 1999 (3) MLJ 235 [S.Kannappan [died] and others Vs. The Commissioner, Tiruvottriyur Municipality, Madras and others], Justice T.Meenakumari has held as under:-

"5. Learned counsel for the Petitioners relied upon a decision of Calcutta High Court reported in Aswini Kumar V.Calcutta Electricity Supply Corporation, AIR 1955 Cal.372 to substantiate his contention that Sec.2(2) of the said Act contemplates the consent of the owner of the land and in violation of the conditions imposed under Section 12(2) of the said Act, Respondents/ Electricity Board has no authority to erect the poles.

6. It is a fact that Sec.12(2) of the said Act imposes a condition to obtain consent of the owner of the land before erecting poles, and in this case, Respondents are not able to prove that they have obtained consent of the land owner. Under the above circumstances, it has to be held that there is violation of the conditions imposed under Section 12(2) of the said Act. It is a fit case wherein a direction shall go to the Respondents to remove the electric poles, service lines and the electricity supply lines connected thereto from the Petitioner's land immediately. The Writ Petition is allowed".

22. For laying of electric poles invoking Section 42, TNEB cannot enter upon BHEL premises, since extending power supply to the fourth Respondent is not in connection with any sanctioned plan, the impugned Order is liable to be quashed.

23. Contending that so long as the occupant is not evicted in accordance with law, he is entitled to enjoy basic amenities, which were available before ordering of eviction, the learned Senior Counsel has placed reliance upon AIR 2004 Madras 517. In the said case, electricity supply was sought to be disconnected and basic amenities were available even before the Order of eviction. In that context, the Court has observed that

"the Petitioner is entitled to enjoy the basic amenities which were available before the order of eviction was passed"

and ordered restoration of supply. In the present case, supply was not available earlier, but now sought to be obtained by erecting poles and hence the said decision is of no avail to the fourth Respondent.

24. I have already held that the fourth Respondent Church is entitled to have supply of electricity till it is lawfully evicted. Section 27(6) of Tamil Nadu Code, 2004 enables supply of electricity where the intending consumer's premises has no frontage. Section 27(6) corresponds to Clause 6.06 of the then B.P.No.61 dated 24.12.1988. Section 27(6) of the Tamil Nadu Electricity Distribution Code, 2004, reads as under:-

"(6) Where the intending consumer's premises has no frontage on a street and the supply line from the licensee's mains has to go upon, over or under the adjoining premises of any other person (whether or not the adjoining premises is owned jointly by the intending consumer and such other persons), the intending consumer shall arrange at his/her own expense for any necessary way leave, licence or sanction before the supply is effected. Even when the frontage is available, but objections are raised for laying lines/cables/ poles through a route proposed by the licensee involving minimum cost and in accordance with the technical norms, to extend supply to the intending consumer, the intending consumer shall arrange at his/her own expense necessary way leave, licence or sanction before the supply is effected. Any extra expense to be incurred by the licensee in placing the supply line in accordance with the terms of the way leave, licence or sanction shall be borne by the intending consumer. In the event of way-leave, licence or sanction being cancelled or withdrawn, the intending consumer shall at his/ her own cost arrange for any diversion of the service-line or the provision of any new service line thus rendered necessary"

Since the lawful occupation or otherwise of the fourth Respondent is sub judice, in view of Section 43 of the Electricity Act, 2003, the fourth Respondent is entitled to have electricity, subject to the satisfaction of the conditions under Section 27(4) of Tamil Nadu Code, 2004. It is open to the fourth Respondent intending consumer to arrange at its own expense for necessary way leave.

25. TNEB cannot enter upon BHEL premises without its consent to extend supply to the fourth Respondent. The fourth Respondent has to find out necessary way leave at its own expense. Since there is no Sanctioned Scheme, invoking Section 42 of the Electricity (Supply) Act, 1948, TNEB cannot seek to enter upon BHEL premises for erecting poles for supply of electricity to the fourth Respondent.

26. The impugned Order of TNEB dated 2.2.2001 is quashed. The fourth Respondent is at liberty to find other way leave at its own expense, as per Section 27(4) of the Tamil Nadu Distribution Code, 2004.

27. In the result, the Writ Petition is allowed. No costs.

Bharat Heavy Electri... v. The Tamil Nadu Elect...

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' (BHEL) Arguments

Fourth Respondent (Church) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Bharat Heavy Electricals Ltd., Tiruchirapalli Another v. The Tamil Nadu Electricity Board Rep. By Its Chairman Others

Comments

Bharat Heavy Electri... v. The Tamil Nadu Elect...

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' (BHEL) Arguments

Fourth Respondent (Church) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Bharat Heavy Electricals Ltd., Tiruchirapalli Another v. The Tamil Nadu Electricity Board Rep. By Its Chairman Others

Comments

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