The Power Grid Corporation Of vs Ram Naresh Singh & Ors on 9 February, 2011

Patna High Court

The Power Grid Corporation Of vs Ram Naresh Singh & Ors on 9 February, 2011
Author: S.K.Katriar
LETTERS PATENT APPEAL No.1132 of 2010
Against the order and jdugment dated 17.5.2010 passed
by Hon'ble Mr. Justice Navaniti Prasad Singh in CWJC
No. 6993 of 2010.

1. THE POWER GRID CORPORATION OF INDIA

LIMITED, through its Managing Director, having
office at Alankar Palace, Boring Road, Patna
2. The Managing Director, Power Grid Corporation,
having office at Alankar Palace, Boring Road, Patna
....Respondents/Appellants

Versus
1. RAM NARESH SINGH, son of late Bhola Nath
Singh, resident of Villae Bhurkunda, Post Office
Ankuri, Police Station Goh, District Aurangabad
(Bihar)
2. Girjesh Kumar Singh, son of late Kedar Nath
Singh, resident of village Bhurkunda, Post Office
Ankuri, Police Station Goh, District Aurangabad
(Bihar) ......Petitioners/ Respondents
3. The Bihar State Electricity Board through its
Secretary having office at Vidyut Bhawan, Bailey
Road, Patna
4. The Chairman, Bihar State Electricity Board,
having office at Vidyut Bhawan, Bailey Road, Patna
5. The District Magistrate, Aurangabad
6. The Superintendent of Police, Aurangabad
7. The Gram Panchayat Bhurkhunda through its
Panchayat Secretary, Block Goh, District
Aurangabad ....Respondents/Respondents
with

CWJC No.11393 oF 2010

In the matter of an application under Article 226 of
the Constitution of India.

SMT.SUSHILA DEVI, W/o Sri Deo Sharan Mishtri,

resident of Mohalla - Rikabganj Tikari, PS Tikari,
District - Gaya .......... ......... Petitioner
Versus
1. THE POWER GRID CORPORATION OF INDIA
LIMITED. through its Managing Director, having
office at Alankar Palace, Boring Road, Patna
2. The Managing Director, Power Grid Corporation,
having office at Alankar Palace, Boring Road, Patna
3. The Bihar State Electricity Board through its
Secretary having office at Vidyut Bhawan, Bailey
Road, Patna
4. The Chairman, Bihar State Electricity Board,

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 The Power Grid Corporation Of vs Ram Naresh Singh & Ors on 9 February, 2011

having office at Vidyut Bhawan, Bailey Road, Patna

5. The State of Bihar through Collector, Gaya
6. The District Magistrate Gaya, District Gaya
7. The Superintendent of Police Gaya, District Gaya
8. The Sub Divisional Magistrate (SDO), Tekari, Gaya
*********

For the Petitioners :Dr. Kumar Amitesh Chandra For the Respondents : Mr.Anjani Kumar
Additional Advocate General no.10 PRESENT THE HON'BLE MR. JUSTICE SUDHIR KUMAR
KATRIAR THE HON'BLE MR. JUSTICE SAMARENDRA PRATAP SINGH S K Katriar, J. We shall
first take up LPA No. 1132 of 2010, preferred under clause 10 of the Letters Patent of the High Court
of Judicature at Patna, wherein grievance has been raised with respect to the judgment dated
17.5.2010, passed by a learned single Judge of this Court in CWJC No. 6993 of 2010 (Ram Naresh
Singh & Another vs. Power Grid Corporation), whereby the writ petition has been allowed, and the
appellants have been denied permission to install transmission towers on the lands of respondent
nos. 1 and 2 herein (the writ petitioners) on the ground of failure on the part of the appellants to
follow the prescribed procedure. The writ petition has been disposed of with the direction that
"...Power grid Corporation is restrained from entering upon private property without full due
compliance of sub- rules 1, 2 and 3 of rule 3 of The Works of Licensee Rules 2006, which is
mandatory in nature." Hence this appeal at the instance of the appellants. We shall go by the
description of the parties occurring in the present proceeding.

2. A brief statement of facts essential for the disposal of the appeal may be indicated. Respondent
nos. 1 and 2 are owners of separate plots of land, and are independent of each other. They had
joined the writ petition in their independent capacity making a common cause. The appellants are
engaged in the statutory duty and function of transmission and distribution of electricity throughout
the country. In exercise of powers conferred by the Electricity Act 2003 (hereinafter referred to as
`2003 Act'), the Works of Licensee Rules 2006 (hereinafter referred as`the Rules') framed
thereunder, and the Indian Telegraph Act 1885 (hereinafter referred to as `1885 Act'), the
appellants attempted to install transmission towers on the lands owned by respondent nos. 1 and 2
to transmit electricity. The appellants are licensee within the meaning of section 14 read with section
2(39) of 2003 Act. In exercise of the powers conferred by section 164 of 2003 Act, the appropriate
Government has authorized the appellants to exercise powers under Part III of 1885 Act, pursuant
to which they marked places on the land for erecting pillars and foundations to support extra High
Voltage Electric transmission towers. The land-holders (respondent nos. 2 and 3) objected to the
same leading to the writ petition, which has been allowed by the impugned judgment mainly on the
ground that there has not been full compliance of 2006 Rules. However, liberty has been granted to
the appellants to take steps as per the prescribed procedure. The learned single Judge held that the
appellants have not, inter alia, followed the procedure prescribed by rule 3 of the Rules which
mandates that if prior consent of the owner of the land has not been obtained, the appellants were
obliged to apply to the District Magistrate or the Commissioner of Police. The impugned action has,
therefore, been set aside with the liberty to follow the prescribed procedure.

3. While assailing the validity of the order of the learned single Judge, learned counsel for the
appellants submits that respondent nos. 1 and 2 (the writ petitioners) have no enforceable right,

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 The Power Grid Corporation Of vs Ram Naresh Singh & Ors on 9 February, 2011

because of the unrestricted powers vested in it by the said order dated 24.12.2003, to install
transmission towers. He submits in the same vein that the appellants by the impugned action did
not violate any legal or constitutional right of respondent nos. 1 and 2, because it does not amount to
acquisition or requisition of their lands and they obtained only the right of user while the right, title,
and interest of the same continues with the owners of the land. Learned counsel further submits
that in view of the provisions of rule 3(4) of the Rules, applicability of sub-rules 1 to 3 of rule 3 is
completely obviated, a situation brought about by virtue of the powers conferred on the appellants
by the order of the Govt. of India dated 24.12.2003 in terms of section 164 of 2003 Act. He next
submits that in view of the said order dated 24.12.2003, the appellants are now vested with all the
powers in terms of section 10 of 1885 Act and, therefore, they are not obliged to follow the procedure
prescribed in sub-rules 1 to 3 of rule 3. He submits in the same vein that respondent nos. 1 to 3, the
owners of the land in question, cannot raise objection to installation of the transmission towers but
are entitled to compensation in terms of section 10(1)(d), read with section 16(3), rather than
section 10(1)(b) of 1885 Act, nor under the Rules. He relies on the following judgments :-

(i) The judgment dated 7.5.2005 passed by a learned single Judge of the High Court
of Jharkhand in WP(C) No.993 of 2007 (Ajay Munjal Memorial Trust & Ors. vs.
Power Grid Corporation of India & Ors.), and confirmed by a Division Bench of the
same court by order dated 10.7.2007, passed in LPA No.202 of 2007.

(ii) The judgment dated 22.12.2009, passed by a learned single Judge of this Court in
MA No.72 of 2009 (Arvind Singh @ Arvind Kumar vs. Power Grid Corporation of
India Ltd. & Ors.).

(iii) The judgment of a Division Bench of this Court in the case of Sukku Mahto vs.
State of Bihar, reported in 1992(2) PLJR 134.

(iv) The judgment of a learned single Judge of this Court in the case of G V S Rama
Krishna v Managing Director, A P Transco, reported in AIR 2009 Andhra Pradesh
158.

(v) The judgment of a learned single Judge of the Madras High Court in the case of
TST Kanznavi v Tamil Nadu Electricity Board & Ors, reported in AIR 2008 (NOC)
1328 (MAD.) = 2008 Madras Law Journal

703.

(vi) The judgment of a learned single Judge of the Madras High Court in the case of R
Kanan vs. Power Grid Corporation (India) Ltd., reported in AIR 2008(NOC) 2660 =
2008(4) Madras Law Journal 892.

4. Learned counsel for respondent nos. 1 and 2 submits that, in the present context, a clear
distinction has been made between transmission towers and telegraph polls for various reasons. In
his submission, telegraph poles are single-legged and are without hazards. On the other hand, a

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 The Power Grid Corporation Of vs Ram Naresh Singh & Ors on 9 February, 2011

transmission tower is multi-legged and is full of hazards. Therefore, in the latter case, prior consent
of the owner or the occupier is imperative. He submits that the powers of the licensee (the appellant
herein), under the provisions of section 164 of 2003 Act, is hedged with restrictions. He next
submits that, in view of the mandatory provision of sub-rules 1 to 3 of rule 3, the licensee is obliged
to seek prior consent and consider the objections, if any, of the owner or occupier which has not
been done in the present case. Their objections are on record marked Annexure-2 series to the writ
petition.

5. Learned counsel for respondent nos. 3 and 4 submits that the appellants, Bihar State Electricity
Board, and the State of Bihar, have entered into a tripartite agreement which obviates prior
permission of the owner. He also submits that the requisite order of the appropriate Government is
under the provisions of section 164 of 2003 Act which confers all the powers of section 10 of 1885
Act on the appellants.

6. Learned counsel for respondent nos. 5 and 6 submits that the appellants are bound to consider
the objections, and seek prior consent of the owner. In case of denial of the consent, forum of taking
permission from District Magistrate or Commissioner of Police or authorized officer is available to
the appellants in terms of sub- rule 2 of rule 3.

7. We have perused the materials on record and considered the submissions of learned counsel for
the parties. It appears to us that a clear distinction has been made out in the relevant provisions of
law that the power and the authority to install telegraph poles on the one hand, and that of
installation of transmission towers, on the other, are governed by different sets of law, and has to be
clearly spelt out. This position and the distinction clearly manifests itself on a dispassionate analysis
of the relevant provisions of law governing the issues. We shall first of all deal with the power and
the authority to install telegraph poles which, in our view, is governed by the provisions of section
164 of 2003 Act, read with the notification thereunder of 24.12.2003, read with section 10 of 1885
Act. Section 164 of 2003 Act is reproduced hereinbelow for the facility of quick reference :-

"164. Exercise of powers of Telegraph Authority in certain cases. - The appropriate

Government may, by order in writing, for the placing of electric lines or electrical
plant for the transmission of electricity or for the purpose of telephonic or telegraphic
communications necessary for the proper co-ordination of works, confer upon any
public officer, licensee or any other person engaged in the business of supplying
electricity under this Act, such to such conditions and restrictions, if any, as the
Appropriate Government may think fit to impose and to the provisions of the Indian
Telegraph Act, 1885 (13 of 1885), any of the powers which the telegraph authority
possesses under that Act with respect to the placing of telegraph lines and posts for
the purposes of a telegraph established or maintained, by the Government or to be so
established or maintained."

It appears to us that the appropriate Government may by order in writing authorize the licensees
(the present appellants) and others under 2003 Act, engaged in putting up electric lines or electric
plants for the transmission of electricity, or to co-ordinate that activity, or for the purpose of

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 The Power Grid Corporation Of vs Ram Naresh Singh & Ors on 9 February, 2011

telephonic or telegraphic communication necessary for co-ordination of the works, the powers
available under section 10 of 1885 Act. It is evident on a perusal of the order issued by the
Government of India, the appropriate Government in the present case, issued in terms of section
164 of 2003 Act, whereby the requisite power under 1885 Act has been conferred on the appellants.
The width of the power is to be found under section 10 of 1885 Act, which is reproduced
hereinbelow:-

"10. Power for telegraph authority to place and maintain telegraph lines and posts. -
The telegraph authority may, from time to time, place and maintain a telegraph line
under, over, along, or across, and posts in or upon, any immoveable property :

Provided that -

(a) the telegraph authority shall not exercise the powers conferred by this section
except for the purposes of a telegraph established or maintained by the Central
Government, or to be so established or maintained;

(b) the Central Government shall not acquire any right other than that of user only in
the property under, over, along, across, in or upon which the telegraph authority
places any telegraph line or post; and

(c) except as hereinafter provided, the telegraph authority shall not exercise those
powers in respect of any property vested in or under the control or management of
any local authority, without the permission of that authority; and

(d) in the exercise of the powers conferred by this section, the telegraph authority
shall do as little damage as possible, and, when it has exercised those powers in
respect of any property other than that referred to in clause (c), shall pay full
compensation to all persons interested for any damage sustained by them by reason
of the exercise of those powers."

(Emphasis added)

8. The provision applies only to telegraph lines and posts, and is evident on a perusal
of proviso (a) to section 10 which, inter alia, provides that the power thereunder shall
not be exercised except for the purpose of telegraph established or maintained by the
Central Government or to be so established or maintained. In view of the factual
position that the present case does not deal with the telegraph lines and posts, we
need not discuss section 10, or the provisions of section 16 of 1885 Act which deals
with the issues relating to compensation, any further. To conclude this aspect of the
matter, we are clearly of the view that, in view of the order of the Central Government
of 24.12.2010, the appellants have been vested with the powers to put up telegraph
lines and posts on the lands of the owners and occupier which has to be an activity
subservient to the dominant activity of transmission of electricity power.

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 The Power Grid Corporation Of vs Ram Naresh Singh & Ors on 9 February, 2011

9. We now pass on to the next aspect of the matter, namely, the power and authority of the
appellants to set up transmission towers on the lands of the owners and the occupiers. We have
already seen hereinabove the scope, the extent, and the sweep of section 164 of 2003 Act, read with
the order dated 24.12.2010, and also read with section 10 of 1885 Act which is confined to telegraph
lines and posts. In such a situation, it is imperative to identify and locate the power and the
authority of the appellants to install transmission towers on the lands of the owners and the
occupiers. In our view, such a power is to be found in rule 3 of the Rules promulgated in terms of
section 176 of 2003 Act. Section 176 is headed `Power of Central Government to make rules, and
authorizes the Central Government to make rules to carry out the provisions of the Act. Rule 3 is
reproduced hereinbelow:-

"3. Licensee to carry out works .- (1) A licensee may -

(a) carry out works, lay down or place any electric supply line or other works in,
through, or against, any building, or on, over or under any land whereon, whereover
or whereunder any electric supply-line or works has not already been lawfully laid
down or placed by such licensee, with the prior consent of the owner or occupier of
any building or land;

(b) fix any support of overhead line or any stay or strut required for the purpose of
securing in position any support of an overhead line on any building or land or
having been so fixed, may alter such support:

Provided that in case where the owner or occupier of the building or land raises
objections in respect of works to be carried out under this rule, the licensee shall
obtain permission in writing from the District Magistrate or the Commissioner of
Police or any other officer authorised by the State Government in this behalf, for
carrying out the works:

Provided further that if at any time, the owner or occupier of any building or land on
which any works have been carried out or any support of an overhead line, stay or
strut has been fixed shows sufficient cause, the District Magistrate or the
Commissioner of Police, or the officer authorised may by order in writing direct for
any such works, support, stay or strut to be removed or altered.

(2) When making an order under sub-rule (1), the District Magistrate or the
Commissioner of Police or the officer so authorised, as the case may be, shall fix, after
considering the representations of the concerned persons, if any, 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.

(3) Every order made by a District Magistrate or a Commissioner of Police or an

authorised officer under sub-rule (1) shall be subject to revision by the Appropriate
Commission.

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(4) Nothing contained in this rule shall effect the powers conferred upon any licensee
under section 164 of the Act."

10. It is evident on a plain reading of rule 3 that it takes up electric supply line only and not
telegraph lines and posts. This strengthens our conclusion in paragraph-8 hereinabove. Sub-rule (a)
provides that the licensee shall obtain prior consent of the owner or occupier of the building or land,
which inheres in itself the requirement of giving an opportunity to the owner or occupier to make a
representation and prior consent is refused, then the licensee shall be required to apply its mind and
dispose of the same by a reasoned order. This does not by itself vest in the licensee the authority to
over-rule the objection(s) to be followed by their activities. The correct legal position is that, in the
event of refusal to give prior consent, the licensee has the forum of appeal provided by sub-rule (b),
and anyone aggrieved by order can move in revision before appropriate Commission under sub-rule
(3) of Rule 3. We have indicated hereinabove the requirement on the part of the District Magistrate
or the Commissioner of Police as the case may be, while considering the matter under sub-rule (a)
and making an order under sub-rule (1), to consider very objectively and dispassionately while
dealing with the appeal. It is relevant to state that, in our view, powers under sub-rules 1(b) and 1(4)
are in the nature of quasi- judicial functions. It is further relevant to state that it will be open to the
District Magistrate or the Commissioner of Police to allow or reject the appeal after recording
reasons in support of his order. The first proviso to rule (b) is to the effect that, even if by virtue of
permission structure has been made and sufficient cause has been shown by owner of land that the
order under the first proviso to sub- rule (b) has with the passage of time has served its purpose,
direction can be issued to the licensee to remove the transmission towers.

10.1) Sub-rule (2) of rule 3 is equally important in the present context. It makes imperative for the
authorities either under sub-rule

(a) or sub-rule (b) to determine the amount of compensation as part of the order granting
permission to the licensee to install transmission towers. With respect to the issues relating to
compensation as per sub-rule (2), the forum of revision is available to both the sides before the
appropriate Commission. We are informed at the Bar, as has also been noticed by the learned single
Judge, that the Electricity Regulatory Commission is the appropriate Commission in the present
context.

11. We now consider the scope and content of sub-rule (4) of rule 3 of the Rules. It appears to us that
the meaning, content, and sweep of sub-rule (4) becomes evident once we realize the distinction
between the telegraph lines and posts on the one hand, and the transmission towers, on the other,
and clearly spelt out hereinabove. We are of the view that the scope and sweep of sub-rule (4) is
confined to the issues relating to telegraph lines and posts, and does not apply to issues relating to
installation of transmission towers. The Act would become unworkable if any different construction
is put on sub-rule (4). In fact, in our view, the position is so clear that it does not require any
interpretative process.

12. Coming to the facts of the present case, the appellants did not follow the procedure prescribed by
rule 3 of the Rules. They failed to give any notice to respondent nos. 1 and 2, and made no effort to

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seek their prior consent. Their objections are marked Annexure-2 to the writ proceeding. It is thus
evident that the prior consent of the owner or occupier was ever sought for and obtained and,
therefore, any effort on the part of the appellants to install transmission towers becomes bad in law.
Refusal of consent is evident from a perusal of Annexure-2 series. However, in view of the legal
position indicated hereinabove, the authorities are required to apply their mind and deal with the
same in accordance with law and dispose of the same supported by a reasoned order. According to
the appellants, this is not an appeal but a forum to seek permission. It goes without saying, as
indicated hereinabove, that it will be open to the appellants to file an appeal before the District
Magistrate in terms of the first proviso to rule 3.

13. We are mindful of the vital public interest involved in the present matter perhaps with all-India
ramifications. In view of the doctrine of Eminent Domain, read with rule 3 of the Rules, the
appellants have the power and the authority to install transmission towers on the lands of
respondent nos. 1 and 2 in public interest, after following the procedure prescribed, and payment of
compensation. We are in this connection reminded of the judgment of the Supreme Court in the
case of Ranjit Thakur vs. Union of India, AIR 1987 SC 2386, where the importance of following the
prescribed procedure has been emphasized. The observations made therein are to the effect that due
observance of the prescribed procedure is a guarantee against arbitrary exercise of power. The
relevant portion of the judgment is reproduced hereinbelow:-

" The procedural safeguards contemplated in the Act must be considered in the
context of an corresponding to the plentitude of the summary jurisdiction of the
Court-Martial and the severity of the consequences that visit the person subject to
that jurisdiction. The procedural safeguards should be commensurate with the sweep
of the powers. The wider the power, the greater the need for the restraint in its
exercise and correspondingly, more liberal the construction of the procedural
safeguards envisaged by the Statute. The oft quoted words of Frankfurther, J. in
Viterelli v. Seaton, 359 US 535 are against worth recalling:

"....... if dismissal from employment is based on a defined procedure, even though

generous beyond the requirements that bind such agency, that procedure must be
scrupulously observed ............

This judiciously evolved rule of administrative law is now firmly established and, if I
may add, rightly so. He that takes the procedural sword shall perish with the sword."

"The history of liberty" said the same learned Judge "has largely been the history of
observance of procedural safeguards."(1942) 318 US 332.

We are afraid, the non-compliance of the mandate of S.130 is an infirmity which goes
to the root of the jurisdiction and without more, vitiates the proceedings. Indeed it
has been so held by this Court in Prithvi Pal Singh v. Union of India, AIR 1982 SC
1413 where Desai J. referring to the purpose of S. 130 observed : ".......Whenever an
objection is taken it has to be recorded. In order to ensure that anyone objected to

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does not participate in disposing of the objection ....

........This is a mandatory requirement because the officer objected to cannot

participate in the decision disposing of the objection. ........The provision conferring a
right on the accused to object to a member of the Court- Martial sitting as a member
and participating in the trial ensues that a charge of bias can be made and
investigated against individual members composing the Court-Martial. This is
preeminently a rational provision which goes a long way to ensure a fair trial."

What emerges, therefore, is that in the present case there is a non-compliance with
the mandate of S.130 with the attention consequence that the proceedings of the
Summary Court-Martial are rendered infirm in law. This disposes of the first limb of
the contention (a)."

14. We must deal with the judgments cited by the learned counsel for the appellants. The judgment
of the Jharkhand High Court and of this Court need not detain us. Those were under the provisions
of Indian Electricity Act 1910, which has been replaced by a modern Act, namely, 2003 Act, and are,
therefore, no longer a safe guide in the present context. As to the remaining judgments which are
under 2003 Act, - one of which is of Andhra Pradesh High Court, and the rest are of Madras High
Court - we entirely disagree with the approach of the learned single Judges of those courts for the
reasons indicated hereinabove.

15. In the result, we dismiss LPA No.1132 of 2010. In the facts and circumstances of the case, there
shall be no order as to costs.

15. We now take up CWJC No. 11393 of 2010. The petitioner is also owner of land. Respondent nos.
1 and 2 attempted to install transmission towers on her land which, according to the writ petitioner,
is her residential premises. The petitioner submitted her objection before respondent no.2 to adopt
alternate alignment so that transmission tower is not on her land. Respondent nos. 1 and 2
examined the matter and came to the conclusion that the alternative route suggested by the
petitioner is fit to be upheld. In other words, the poles earlier installed by respondent nos. 3 and 4
have been abandoned. Respondent nos. 1 and 2 with consent of respondent nos. 3 and 4 have
proceeded to uphold the objection of the writ petitioner and adopted the alternative route indicated
above. This position renders the writ petition infructuous.

16. In the result, CWJC No.11393 of 2010 is disposed of as having become infructuous. In the
circumstances of the case, there shall be no order as to costs.

( S K Katriar, J.)

S P Singh, J. I agree.

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( S P Singh, J.)
Patna High Court, Patna
The 9th of February, 2011
AFR/mrl

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