Writ Petition Nos256 to 263 of 2012,Writ Petition Nos256 to 308 of 2012,Writ Petition Nos256 to 309 of 2012,Writ Petition Nos256 to 533 of 2012

22nd March, 2012

Petitioner Counsel: Mr. TUSHAR MANDLEKAR Mr. P.R. PURI Mr. U.M. AURANGABADKAR Mr. S. V. SOHONI Mr. R.P. JOSHI with Mrs. M. P. MUNSHI for petitioners in W.P. Nos. 2675. Mrs. M. P. MUNSHI Mr. M.M. AGNIHOTRI Mrs. B.H. DANGREMr. N.W. SAMBRE
Respondent Counsel: Mr. D.B. YENGALMr. D. P. THAKREMr. T.H. KHANMr. P.D. KOTHARIMrs. KALYANI DESHPANDE Mr. S.V. MANOHARMr. G.E. MOHARIR for MSETCL Mrs. GAURI VYANKATRAMAN Mr. ANOOP PARIHAR Mr. S.K. MISHRAMr. V.A. BAGADDEO Mr. TEKADE h/f Mr. A.S. MARDIKAR
Other Counsel: Mr. K.H. DESHPANDEMr. G.E. MOHARIR Mr. G.E. MOHARIR for MSETCL Mr. R.E. MOHARIR for MSETCL

Cases Cited:
I.R. Coelho (Dead) By LRs. Vs. State of T.N, 2007(1) ALL MR 944 (S.C.) =2007 ALL SCR 433 : (2007) 2 SCC 1 [Para 17]
K.T. Plantation Private Limited and anr. Vs. State of Karnataka, 2011(6) ALL MR 387 (S.C.) =(2011) 9 SCC 1 [Para 18]
Darshanlal Nagpal (Dead) By LRs. Vs. Government of NCT of Delhi and Ors., 2012 ALL SCR 785 [Para 20]
Himmatbhai Vallabhbhai Patel Vs. Chief Engineer (Project), Gujarat Energy Transmission & Ors., AIR 2011 (NOC) 405 (GUJ.) [Para 25]
Braham Singh Vs. State of U.P. & Ors., AIR 2008 (NOC) 2034 (ALL) [Para 25]
E. Venkatesan & Ors. Vs. Chairman, Tamil Nadu Electricity Board Madras & Ors., AIR 1977 Madras 64 [Para 25]
Sahara India (Firm), Lucknow Vs. Commissioner of Income Tax, Centra-lI and anr., (2008) 14 SCC 151 [Para 19]
Raghbir Singh Sehrawat Vs. State of Haryana and ors., 2012(1) ALL MR 905 (S.C.) =(2012) 1 SCC 792 [Para 20]
G.V.S. Rama Krishna S/o Nageswara Rao & Ors. Vs. A.P. Transco, AIR 2009 AP 158 [Para 25]
Bharat Plywood and Timber Products Private Ltd. Vs. Kerala State Electricity Board Trivandrum and ors., AIR 1972 Kerala 47 [Para 25]
Rajak and ors. Vs. National Thermal Power Corporation Ltd, Indore and anr. AIR 1988 MP 172 [Para 25]

JUDGMENT

S.A. BOBDE, J. :- By these petitions, the petitioners, who are owners and occupiers of land, have in effect challenged the laying of a 400 KV electric transmission line from Koradi-II to Wardha (Power Grid). The laying of the electric line involves the construction of towers in the land of the petitioners. Though the challenges are not common to all petitions, the petitioners have questioned the vires of Section 164 of the Electricity Act, 2003 and Section 10 of the Indian Telegraph Act, 1885. They have also challenged the notification dated 24.08.06 issued by the Government of Maharashtra under Section 164 of the Electricity Act, 2003, empowering the Maharashtra State Electricity Transmission Company Ltd. (hereinafter referred to as the "Transmission Company") to exercise the powers of a Telegraph Authority for the purpose of laying of an electric lines. The petitioners have also challenged the various orders of the District Magistrate under Section 16(1) of the Indian Telegraph Act, 1885 permitting the transmission company to exercise the powers of laying an electric lines after finding that the resistance or obstruction of the petitioners is not justified and further directing the to pay requisite compensation to the petitioners in accordance with law within a period of one month from the date of completion of the work.

THE PROJECT:

2. The respondent no.2 Transmission Company has set up a power station at Koradi for generation of electricity. The respondent no.2 is a Government Company within the meaning of Section 617 of the Companies Act and it has planned the construction of a transmission line for 400/220 KV from Koradi to Wardha. Both the terminal points where the power is generated and where it is meant to reach are within the State of Maharashtra. By now, according to the respondents, at least 80% of the work is completed.

3. This project is known as "Construction of 400 KV DCDC line from 400 KV Koradi to 400 KV Wardha (PG)". The estimated cost is Rs.36,137/Lakhs. The completion period for the project is two years. Since it is necessary to lay an electric line for the purpose of transmission of energy, in the same manner as a telegraph line, the Government of Maharashtra, in exercise of powers under Section 164 of the Electricity Act, 2003, conferred powers of a telegraph Authority on the Maharashtra State Electricity Transmission Company Ltd. by an order dated 24.08.06. This company is engaged in the business of transmission of electricity generated in the State of Maharashtra. The respondent no.2Transmission Company has been thus conferred with the powers of a telegraph Authority for the purpose of placing of electrical lines for transmission of electricity for the proper co-ordination of work. This authorization under Section 164 is a general authorization for placing of electrical lines generally and not for a specific electric line.

OBSTRUCTION BY PETITIONERS AND ORDER THEREON UNDER SECTION 16 OF THE INDIAN TELEGRAPH ACT, 1885.

4. The Maharashtra State Electricity Transmission Company Ltd. has undertaken the task of laying the electric line in question known as the 400 KV Koradi to Wardha (PG Transmission Line). The panel through the lands of many people along the way from Koradi to Wardha; a distance of over 100 Kms. The petitioners are occupiers of land along the route of the proposed electric line. Since there was resistance and obstruction to the laying of the line from the petitioners, the Transmission Company preferred an application to the District Magistrate, Nagpur under Section 16(1) of the Indian Telegraph Act, 1885 for permission to continue the work of transmission lines.

5. In the application to the District Magistrate, the Transmission Company submitted that the work of construction of the line has been awarded to one M/s. COBRA - KCL (J.V.) who has been obstructed by the petitioner and the matter has been reported to the police; that the work of transmission line is getting stalled on account of the obstructions created by the petitioners as well as others and, therefore, they had to suspend further progress of the work and approach the District Magistrate under Section 16(1) of the Indian Telegraph Act, 1885. The Transmission Company assured to pay the requisite compensation to the petitioners and prayed for permission to carry out the work of 400 KV Koradi to Wardha Power Grid Transmission Line through the property of the petitioners and to locate towers. The District Magistrate issued notice to the petitioners, who filed replies to the applications and raised several objections to the grant of such permission. The petitioners raised several objections to the grant of the application, not all of which need to be reproduced, on all aspects of the matter including the ground of a health hazard due to the transmission line. The District Magistrate, however, came to the conclusion that the work has been undertaken by and under the statutory obligation imposed by Section 39 of the Electricity Act as it is a State transmission utility. The transmission of electricity is public work. That the route of transmission has been finalized after surveying and considering the feasibility, technical and engineering aspects. The District Magistrate, therefore, granted permission to the to carry out and continue the work of the transmission line under powers under Section 164 of the Electricity Act, 2003. The District Magistrate directed the Transmission Company to pay the requisite compensation in accordance with law.

6. The petitioners have, thereafter, approached this court challenging the said order and the notification under Section 164 of the Electricity Act 2003. The petitioners have also questioned the validity of Section 164 of the Electricity Act, 2003 and Section 10 of the Indian Telegraph Act, 1885.

CHALLENGE TO THE CONSTITUTIONAL VALIDITY OF SECTION 164 OF THE ELECTRICTY ACT, 2003 AND SECTION 10 OF THE INDIAN TELEGRAPH ACT, 1885.

7. Section 164 of the Electricity Act, 2003 reads as follows:

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, subject 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 is undisputed that the transmission company is acting under the authorization under Section 164 of the Electricity Act.

8. The main contention raised on behalf of the petitioners is that the entire scheme of the Electricity Act, 2003 and the Indian Telegraph Act, 1885, which provides for laying of electric lines is un-constitutional being violative of Article 14 of the Constitution of India because it does not provide for a hearing to the land owners before the route, over which the electric line is to pass, is decided. In other words, according to the petitioners, if the Government proposes to lay down an electric line for transmission of energy from one point to another, even at the planning stage it must hear all the land owners on the route of the proposed electric line. There being no such provision for hearing, Sections 164 of the Electricity Act 2003 and Section 10 of the Indian Telegraph Act are ultra vires Article 14 of the Constitution of India.

9. Section 164 of the Electricity Act, according to the petitioners, is bad, being arbitrary and violative of Article 14 of the Constitution of India on the ground that it empowers the appropriate Government to authorize a body, such as a public office, licensee or any other person to exercise powers of a Telegraph Authority with respect to placing of telegraph lines and posts and without hearing the land owner. By this section, Parliament has conferred on the appropriate Government the power to authorize a person or body under the Electricity Act to exercise the specific powers of an authority under the Telegraph Act. At the stage of authorization, it is not possible for the Government to know necessarily the particular area over which the lines are to be laid and which land owners will be affected thereby. As in this case, the authorisation may be general in favour of a transmission company or in a given case special. Therefore, no land owner can be said to be prejudiced by such authorization since the authorization does not contemplate the route over which the line will pass and the land which will be affected. It is not disputed that the route is decided, not by the Government but by the transmission company. There is, therefore, no question of hearing any land owner and of the provision being un-constitutional because it does not provide for such hearing.

10. The validity of Section 10 of the Indian Telegraph Act, 1885, was challenged on the ground that it does not provide for hearing of the land owner of any immovable property under, over, along or across which an electric line is to be placed. It was also contended that Section 10, particularly Clause (c) thereof, invidiously discriminates between local authority and ordinary citizen in that it requires the authority to exercise its powers in respect of the property of a local authority only by obtaining permission of that authority whereas no such permission is required in relation to the property of an ordinary citizen. Section 10 of the Indian Telegraph Act, 1885, reads as follows:

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 immovable 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 posts; 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.

11. The validity of Section 16 was questioned on the ground that it makes no express provision for hearing by a District Magistrate. Section 16 provides for the District Magistrate to permit the exercise of such powers if there is resistance or obstruction to such exercise. Section 16 also provides for compensation and reads as follows :

16. Exercise of powers conferred by section 10, and disputes as to compensation, in case of property other than that of a local authority- (1) If the exercise of the powers mentioned in section 10 in respect of property referred to in clause (d) of that section is resisted or obstructed, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them.

(2) If, after the making of an order under sub-section (1), any person resists the exercise of those powers, or, having control over the property, does not give all facilities for their being exercised, he shall be deemed to have committed an offence under section 188 of the Indian Penal Code, 1860 (45 of 1860).

(3) If any dispute arises concerning the sufficiency of the compensation to be paid under section 10, clause (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him.

(4) If any dispute arises as to the persons entitled to receive compensation, or as to the proportions in which the persons interested are entitled to share in it, the telegraph authority may pay into the Court of the District Judge such amount as he deems sufficient or, where all the disputing parties have in writing admitted the amount tendered to be sufficient or the amount has been determined under sub-section (3), that amount; and the District Judge, after giving notice to the parties and hearing such of them as desire to be heard, shall determine the persons entitled to receive the compensation or, as the case may be, the proportions in which the persons interested are entitled to share in it.

(5) Every determination of a dispute by a District Judge under sub-section (3), or sub-section (4) shall be final:

Provided that nothing in this sub-section shall affect the right of any person to recover by suit the whole or any part of any compensation paid by the telegraph authority, from the person who has received the same.

Section 10 does not contemplate notice to an owner or occupier of land to show cause against the laying of a line and authorizes the telegraph authority to place a telegraph line under, over, along or across any immovable property. The proviso makes it clear that the Central Government thereby does not acquire any right other than that of user in the property vide (b). Clause (d) provides for payment of full compensation to all persons interested in the land for any damage sustained by them by reason of exercise of those powers.

12. Section 16 provides that if there is any resistance or obstruction, the District Magistrate may in his discretion order that the telegraph authority shall be permitted to exercise the powers. Further, after such an order a person offering any further resistance deemed to have committed offence under Section 188 of the Indian Penal Code. Section 16 also provides for a decision on the sufficiency of compensation by the District Judge. Section 16 thus contemplates a decision of the District Magistrate to enquire: whether the resistance or obstruction is justified and to direct the further exercise of powers. It also contemplates a decision by the District Judge on the question of compensation. Though the section does not expressly provide for a hearing by the District Magistrate on whether the authority should be permitted to exercise their power in case of resistance or obstruction. There is no doubt that such an order involves civil consequences in that the authority acquires rights of user in the land of a citizen and, therefore, such a decision must be preceded by hearing the one who obstructs. There is no doubt that the acquisition of rights of user over land is an act of such a nature as would require the executive to hear the person affected. Indeed, it was not disputed on behalf of the Transmission Company that the land owner has a right of being heard under Section 16(1). As referred to above, the Transmission Company has moved applications for permission to exercise their rights before the District Magistrate, who has issued notice to the petitioners and has, after hearing them, passed orders permitting the exercise of powers.

13. Similarly, it is not disputed on behalf of the respondents that the dispute regarding the sufficiency of compensation can be resolved by the District Judge only after hearing all concerned. It may be noted that sub-section (4) provides that the District Judge shall give notice to the parties and hear them for determining which persons are entitled to receive compensation and in what proportion. Thus from the scheme of Sections 10 and 16, though a hearing is not contemplated before an electric line is placed in any immovable property, such a hearing is contemplated if there is obstruction or resistance to such placing. Taken separately, no hearing is contemplated under Section 10 and a limited hearing is contemplated under Section 16.

14. According to Mr. Joshi, Mr. Mandlekar, the learned counsel for the petitioners, the authorities themselves are bound to grant a hearing to the land owners. According to the learned counsel such a hearing should be granted even at the stage the authorities are planning the route over which the line is to pass and at the stage where the appropriate Government decides to authorize a person to exercise the powers of a Telegraph Authority under Section 164 of the Electricity Act, 2003. As observed earlier, there is no merit in this contention since at the stage of authorization under Section 164 even a particular project may not be contemplated at all. Moreover, the decision to mark a route for laying an electric line is a highly specialized and technical decision and unrelated to any specific land owner. Moreover, the route may be over hundreds of kilometers passing over Government lands, lands of local authorities and private lands and it may not be practicable to hear land owners along the entire route. Having regard to the specialized and technical nature of the task and the fact that the lines are laid for distribution of an essential material resource of the community, Parliament has not provided for any notice or hearing to the public at large or to specific land owners at the stage of planning of the route.

15. It was also contended that Section 10 of the Indian Telegraph Act, 1885, which confers the power to place an electric lines on a Telegraph Authority and upon authorization on an Electricity Authority, is un-constitutional being violative of Article 14 because it confers unfettered powers on an authority to lay down lines anywhere they please. Apart from the fact that section does not confer un-canalized arbitrary powers but only empowers the authority in regard to do a specific act namely, to lay down an electric lines, we find that a challenge, such as this, is not tenable against such provisions.

IMMUNITY FROM CHALLENGE :

16. Mr. Deshpande and Mr. Manohar, the learned counsel for the respondents submitted that the provisions of the Indian Telegraph Act, 1885 contained in Part III of the Act and the provisions of the Electricity Act, 2003 contained in Part VIII of the Act and all incidental provisions must be treated as immune from challenge on the grounds of violation of Articles 14 and 19 by a virtue of Article 31A of the Constitution of India. It is submitted by the learned counsel that the constitutional validity of the provisions has been questioned by the petitioners either on the ground of breach of Article 14 for not providing an opportunity for the land owners and occupiers to be heard or on the ground of Article 19 i.e. the alleged interference with their right to carry on their trade, occupation etc. due to the placing of lines. In the submission of the learned counsel challenges on these grounds are not permissible by virtue of Article 31A. Article 31A reads as follows:-

"31 A. Saving of laws providing for acquisition of estates, etc.--

(1) Notwithstanding anything contained in article 13, no law providing for-

(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or

(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or

(c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or

(d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directions, directors or managers of corporations, or of any voting rights of shareholders thereof, or

(e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19:

Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent:

Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.

(2) In this article,

(a) the expression "estate" shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include

(i) any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any janmam right;

(ii) any land held under ryotwari settlement;

(iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;

(b) the expression "rights", in relation to an estate, shall include any rights vesting in a proprietor, sub-proprietor, un-derproprietor, tenure-holder, raiyat, un-derraiyat or other intermediary and any rights or privileges in respect of land revenue."

The first question that arises is, what is the nature of the provisions contained in Part VIII (Sections 67 to 69) of the Electricity Act, 2003 and Part III (Sections 10 to 19B) of the Indian Telegraph Act, 1885? In substance, these provisions do not provide for the acquisition of any estate but only for the acquisition, extinguishment or modification of rights in the estate. The term "estate" is defined in Article 31A Sub-clause (2) to include all kinds of land referred to in Sub-clause (iii) of Clause (a) as follows:

"(iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans."

The land of the petitioners, which is largely agricultural, fall within the meaning of the term "estate".

The term "rights" has been defined to include any rights vesting in a proprietor, sub-proprietor etc. vide Clause (b) of Sub-Article (2). Under the provisions of the Electricity Act, 2003 and the Indian Telegraph Act, 1885 in question, the authorities, under directions of the Government, acquire several rights in estates. Those rights are in the nature of opening up and breaking up of the soil and pavement of any street, railway or tramway upon certain conditions, the power to lay overhead lines and for that purpose do all things necessary, including the removal of trees, structures and objects, vide Sections 67 and 68 of the Electricity Act, 2003 or the old Act of 1910. The authorities also acquire the rights over estates, such as the user of property under, over, along, across, in or upon which the telegraph authority places any line or post vide 10(b), the right to enter the property in order to repair or remove lines vide 11, the power to alter position of gas or water pipes or drains vide 14 and further to apply for an order for removing resistance or obstruction to the exercise of such a right by a District Magistrate. The effect of Clause (b) to the proviso to Section 10 of the Telegraph Act is that though the authority may place etc. a line upon any immovable property, the Central Government thereby does not acquire any right other than that of user only in the property. Thus, the provisions in question must be construed as law providing for the acquisition of rights in any estate within the meaning of Article 31A and, therefore, cannot be deemed to be void on the ground that they are inconsistent with or take away or breach any of the fundamental right conferred by Articles 14 or 19 of the Constitution. An executive act performed under the law in question, namely, of deciding to enter upon and entering the property of owners, is also not vitiated on the ground that the initial attempt to enter the property for the purpose of placing lines was not preceded by notice or hearing. As observed earlier, the scheme of the law is that the person offering resistance or obstruction is entitled to be heard when the transmission company applies for removal of such resistance and obstruction under Section 16(1). In our view, though not expressly provided for, the requirement of hearing must be read into Section 16 (i). We are informed that as a practice land owners are always heard when applications are made by a transmission company for removal of obstruction and resistance. The requirement to hear the owners or occupiers at this stage is, in our view, sufficient compliance with the rules of natural justice and, admittedly, in the present case all the petitioners have been heard by the District Magistrate.

17. It was contended by Mr. R.P. Joshi, the learned counsel for the petitioners that to the extent the fundamental rights are part of the basic structure of the Constitution, even the validity of laws placed in the Nineth Schedule can be tested against the basic structure of the Constitution as held by the Supreme Court in I.R. Coelho (Dead) By LRs. vs. State of T.N. ( 2007) 2 SCC 1 : [2007(1) ALL MR 944 (S.C.) : 2007 ALL SCR 433]. No question of any immunity on the ground that the laws are placed in the Nineth Schedule arises here. In fact, we find that in Coelho's case the Supreme Court distinguished between the scheme of immunity provided by Article 31A and Article 31B. It observed in relation to Article 31A that,

".......Article 31A does not exclude uncatalogued number of laws from challenge on the basis of Part III. It provides for a standard by which laws stand excluded from judicial review......."

Thus the reliance on the observations of the Supreme Court in Coelho's case for the proposition that it is not permissible to override the entire Part III of the Constitution by invoking Article 31A are misplaced.

18. Mr. Manohar relied on the judgment of the Supreme Court in K.T. Plantation Private Limited and anr. vs. State of Karnataka - (2011) 9 SCC 1 : [2011(6) ALL MR 387 (S.C.)] and submitted that the Supreme Court has reiterated that a law is immune from challenge on the ground of arbitrariness, unreasonableness under Article 14 of the Constitution of India. In the context of a law made by the Legislature of a State, the Supreme Court observed as follows:

"208. We have already found, on facts as well as on law, that the impugned Act has got the assent of the President as required under the proviso to Article 31A( 1), hence, immune from challenge on the ground of arbitrariness, unreasonableness under Article 14 of the Constitution of India.

209. Statutes are many which though deprive a person of his property, have the protection of Article 30(1A), Articles 31A, 31B, 31C and hence are immune from challenge under Article 19 or Article 14, the basic structure and the rule of law, apart from the ground of legislative competence. In I.R. Coelho case the basic structure was defined in terms of fundamental rights as reflected under Articles 14, 15, 19, 20, 21 and 32. In that case the Court held that statutes mentioned in Schedule IX are immune from challenge on the ground of violation of fundamental rights, but if such laws violate the basic structure, they no longer enjoy the immunity offered by Schedule IX."

19. Mr. Joshi, the learned counsel for the petitioners relied on the observations of the Supreme Court in the case of K.T. Plantation Pvt. Ltd. to the effect that a law, though protected by Article 31A, may still be attacked on the ground that it violates the rule of law or basic structure of the Constitution. However, there is nothing in the present provisions which can be shown to have violated the rule of law or the basic structure of the Constitution. Mr. Joshi also relied on certain observations of the Supreme Court in Sahara India (Firm), Lucknow vs. Commissioner of Income Tax, Centra-lI and anr. ( 2008) 14 SCC 151 and submitted that a hearing is an essential requirement before an administrative action is taken. In Sahara India, however, the Supreme Court was considering, whether a hearing before an order under Section 142(2A) of the Income Tax Act requiring special audit was necessary. The Supreme Court observed that, an order under the said provisions of the Income Tax Act leads to serious civil consequences and though the provision does not either provide or bar a predecision hearing, the principle of audi alteram partem will have to be read in such a provision.

20. Mr. Joshi also relied on the decisions of the Supreme Court in Raghbir Singh Sehrawat vs. State of Haryana and ors. (2012) 1 SCC 792 : [2012(1) ALL MR 905 (S.C.)] and Darshanlal Nagpal (Dead) By LRs. vs. Government of NCT of Delhi and ors., [2012 ALL SCR 785] where the Supreme Court discussed the importance of natural justice enshrined in Section 5A of the Land Acquisition Act before any person is deprived of his land by way of compulsory acquisition. The Supreme Court held that such a person must have an opportunity to oppose the decision of the State Government to acquire the particular parcel of land, particularly since he may also point out that the land proposed to be acquired is not suitable for the purpose specified in the notification issued under Section 4(1). The present case does not involve the acquisition of land but only the user by the State for a limited purpose, for which there is provision for payment of compensation. Moreover, it seems unreasonable to confer on the owners or occupiers of land a choice about what should be the route of the electric line and where it should be placed, since such a decision must yield to the dictates of technical knowledge, expertise and viability. There is no doubt that if all owners and occupiers of land over hundreds of kilometers are allowed to have a say and object to the routes and if the validity of the orders passed under objection is allowed to be contested, the route may not get finalized for years. Having regard to the importance of electricity to the life of citizen, particularly to essential services and industry, such a procedure would be detrimental to public interest. Similarly, the observations in Darshanlal Nagpal's [2012 ALL SCR 785] case, emphasizing the importance of the rules of natural justice cannot be applied to the present case. Apart from the fact that challenge on the ground of Article 14 is excluded by virtue of Article 31A, we are of the view that the present case calls for a situational exception and of necessity, the authorities may not be compelled to hear owners and occupiers before deciding on the route over which an electric line should be placed. Therefore, the contention that the legislative scheme, which does not require the authorities to hear the owners and occupiers of the land while planning the route of an electric line is un-constitutional, is rejected. So also the contention that Section 164 of the Electricity Act, 2003 and Section 10 of the Indian Telegraph Act, 1885 are void being violative of Article 14 is rejected.

21. At this stage, we must record the fact that at the suggestion of the Court, the respondents offered to hear the petitioners on whether any adjustments could be made in the route and also offered to make such adjustments subject to technical advise and feasibility, through independent officers. The respondents also agreed to consider the petitioners' case for higher compensation in certain cases, through independent officers. However, the petitioners rejected the offer on the ground that they had no faith in the respondents or their officers.

22. We do not see any merit in the contention that the provisions are violative of Article 21 on the ground that they adversely affect the health of persons living in or around high tension lines. In the first place, the electric line in question, which is high tension 400 KV line is to be placed over agricultural fields and not over a residential area. Secondly, no proof is placed before the court to enable it to draw an inference that the placing of electric line causes cancer as alleged. We are unable to draw this inference on the basis of a report from Australia placed on record.

ACTION ARBITRARY FOR NOT OBTAINING CONSENT UNDER SECTION 12 OF THE ELECTRICITY ACT, 1910:

23. It was next contended on behalf of the petitioners that the action of the transmission company in placing the electrical line over the lands of the petitioners without obtaining the consent of the owner or occupier is violative of Section 12 (2) of the Electricity Act, 1910. Section 12(2) of the said Act reads as follows:

12. Provisions as to the opening and breaking of streets, railways and tramways. (1) ........

(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 supplyline, 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 any support of an overhead line or any stay or strut required for the sole purpose of securing in position any support an overhead line may be fixed on any building or land or, having been so fixed may be altered, notwithstanding the objection of the owner or occupier of such building or land, if the District Magistrate or in a Presidencytown the Commissioner of Police by order in writing so directs:

Provided, also, that, if 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 Presidencytown the Commissioner of Police may by order in writing direct any such support, stay or struct to be removed or altered.

This contention is misplaced in view of the provisions of the Electricity Act, 2003. This Act was enacted for consolidating the laws relating to generation, transmission, distribution, trading and use of electricity and generally for taking measures conducive to development of electricity industry. The Statement of Objects and Reasons specifically referred to the need of harmonising and rationalising the provisions of the Indian Electricity Act, 1910 and the necessity to enact new legislation for regulating the electricity supply industry in the country which would replace the existing laws. Section 185 of the Electricity Act, 2003 repealed the Indian Electricity Act, 1910 containing Section 12 relied upon by the petitioners. Section 185 reads as follows:

185. Repeal and saving... (1) Save as otherwise provided in this Act, the Indian Electricity Act, 1910 (9 of 2010), the Electricity (Supply) Act, 1948 (54 of 1948) and the Electricity Regulatory Commissions Act, 1998 (14 of 1998) are hereby repealed.

(2) Notwithstanding such repeal,

(a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission, authorisation or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act;

(b) the provisions contained in sections 12 to 18 of the Indian Electricity Act, 1910 (9 of 1910), and rules made thereunder shall have effect until the rules under sections 67 to 69 of this Act are made;

(c) the Indian Electricity Rules, 1956 made under section 37 of the Indian Electricity Act, 1910 (9 of 1910) as it stood before such repeal shall continue to be in force till the regulations under section 53 of this Act are made.

(d) all rules made under sub-section (1) of section 69 of the Electricity (Supply) Act, 1948 (54 of 1948) shall continue to have effect until such rules are rescinded or modified, as the case may be;

(e) all directives issued, before the commencement of this Act, by a State Government under the enactments specified in the Schedule shall continue to apply for the period for which such directions were issued by the State Government.

(3) The provisions of the enactments specified in the Schedule, not inconsistent with the provisions of this Act, shall apply to the States in which such enactments are applicable.

(4) The Central Government may, as and when considered necessary, by notification, amend the Schedule.

(5) Save as otherwise provided in sub-section (2), the mention of particular matters in that section, shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897), with regard to the effect of repeals.

24. According to the petitioners since Rules have not been made under Sections 67 to 69 of the new Act of 2003, the provisions contained in Sections 12 to 18 continue to have effect as provided by Clause (b) above and, therefore, the respondents were bound to obtain the consent of the owners and occupiers of the land under Section 12. This submission is based on an erroneous assumption that the act of placing an electric line is being performed by the Transmission Company under Section 12 of the Electricity Act, 1910 which is temporarily saved as a transitory provision till the enactments of rules. On the other hand, the State of Maharashtra has issued a notification under Section 164 of the new Act of 2003 conferring powers with respect to the placing of telegraph lines and posts, which the Telegraph Authority possesses under the Indian Telegraph Act, 1885 for the purpose of placing of electric line for transmission of electricity on the Transmission Company. When such a notification is issued under the Electricity Act, 2003 in terms, the person authorized exercises powers of a Telegraph Authority under the provisions of the Indian Telegraph Act, 1885 and not powers under Sections 12 to 18 of the old Act, 1910 which are temporarily saved. It is obvious that after such authorization under Section 164 of the new Act 2003, the Transmission Company is bound to exercise the powers of a Telegraph Authority with respect of placing of telegraph lines and posts for the purpose of placing of an electric line for the transmission of electricity. These powers are found in Part-III of the Indian Telegraph Act, 1885 vide Sections 10 to 16. None of these provisions provide for obtaining consent of an owner or occupier of the land. The legislative scheme in regard to the electric lines is that after the repeal of the Indian Electricity Act, 1910, the work of placing of electrical lines must be done under Sections 12 to 18 of the old Act 1910 till rules are framed under Sections 67 and 68 of the new Electricity Act, 2003. If there is any such notification under Section 164 of the new Act 2003, conferring powers of the Telegraph Authority for the purpose of placing electric lines, during the transitory period when rules are not framed under Sections 67 and 68 of the new Act 2003, they did not and cannot act under Sections 12 to 18 of the old Act, 1910. The contention on behalf of the petitioners is, therefore, rejected.

25. In this context, Mr. Manohar the learned counsel for the respondentMSETC relied on judgments of different High Courts. In Himmatbhai Vallabhbhai Patel vs. Chief Engineer (Project), Gujarat Energy Transmission & Ors. AIR 2011 (NOC) 405 (GUJ.), the Gujarat High Court held that Section 12 of the Electricity Act, 1910 has no application where an authorization has been issued under Section 164 of the Electricity Act, 2003 conferring the powers of Telegraph Authority on the Transmission Company. In Braham Singh vs. State of U.P. & Ors. AIR 2008 (NOC) 2034 (ALL), the Allahabad High Court relied on a judgment of the Madras High Court in E. Venkatesan & Ors. vs. Chairman, Tamil Nadu Electricity Board Madras & Ors. AIR 1977 Madras 64, where the Madras High Court held that when a Licensee exercises powers under Section 51 of the Electricity Act read with Section 10 of the Telegraph Act, the owner is not entitled to any notice before laying the poll or construct any tower, nor any consent is required from them. In G.V.S. Rama Krishna s/o Nageswara Rao & Ors. vs. A.P. Transco AIR 2009 Andhra Pradesh 158, the Andhra Pradesh High Court held that under Section 164 of the Electricity Act, 2003 read with Section 10 of the Indian Telegraph Act, 1885, the Transmission Company could proceed to place an electric polls for the transmission of electricity over private land without any consent of the owner or occupier. In Bharat Plywood and Timber Products Private Ltd. vs. Kerala State Electricity Board Trivandrum and ors. AIR 1972 Kerala 47, a Full Bench of the Kerala High Court held that it is not obligatory on the part of the authority which has been conferred with powers of Telegraph Authority under Section 10 to issue a prior notice to the owner of the property over which the electricity supply line is proposed before exercising powers under Section 10. In Rajak and ors. vs. National Thermal Power Corporation Ltd., Indore and anr. AIR 1988 Madhya Pradesh 172, a Division Bench of the Madhya Pradesh High Court held that the petitioner could not object to the implementation of a scheme for erection of tower and laying of transmission lines over certain lands on the ground that no notice is served on the land owners and the principles of natural justice are not complied with. We are in respectful agreement with the view of the aforesaid High Courts.

VALIDITY OF NOTIFICATION UNDER SECTION 164 OF THE ELECTRICITY ACT, 2003.

26. The petitioners, however, have challenged the notification dated 24/8/2006 under Section 164 of the Electricity Act, 2003 itself by which the has been conferred with powers of a Telegraph Authority for the purpose of placing an electric line. According to the learned counsel for the petitioners the appropriate Government, which could have conferred powers upon the Transmission Company under Section 164, is not the State Government, which has issued the authorization, but can only be the Central Government. The contention is that 400 KV Koradi - Wardha line is being laid as a part of an inter-State transmission as defined in Section 2 sub-section (36) and the appropriate Government is, therefore, the Central Government in accordance with sub-section (5) of Section 2. Sub-section (5) of Section 2 reads as follows:-

2. Definitions.- In this Act, unless the context otherwise requires,

(1) ...... (2) ..... (3) ..... (4) ......

(5) "Appropriate Government" means

(a) the Central Goverment,

(i) in respect of a generating company wholly or partly owned by it;

(ii) in relation to any inter-State generation, transmission, trading or supply of electricity and with respect to any mines, oilfields, railways, national highways, airports, telegraphs, broadcasting stations and any works of defence, dockyards, nuclear power installations;

(iii) in respect of the National Load Despatch Centre and Regional Load Despatch Centre;

(iv) in relation to any works or electric installation belonging to it or under its control;

(b) in any other case, the State Government having jurisdiction under this Act;

Sub-section (36) of Section 2 reads as follows:

(36) "inter-State transmission system" includes

(i) any system for the conveyance of electricity by means of main transmission line from the territory of one State to another State;

(ii) the conveyance of electricity across the territory of an intervening State as well as conveyance within the State which is incidental to such inter-State transmission of electricity;

(iii) the transmission of electricity within the territory of a State on a system built, owned, operated, maintained or controlled by a Central Transmission Utility;

It is the petitioners' contention that the power that is generated from Koradi is proposed to be transmitted to Wardha and onwards into other States and, therefore, it amounts to inter-State transmission within the meaning of Clauses (i) and (ii) of sub-section (36) of Section 2. Therefore, the petitioners contend that the appropriate Government which could have issued the said authorization is the Central Government in view of sub-section (5) of Section 2. It may be noted that the authorization itself does not confer powers for the purpose of placing electrical lines either for intraState or inter-State transmission of electricity. Thus the contention is that the impugned authorization by which the State Government has authorized the Transmission Company to lay down an electric lines cannot be utilized by them for laying down an inter-State transmission line because the State Government can only authorize the laying down of an intraState line as the appropriate Government. In other words, they cannot lay down 400 KV Koradi to Wardha (PG) line since it is being laid for the purpose of inter-State transmission for which an authorization can only be made by the Central Government as the appropriate Government. The submission is not tenable. It is not disputed that they purports to exercise the powers of a Telegraph Authority for the purpose of placing an electric line from Koradi to Wardha in pursuance of the impugned authorization. Clearly, if the line were an inter-State line, the action of laying down an inter-State line would be unauthorized if it is done under the impugned authorization, because that authorization must be considered as restricted to authorize the laying down of an intraState line alone. According to the petitioners, at the point at which the line terminates at Wardha, the Power Grid Corporation of India Limited (PGCIL) connects a line of the national grid to the State grid at Wardha and carries electricity to another State and, therefore, the Koradi - Wardha line is an inter-State line. This contention is based on the feasibility report.

27. In the Feasibility Report for the line, the Brief Scope of Work is defined as follows:

1) Construction of 400 KV DCDC line from 400 KV Koradi to 400 KV Wardha (PG) with quad conductor.

2) 400 KV Line Bays - 2 nos. at 400 KV KoradiII S/S.

3) 400 KV Line Bays - 2 nos. at 400 KV Wardha (PG) S/S.

The petitioners, however, rely on the Objective and Justification stated in the Feasibility Report, which reads as follows:

Objective

400 KV Koradi-II S/S is proposed to be established to evacuate the power from KoradiTPS and from other private developers in that area. Above line is proposed to provide interconnectivity between PGCIL network and 400 KV Koradi-II.

Justification

This line will enable evacuation of power from central sector and provide connectivity to PGCIL network.

The petitioners contended that since the line is going to provide interconnectivity between PGCIL and Koradi-II plant, the line must be taken as being laid for inter-State transmission. This submission, though plausible, does not merit acceptance in this case. The 400 KV electric line in question is being constructed for evacuation of power from Koradi Thermal Power Station to Wardha Power Grid. Both points are within the State of Maharashtra. From the Wardha Power Grid power is distributed to various points in the State of Maharashtra which is apparent from the maps Annexures RR21 and RR22 filed along with the additional submissions of the respondent no.2 dated 29/2/2012. It is a fact that the PGCIL has a national network for distribution of power to various parts of the country and one of the points from which it takes electricity is located at Wardha. There is apparently some arrangement whereunder the PGCIL is entitled to take electricity from the States in the country, including the State of Maharashtra and one of the points is located at Wardha. It is in that sense that the Transmission Company has stated in the Objective of Feasibility Report that the line is proposed to provide interconnectivity between PGCIL network and 400 KV Koradi-II. Merely because interconnectivity with the national network is possible, it cannot be said that the line itself is being constructed for the purposes of inter-State transmission. At this juncture, it may be noted that the Transmission Company has been specified as a State Transmission Utility by the State Government under sub-section (1) of Section 39 of the Electricity Act, 2003 whose functions are limited to transmit electricity only through the intraState transmission system vide sub-section (2) of Section 39. It is however bound to provide open access to its transmission system to other licensees vide 39(2), which reads as follows:

39. State Transmission Utility and functions. ---

(1) .........

(2) The function of the State Transmission Utility shall be

(a) to undertake transmission of electricity through intraState transmission system;

(b) to discharge all functions of planning and co-ordination relating to intraState transmission system with

(i) Central Transmission Utility;

(ii) State Governments;

(iii) generating companies;

(iv) Regional Power Committees;

(v) Authority;

(vi) licensees;

(vii) any other person notified by the State Government in this behalf;

(c) to ensure development of an efficient, coordinated and economical system of intraState transmission lines for smooth flow of electricity from a generating station to the load centres;

(d) to provide nondiscriminatory open access to its transmission system for use by-

(i) any licensee or generating company on payment of the transmission charges; or

(ii) any consumer as and when such open access is provided by the State Commission under sub-section (2) of section 42, on payment of the transmission charges and a surcharge thereon, as may be specified by the State Commission:

Provided that such surcharge shall be utilised for the purpose of meeting the requirement of current level crosssubsidy:

Provided further that such surcharge and cross subsidies shall be progressively reduced in the manner as may be specified by the State Commission:

Provided also that the manner of payment and utilisation of the surcharge shall be specified by the State Commission:

Provided also that such surcharge shall not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use.

28. Thus a State Transmission Utility, such as the Transmission Company, may provide vide Clause (d) above, nondiscriminatory open access to its transmission system for use by any other Licensee or generating companies on payment of transmission charges or any other consumer. It is, therefore, clear that the mere provision of interconnectivity with the national grid will not change the purpose of electric line in question from intraState to inter-State. We are, therefore, of the view that KoradiWardha line is an intraState line and that the Transmission Company is properly carrying out the work of construction of the line from Koradi TPS to Wardha under the authorization dated 24/8/2006 issued by the Government of Maharashtra.

CHALLENGE TO ORDERS UNDER SECTION 16 OF THE INDIAN TELEGRAPH ACT, 1885:

29. It must be noticed that Section 16 empowers the District Magistrate to make an order that the Telegraph Authority shall be permitted to exercise powers under Section 10, if the exercise of powers for placing an electric line is resisted or obstructed. Further the Section makes a provision for an application to be made to the District Judge, in case a dispute arises concerning the sufficiency of compensation to be paid under Section 10. In these cases, the applications were made by them to the District Magistrate within whose jurisdiction the property, over which the line is to be passed and a tower is to be situated, falls. All these applications were duly registered as revenue cases and the owners and occupiers of the land were heard after notices were issued to them. The applicant has pointed out its authorization to do the work of placing of the line and that the work was obstructed by the nonapplicants and it is getting stalled on account of obstructions created by the nonapplicants and the other persons. The District Magistrate has taken into account the reply and documents filed by the parties and after hearing the parties, has come to the conclusion that the Transmission Company is entitled for permission to carry out and continue the work of the transmission line in exercise of the statutory function as a State Transmission Utility. It was contended on behalf of the petitioners that the petitioners had raised numerous contentions which have not been gone into. We find that most of the contentions about which grievance is made that they were not considered are outside the scope of enquiry under Section 16, such as whether the Government of Maharashtra is an appropriate Government or not, whether the notification under Section 164 has been properly issued or not and whether the State Government can issue a notification in respect of a law which can only be enacted by Parliament under Entry 31 of List-I of the Seventh Schedule and so on. In terms of Section 16 of the Indian Telegraph Act, 1885, the enquiry is restricted to whether there is any justification for resisting or obstructing the powers under Section 10 and whether the Telegraph Authority should be permitted to exercise the powers. In the circumstances, we see no merit in the contention, which is rejected.

30. It was next contended that the authorization under Section 164 can only be made, inter alia, for the purpose of proper co-ordination of works and there is no such purpose apparent from the authorization. We fail to see any merit in this contention. Undoubtedly the term "works" in the context refers to various activities referred in Section 67 of the Electricity Act, 2003 such as opening and breaking up the soil and pavement of any street, railway or tramway; opening and breaking up of any sewer, drain or tunnel; altering the position of any line or works or pipes; laying down and placing electrical lines and all other acts necessary for the transmission or supply of electricity. This obviously requires co-ordination since these various works are normally done by various other local authorities whose permission and cooperation is necessary to prevent a chaos. It was also contended by Mr. Sohoni and Mr. Mandlekar that Section 10 of the Indian Telegraph Act, 1885, only confers the power to place a telegraph line and post. Therefore, the transmission companies are not entitled to place towers instead of posts. Section 3(5) defines the term "post" as follows:

3. Definitions.- In this Act, unless there is something repugnant in the subject or context,

(1) ..... (2) ..... (3) ..... (4) .....

(5) "post" means a post, pole, standard, stay, strut or other above ground contrivance for carrying, suspending or supporting a telegraph line;"

A tower undoubtedly supports a line and, therefore, must be construed to be a post within the meaning of sub-section (5). The work for telegraph line undoubtedly be understood as referring to an electric line in view of Section 164 which specifically empowers the appropriate Government to issue an order in writing for conferring any of the powers of the Telegraph Authority under the Telegraph Act with respect to placing of telegraph lines and post "for the placing of telegraph lines".

31. Mr. Mandlekar, learned counsel for the petitioners in W. P. Nos. 5811/2011, 5812/2011, 5813/2011, 6093/2011 and 6094/2011 submitted that the petitioners therein have not been given an opportunity of being heard. The learned counsel referred to the communication by transmission company to the Collector, Wardha where only seven persons were shown as obstructing the work of laying of lines. According to the learned counsel, these petitioners' names have been added in the final order under Section 16, though no notice of the transmission company's application under Section 16 for removal of obstruction was served on these petitioners. The learned Addl. G. P. is not in a position to point out if, in fact, the notices were issued to these petitioners and these petitioners were heard. In the circumstances, we direct that the Collector, Wardha shall issue notice to the petitioners in the writ petitions mentioned hereinabove and pass an appropriate orders under Section 16 and till such orders are passed, the transmission company shall not carry on any work in the lands of these petitioners.

PERMISSION OF LOCAL AUTHORITY :

32. Mr. Mandlekar, the learned counsel for the petitioners, submitted that though the transmission company is laying lines in lands of local authorities, which are subject matter of Writ Petition Nos. 5811/2011, 5812/2011 and 5813/2011, no permission of the local authority has been obtained by the transmission company as required by section 10 (c) and 12 of the Indian Telegraph Act, 1885. We find that the local authority has not made any such grievance. It would be for the local authority to raise this issue, if aggrieved thereby, before the authorities.

33. In the result, there is no merit in these petitions, which are hereby dismissed. Rule discharged. Interim order, if any, stands vacated. No order as to costs.

34. In view of the dismissal of the main petitions, all the Civil Applications do not survive and stand disposed as such.

35. At this stage, Mr. Joshi and Mr. Mandlekar, learned counsel for the petitioners, pray for stay of the judgment of this Court and for a direction to the respondents to maintain status quo. Having regard to the circumstances of the case and in particular the fact that the project involves laying down of electric lines which is essential for the State and having further regard to the fact that the project has already been held up since June2011, we are not inclined to grant directions as prayed for. The prayer is rejected. Certified copy expedited.

Petition dismissed.