G H CENTURY RAYON LIMITED versus IVP LIMITED AND OTHERS on 27 November 2019

1. Leave granted.

2. The first respondent – IVP Limited is a company and owner ofBthe non-agricultural land at village Vadavali bearing S. No. 43/32admeasuring about 20 R Pot Kharaba 1 R and at village Mohane bearingS. No. 42/12 admeasuring about 22R 30P and S. No. 44/2 admeasuringabout 50 R Pot Kharaba 3R. The first respondent has filed a suit forpermanent injunction with a grievance that the Maharashtra StateElectricity Distribution Company Limited (‘MSEDC’ for short), theCsecond respondent before us, had appointed contractors who wereexcavating its land for construction of the electricity transmission towerswithout any prior approval.

3. The appellant – Century Rayon Limited, who is also a defendantin the suit, is a company engaged in the business of manufacture andDsale of chemicals and has its plant at village Mohane, Taluka Kalyan,District Thane. The aforesaid electricity transmission towers are beingconstructed on the application dated 2[nd] May 2016 made by the appellantto the MSEDC for Line In Line Out (LILO) on 100 KVMohaneAmbernath DC TL. Thereupon, the sanction was granted byEthe Maharashtra State Electricity Transmission Co. Ltd (‘MSETCL’ forshort) vide letter 24[th] May 2017 subject to various terms and conditionsincluding that the right to way problem for laying of line is to be sortedout by the appellant at its cost.

4. The present appeal impugns the judgment and order dated 9[th]January 2019 passed by the High Court of Bombay, which dismissesFWrit Petition (Stamp) No. 19175 of 2018, and thereby affirms the orderpassed by the trial court and the first appellate court restraining theappellant and the second respondent by way of temporary injunctionfrom “making holes for erecting poles on any part of the suit lands withoutfollowing due process of law”.

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5. A number of issues and contentions have been raised before usbut we are not inclined to enter into a detailed discussion, for we aredealing with an interim injunction order and are inclined to grant relief tothe appellant subject to certain conditions, leaving the main issues to bedecided and adjudicated in the civil suit and under the provisions of the H

Indian Telegraph Act, 1885 (‘Telegraph Act’ for short) read with theElectricity Act, 2003 (‘Electricity Act’ for short).

6. There were certain lapses on the part of the MSETCL/MSEDCand the appellant, as has been noticed in the impugned order, on accountof the failure to take necessary permission from the District Magistratewhen there was obstruction and objection to the work of erecting theelectricity transmission towers on the first respondent’s land. However,it is an accepted and admitted position that pursuant to the interim orderpassed by the first appellate court on 25[th] April 2018, the appellant hadinitiated appropriate proceedings through licensing authority before theDistrict Magistrate, Thane and thereupon vide order dated 28[th] August2018 necessary permission for erection of the towers and setting uptransmission line has been granted subject to payment of compensationto the first respondent in terms of Section 16(1) to Section 16(4) readwith Section 10 of the Telegraph Act. It is correct that the interim orderdated 25[th] April 2018 was set aside by the Bombay High Court videorder dated 17[th] May 2018, albeit it is an accepted position that as amatter of fact the electricity transmission towers on the land of the firstrespondent have already been constructed. Therefore, and in a way, theMSEDC is already using the land of the first respondent. The appellanthas highlighted and the MSEDC affirms that 80% of the work of layingthe transmission line is already over and but for the injunction orderunder challenge the transmission line would have been activated andoperationalised. Clearly, therefore, the balance of convenience does notjustify passing of an interim injunction order in favour of the firstrespondent. It is also accepted that the District Magistrate, Thane videorder dated 28[th] August 2018 has granted the necessary permission forerection of the towers and setting up of the transmission line on the landof the first respondent. The relevant portion of this order, which has notbeen set aside, reads as under:

“[…] Therefore, the line plan finalised is the most proper plan.Therefore, in respect of losses to be caused, proper compensationas may be fixed by the Hon’ble District Magistrate will be paid tothe concerned.

That means, overall by considering all options suggested byconcerned, technically most proper line is found to have beenincluded by MSETCL with their aforesaid letter dt. 30/07/2018.Further as per proviso in Section 10(d) of Indian Telegraph Act, A

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Awhile exercising the said power action will be taken to pay fullcompensation in respect of their losses to all interested persons,after ensuring that minimum loss will be caused.”

7. On the aspect of use of land belonging to a third party forsetting up of the electricity transmission line, we would refer to theBjudgment of this Court in Power Grid Corporation of India Limited v.Century Textiles and Industries Limited and Others[1]wherein aDivision Bench of this Court while examining Section 164 of the ElectricityAct had observed that the appropriate Government may by order inwriting for the purpose of placing of electric lines or electrical plant forthe transmission of electricity necessary for the proper coordination ofCworks, confer on any public officer, licensee or any other person engagedin the business of supplying electricity under the Electricity Act any ofthe powers that the telegraph authority possesses under the TelegraphAct with respect to the placing of the posts and lines for the purposes ofa telegraph. This conferment of powers would be subject to suchDconditions and restrictions, if any, that the appropriate Government mayimpose and the provisions of the Telegraph Act. Reference was madeto Sections 10[2] and 16[3] of the Telegraph Act which postulates the powerof the telegraph authority to maintain telegraph lines and posts and the 1 (2017) 5 SCC 143E2 Section 10. Power for telegraph authority to place and maintain telegraphlines and posts.—

The telegraph authority may, from time to time, place and maintain a telegraph lineunder, 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 sectionexcept for the purposes of a telegraph established or maintained by the CentralFGovernment, or to be so established or maintained.

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

(c) except as hereinafter provided, the telegraph authority shall not exercise thosepowers in respect of any property vested in or under the control or management ofGany local authority, without the permission of that authority; and(d) in the exercise of the powers conferred by this section, the telegraph authority shalldo as little damage as possible, and, when it has exercised those powers in respectof any property other than that referred to in clause (c), shall pay full compensationto all persons interested for any damage sustained by them by reason of the exerciseof those powers.

3 Section 16. Exercise of powers conferred by section 10, and disputes as toHcompensation, in case of property other than that of a local authority.

provisions relating to compensation in exercise of those powers. Clause(d) to Section 10 requires that the telegraph authority shall do as limiteddamage as possible in exercise of powers to place and maintain telegraphlines and posts, and full compensation shall be paid to all persons interestedfor any damage sustained by them. Sub-section (1) to Section 16 statesthat in case of resistance or obstruction in respect of powers exercisedby the telegraph authority under clause (d) to Section 10, the DistrictMagistrate may in his discretion make an order that the telegraphauthority shall be permitted to exercise the powers. Sub-section (3) toSection 16 states that if any dispute arises with regard to the sufficiencyof the compensation to be paid under clause (d) to Section 10, the DistrictJudge within whose jurisdiction the property is situated shall determinethe compensation. On the legal effect of these provisions, this Court hadobserved:

“21. It is not in dispute that in exercise of powers under theaforesaid provision, the appropriate Government has conferredthe powers of telegraph authority vide Notification dated24-12-2003 exercisable under the Telegraph Act, 1885 upon thePower Grid. It may also be mentioned that a Central transmissionutility (CTU) is a deemed licensee under the second proviso toSection 14 of the Electricity Act, 2003. Power Grid is a Centraltransmission utility and is, therefore, a deemed licensee under theElectricity Act, 2003. This coupled with the fact that Power Gridis treated as authority under the Telegraph Act, 1885, it acquiresall such powers which are vested in a telegraph authority under

(1) If the exercise of the powers mentioned in section 10 in respect of property referredto in clause (d) of that section is resisted or obstructed, the District Magistratemay, in his discretion, order that the telegraph authority shall be permitted toexercise them.

(2) If, after the making of an order under sub section (1), any person resists the exerciseof those powers, or, having control over the property, does not give all facilities forthis being exercised, he shall be deemed to have committed an offence under section188 of the Indian Penal Code, 1860 (45 of 1860).

(3) If any dispute arises concerning the sufficiency of the compensation to be paidunder Section 10 clause (d), it shall, on application for that purpose by either of thedisputing parties to the District Judge within whose jurisdiction the property issituate, be determined by him.

(4) If any dispute arises as to the persons entitled to receive compensation, or as to theproportions in which the persons interested are entitled to share in it, the telegraphauthority may pay into the court of the District Judge such amount as he deemssufficient or, where all the disputing parties have in writing admitted the amount A

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SUPREME COURT REPORTS

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Athe provisions of the Telegraph Act, 1885 including power toeliminate any obstruction in the laying down of power transmissionlines. As per the provisions of the Telegraph Act, 1885, unobstructedaccess to lay down telegraph and/or electricity transmission linesis an imperative in the larger public interest. Electrification ofvillages all over the country and availability of telegraph lines areBthe most essential requirements for growth and development ofany country, economy and the well-being/progress of the citizens.The legislature has not permitted any kind of impediment/obstruction in achieving this objective and through the scheme ofthe Telegraph Act, 1885 empowering the licensee to lay telegraphClines, applied the same, as it is, for laying down the electricitytransmission lines.

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23. Section 10 of the Telegraph Act, 1885 empowers the telegraphauthority to place and maintain a telegraph line under, over, alongDor across and posts in or upon any immovable property. Theprovision of Section 10(b) of the Telegraph Act, 1885 makes itabundantly clear that while acquiring the power to lay downtelegraph lines, the Central Government does not acquire any rightother than that of user in the property. Further, Section 10(d) ofEthe Telegraph Act, 1885 obliges the telegraph authority to ensurethat it causes as little damage as possible and that the telegraphauthority shall also be obliged to pay full compensation to all personsinterested for any damage sustained by them by reason of theexercise of those powers.

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26. We also do not find that the action of the Power Grid, in thegiven circumstances, by not shifting the transmission lines was 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 hearingsuch of them as desire to be heard, shall determine the persons entitled to receiveGthe compensation or, as the case may be, the proportions in which the personsinterested 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 personto recover by suit the whole or any part of any compensation paid by the telegraphHauthority, from the person who has received the same.

arbitrary. From the facts noted above, it becomes apparent thatnot only it was unfeasible to change the alignment as almost entirework had already been completed by the time the writ petitionerstarted protesting against this move, even otherwise, the PowerGrid has given sufficient explanation to point out that all relevantfactors/aspects were kept in mind while laying down the impugnedtransmission lines. Such transmission lines had to be in straightline to the extent possible for eliminating loss of transmission. It isalso explained that electricity transmission is usually laid or crossedover agricultural land where minimum extent of land gets utilisedfor erecting towers and where agricultural activities are notprejudiced/obstructed in any manner. The purpose is to avoidbuildings, religious places, ponds, etc. while laying down thesetransmission lines. It is only when it becomes inevitable that towersare placed on the private lands to the minimum and least extentpossible. That is what was tried to achieve in the instant case.Another important factor, which needs repetition at this stage isthat no blasting is permissible within 300 m from the 400 kV line(already existing) or the tower structure. Mining of limestone canbe taken up by adopting the methods other than use of explosive/blasting — without damage to the tower foundation/tower structureor the line, which can be accomplished by using jack hammer/pneumatic hammer with compressor so as to avoid any damageto the line or tower. This aspect has also been taken note of bythe learned Single Judge of the High Court in the judgment dated11-3-2008. The Division Bench did not differ with any of thesefindings.”

The decision highlights the imperative and the need forunobstructed access for laying down the electricity transmission lines inthe larger public interest as these are essential requirements for growthand development of the country, economy and well-being of the citizens.

8. Counsel for the first respondent had submitted that the ratio ofthe aforesaid decision is not applicable as the electricity transmissionline in the present case is for the benefit of the appellant and not for thepublic at large. This is factually disputed by the appellant. The MSETCLin its affidavit has stated that the installation of transmission lines for thegeneration of High Voltage Electricity is a policy decision of theGovernment and for the public benefit at large. The service line even if ABC

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Ais in the nature of “Dedicated Distribution Facilities” has no exclusivityand the MSETCL would be entitled to tap the said service line for providingelectricity to other consumers. This factual aspect would be a subjectmatter of the trial. It would not be appropriate at this stage to disregardthe statement made by the MSETCL to stall the setting up and activationof the electricity transmission lines.B

9. During the course of hearing, attempts were made by the parties,that is, the appellant and the first respondent, to settle the matter albeitthe talks had failed as the first respondent wanted the appellant to purchasea substantial portion of the land owned by it. The appellant expressed itsinability to purchase a substantial portion of the land as demanded by theCfirst respondent. It was stated by the appellant that it does not requireownership of such a large area of land. We would not like to commenton the aforesaid stands of both sides and have noted the same only toobserve that the dispute does have a commercial aspect, that is monetarycompensation which we will not like to adjudicate and would leave thisDissue open, given the order of the District Magistrate, Thane and as thepresent appeal is directed against an interim order. Continuation ofinjunction is not warranted and justified in law.

10. We are, therefore, inclined to set aside the impugned order asalso the injunction order subject to the appellant making an ad hocEpayment of Rs. 20,00,000/- (rupees twenty lakhs only) in addition to thepayments already made. On the said payment being made to the firstrespondent, the MSEDC and their contractors would be entitled tocontinue and complete the work of erection of the electricity transmissiontowers on the land of the first respondent. The payment made would besubject to the outcome of the civil suit or the proceedings under theFTelegraph Act for quantifying the compensation payable to the firstrespondent.

11. The appeal is allowed in the aforesaid terms without any orderas to costs. All pending applications stand disposed of.

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Bibhuti Bhushan Bose

Appeal allowed.

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