Indian Telegraph act and Electricity Act

For the purpose of distancing state governments from tariff determination, The Electricity Regulatory Commissions Act was enacted in 1998. So as to reform the electricity sector further by participation of the private sector and to bring in competition, the Electricity Act was enacted in 2003.

Role and purpose of  State authority

The Central government, on its part, has formed a central authority with responsibility to develop a national power policy and coordinate activities of various agencies or state electricity boards. The authority advises the Department of Power on technical, financial and economic matters. The country has been demarcated into five regions – North, West, South, East and North-east. Regional electricity boards were set up in 1964-65 in each of these regions.

1. The Northern Region covers Haryana, Himachal Pradesh, Jammu & Kashmir, Punjab, Rajasthan, Uttar Pradesh, Chandigarh and Delhi.
2. Western Region covers Gujarat, Madhya Pradesh, Maharashtra, Goa, Daman and Diu and Dadra and Nagar Haveli.
3. The Southern Region covers Andhra Pradesh, Karnataka, Kerala, Tamil Nadu and Pondicherry.
4. Eastern Region covers Bihar, Orissa, West Bengal and Sikkim.
5. North-Eastern Region covers Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura.
    

These boards are merely advisory bodies. They review the progress of power development schemes in the region; plan and ensure integrated operation of all the power systems in the region; prepare a coordinated overhaul and maintenance programme for the generating plants in the region; determine the operation schedules to be followed by all the plants in the region; determine the amount of surplus power available for exchange between the states; and determine tariff struc­tures governing exchange of power within the region. No single state can possibly solve the problem of energy deficiency and hence has arisen the need for the formation of regional power grids.

Development and growth
Significant progress has been made in the expansion of transmission and distribution facilities in the country. Fairly well interconnected systems are presently available in all regions of the country except the north-eastern region. Inter-state and inter-regional transmission lines would form part of the national power grid. It will promote integrated operation and transfer of power from one system to another with the ultimate objective of ensuring optimum utilisation of resources.

Every successive Five-Year Plan has added to the energy capability of the nation and the national and regional power grids have resolved the power shortage crisis in underdeveloped states. Moreover it has helped in rapid and uniform industrial development of the country. The states feel reassured of their energy requirements and are inviting global investments on the basis of this infrastructural facility of the grids.

Why did the Indian Telegraph Act come into existence?

The Indian Telegraph Act, passed in 1883, was intended to give the Central Government power to establish telegraph lines on private as well as public property. At the time the Act was conceived, India was still under the rule of the British Raj. Telegraph was first installed in 1851 and a trans-India telegraph was completed three years later in 1854.[1] The telegraph had become, in the intervening thirty years, an important tool for British dominion over India by quelling rebellions and consolidating information. It was thus important for the British to have control of telegraphy and infrastructure across the subcontinent.

Section 10 in The Indian Telegraph Act, 1885

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:

1. 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;
2. 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
3. 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;
4. 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.

 

Section 16 and 18 of the Indian Telegraph Act 1885 read as under; Section 16 of the Indian Telegraph Act, 1885 reads as under:

• Exercise of powers conferred by Section 10, and disputes as to compensation, in case of property other than that of a local authority.
   
• 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.
   
• 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 (45 of 1860).
   
• 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 situated, be determined by him.
   
• 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.
   
• 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 Subsection 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.

Example related to growing of trees on private land and related provisions

The moment finding is reached that removal of trees by Board was not under Section 18 of Telegraph Act but under Section 10(d) thereof, the impugned order holding that Section 16 has no application needs to be interfered with, as there is corresponding failure to exercise jurisdiction.

Section 18 in The Indian Telegraph Act, 1885
18. Removal of trees interrupting telegraphic communication:

1. If any tree standing or lying near a telegraph line interrupts, or is likely to interrupt, telegraphic communication, a Magistrate of the first or second class may, on the application of the telegraph authority, cause the tree to be removed or dealt with in such other way as he deems fit.
2. When disposing of an application under sub-section (1), the Magistrate shall, in the case of any tree in existence before the telegraph line was placed, award to the persons interested in the tree such compensation as he thinks reasonable, and the award shall be final. M. Section 18 of the Indian Electricity Act 2003 read as under ; Section 18 in The Indian Electricity Act, 1910 18.

Overhead lines:

1. Save as provided in section 13, sub-section(3) nothing in this Part shall be deemed to authorise or empower a licensee to place any 1[overhead line] along or across any street, railway, tramway, canal or waterway unless and until the State Government has communicated to him a general approval in writing of the methods of construction which he proposes to adopt: Provided that the communication of such approval shall in no way relieve the licensee of his obligations with respect to any other consent required by or under this Act.
2. Where any 1[overhead line] has been placed or maintained by a licensee in breach of the provisions of sub-section (1), the State Government may require the licensee forthwith to remove the same, or may cause the same to be removed, and recover from the licensee the expenses incurred in such removal. 2[(3) Where any tree standing or laying near an 1[overhead line] or where any structure or other object which has been placed or has fallen near an 1[overhead line] subsequently to the placing of such line, interrupts or interferes 14 with, or is likely to interrupt or interfere with, the conveyance or transmission of energy or the accessibility of any works a Magistrate of the first class or, in a presidency-town.
3. The Commissioner of Police, may, on the application of the licensee, cause the tree, structure or object to be removed or otherwise dealt with as he thinks fit.]
4. When disposing of an application under sub-section (3), the Magistrate or Commissioner of Police, as the case may be, shall, in the case of any tree in existence before the placing of the 1[overhead line], award to the person interested in the tree such compensation as he thinks reasonable, and such person may recover the same from the licensee.

  [Explanation: For the purposes of this section, the expression "tree" shall be deemed to include any shrub, hedge, jungle-growth or other plant.]
 
Guideline given by the Ministry of Power by way of resolution dated. 15.10.2015; compensation may be granted for the installation of electricity poles on private property.
 
Compensation towards diminution of land value in the width of Right of Way (RoW) Corridor due to laying of transmission line and imposing certain restriction would be decided by the States as per categorization/type of land in different places of States, subject to a maximum of 15% of land value as determined based on Circle rate Guideline value Stamp Act rates.
 
Compensation @ 85% of land value as determined by District Magistrate or any other authority based on Circle rate/ Guideline value/ Stamp Act rates for tower base area (between four legs) impacted severely due to installation of tower/pylon structure;

• Section 16(3) of Indian Telegraph Act, 1885 is not available to the landowner reached by learned District Judge is found to be misconceived and erroneous. The application moved under Section 16(3) of Indian Telegraph Act, 1885 is restored to the file of the District Judge for its further adjudication on merits.

Violation of Section 12 of the Electricity Act.

The judgement of the Hon'ble High Court in the case of Himmatbhai Vallabhbhai Patel Vs. Chief Engineer (Project) Gujarat Energy Transmission[2]  , wherein the Hon'ble Court states that ; As per Section 12 of the Indian Electricity Act, 1910, the consent of the local authority or of the concerned owner or occupier is necessary to enable the licensee to lay down or place any electric supply line or other work in, through or against any building or on, over or under any land not dedicated to public use whereon any electric supply line or work has not already been lawfully laid down by such licensee.

• Under Section 51 of the Electricity Act, 1910, it was permissible for the Government to confer upon any public officer, Transmission Utility, Transmission Licensee or any other person engaged in the business of transmission or supplying energy to the public, any of the powers which the telegraph authorities possess under the Indian Telegraph Act, 1885 for the placing of electric supply lines.

However, a person authorised under Section 51 can do so without the consent of the owner or occupier. The Full Bench further observed as under : "Though Section 12 enumerates various acts that can be done by a licensee for the purpose of laying down or placing electric supply-lines, such acts can be done only with the consent of the local authority or of the owner or occupier concerned (Section 12 (2)). This is no power at all for. Without the consent nothing can be done.

What can be done, therefore, under Section 12 cannot be compared with the exercise of powers under Section 10 of the Telegraph Act by a person empowered to do so under Section 51 of the Electricity Act."
 
From the ratio laid down in the above decisions, with which we are in complete agreement, it is clear that prior to the enactment of Electricity Act, 2003, consent of the owner or occupier was necessary where there was no authorization under Section 51 of the Indian Electricity Act, 1910.
 
Similarly, where a sanctioned scheme is published as required under Section 28 read with Section 42 of the Electricity (Supply) Act, 1948, transmission towers or lines can be laid on any private land without giving any notice and without causing damage to the property.
 
However, if any damage is caused, compensation shall be paid for the damage sustained as provided under Section 10 of the Indian Telegraph Act, 1885. Both the Indian Electricity Act, 1910 and the Electricity (Supply) Act, 1948 stood repealed under the Electricity Act, 2003 which came into force with effect from 10.06.2003.
 
Conclusion and relevant case laws
Under the new Act i.e., Electricity Act, 2003 though there is no provision with regard to 19 preparation and sanctioning of any scheme relating to establishment of generating stations, substations or transmission lines as required under Section 28 of the repealed Electricity (Supply) Act, 1948, provisions similar to Sections 12 and 51 of the Indian Electricity Act, 1910 have been incorporated under Section 67 and Section 164 respectively.
 
For the aforesaid reasons, we are of the opinion that Section 164 of the Electricity Act, 2003 read with Section 10 of the Indian Telegraph Act, 1885 recognized the absolute power of the Gujarat Energy Transmission Corporation Limited to proceed with placing of electric supply lines or electric polls for the transmission of electricity on or over the private lands subject to the right of the owner/occupier to claim compensation if any damage is sustained by him by reason of placing of such electric supply lines.

Article 300-A of the Constitution of India provides for guaranteed right to property for citizens which is nothing but Human right which cannot be taken away unreasonably, arbitrarily and illegally except in accordance with law relating to property acquisition etc.

In other words, neither the acquisition of the lands is necessary nor there is any need for consent of the owner or occupier:

• In the case of T.Bhuvaneswari vs The District Collector[3] With regard to coconut trees, the Corporation has submitted that the petitioner would be paid compensation for the same, as they have to be cut, for the purpose of laying of transmission lines. In so far as turmeric plants are concerned, the Corporation has submitted that the Petitioner can continue to grow the same, and damage, if any to the same, during the execution/construction would be suitably compensated.
   
• In the case of Century Rayon Limited Vs Ivp Limited And Others[4] the bench said that, "as Section 10(d) of the Telegraph Act, 1885 obliges the telegraph authority to ensure that it causes as little damage as possible and that the telegraph authority shall also be obliged to pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers"
   
• Section 10 (d) of the Telegraph Act. it is also covered by the Hon'ble Bombay High Court in the judgement / order of Kalpana Rukhabdas Jain vs Chairman And Anr[5], wherein the Hon'ble Bombay High Court states that ; The moment finding is reached that removal of trees by Board was not under Section 18 of Telegraph Act but under Section 10(d) thereof, the impugned order holding that Section 16 has no application needs to be interfered with, as there is corresponding failure to exercise jurisdiction
   
• A Full Bench of High Court of Kerala in Bharat Plywood and Timber Products Private Ltd. v. Kerala State Electricity Board, Trivandrum and others[6],having interpreted the scope and object of Sections 12 and 51 of Indian Electricity Act, 1910 held that a licensee who has not been empowered by the State Government under Section 51 of the Indian Electricity Act, 1910 cannot place any electric supply lines in or over any property without the consent of the owner or occupier thereof.

End-Notes:

1. No. 1380: Indian Telegraph. uh.edu. Retrieved 15 May 2019.
2. AIR 2011 (NOC) 405 (GUJ.)
3. W.P.No.18548 of 2013
4. Civil Appeal No. 9063 Of 2019
5. 2006 (4) BomCR 461
6. AIR 1972 Kerala 47 (FB)