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The Indian Telegraph Act, 1885
The Electricity (Supply) Act, 1948
Section 10 in The Indian Telegraph Act, 1885
The Indian Electricity Act, 1910
Section 16 in The Indian Telegraph Act, 1885
Citedby 3 docs
W.P.No.22820 Of 2012 vs The District Collector on 14 September, 2012
S.J.Sagayamarsan vs The Superintendent Engineer on 11 January, 2013
Mrs. P. Paul Thangam vs The Tamil Nadu Electricity Board on 21 September, 2012

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Madras High Court
M/S.Les Ateliers De Pondicherry ... vs Pondicherry Electricity ... on 10 November, 2011

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 10.11.2011

CORAM:

THE HONOURABLE MR.JUSTICE V.DHANAPALAN

W.P.No.25793 OF 2011

& M.P.No.1 of 2011

M/s.Les Ateliers De Pondicherry Pvt. Ltd.,

Represented by Director Aditya Goenka,

15/7, Vazhudavoor Road, Kurumbapet,

Pondicherry-605 009. .. Petitioner

Vs.

1. Pondicherry Electricity Department,

represented by the Supervisor,

137, Nethaji Subhash Chandra Bose Salai,

Puduchery-1.

2. M/s.Power Grid Corporation of India,

by its Chief Manager,

400/230 K.V. Sub Station,

Ramanathapuram Village,

Thondamanatham Main Road,

Pondicherry-605 502. .. Respondents

Writ Petition under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, to call for the records of the first respondent in Notice No.523, dated 15.10.2011, quash the same and consequently direct the respondents to adopt the final proposal conveyed by their letter SR-II/PDY/CAO/F-PED/2009 2420, dated 29.9.2009.

For petitioner : Mr.R.Shankaranarayanan

For respondents : Mr.D.Sreenivasan,

Govt. Pleader (Pondy) for R-1

Mr.Jayesh B.Dolia for R-2

O R D E R

Heard Mr.R.Shankaranarayanan, learned counsel for the petitioner; Mr.D.Sreenivasan, learned Government Pleader (Pondicherry) for the first respondent and Mr.Jayesh B.Dolia, learned counsel for the second respondent.

2. A notice in No.523, dated 15.10.2011, issued by the first respondent in exercise of the powers vested with the Pondicherry Electricity Department/EHV, under Sections 10 to 19 of the Indian Telegraph Act, 1885 read with Section 42 of the Electricity (Supply) Act, 1948, as amended up-to-date, has been called in question in this Writ Petition, seeking to quash the same and for a consequential direction to the respondents to adopt the final proposal conveyed by their letter SR-II/PDY/CAO/F-PED/2009 2420, dated 29.09.2009.

3. The case of the petitioner is as follows:

(a) The petitioner is a private limited company, hereinafter referred to as "the company". The company was originally promoted by a French company, namely, M/s.Societe Des Atliers Louis Vuitton and being managed by their officials in accordance with law. The shareholding pattern of the company has been changed in June 2011; a new set of promoters entered the company and one Aditya Goenka is elected as a Director on 20.06.2011. (b) The company is manufacturing and selling various types of leather goods. It is carrying on business from two factoriesone located at 15/7, Vazhudavoor Road, Kurumbapet, Puducherry and the other located at S.F.No.9/9, 9/8, 8/2, Permabai Village, Vanur Taluk, Villupuram District. It bought a large parcel of lands situate at Field R.S.Nos.43, 13/1, 13/3A, 13/3B, 15/1, 15/2, 16/2, 16/3, 16/4A, 16/4B, 17/1A, 17/3A, 17/3B, 17/3C, 17/3D, 17/3E, 17/3F and 17/4, Thondamanatham Village in Villayanur Commune (hereinafter referred to as the 'subject lands'), of an extent of 95,000 Square meters in all. The subject lands were purchased with the objective of consolidating all the factories and to set up a state-of-the-art comprehensive facility to manufacture leather goods. (c) After purchase of the subject lands, the company sought to convert the same into industrial use for the purpose of setting up a factory and submitted a single window common application before the District Industrial Centre, Puducherry for HT power feasibility certificate. It applied for necessary planning permission to the Government of Puducherry for setting up an industry in the lands. (d) While so, on 11.07.2008, the Electricity Department of Puducherry/first respondent herein informed the company that the Department is laying a new 230 KV line and the proposed 230 KV line would pass through the lands of the petitioner-Company. The first respondent also requested the company to provide sufficient space for erecting 230 KV towers. Since the proposed line was to pass through the front portion of the subject lands, the company initiated steps to lay the transmission line in a manner that it would not affect its plan to set up the industry and, at the same time, not to affect the proposed transmission line. (e) In the meantime, the Town and Country Planning Department, Government of Puducherry, on 22.01.2009, communicated its no objection to the company for setting up an industry in the subject lands. On 14.05.2009, the Superintending Engineer-I of the first respondent sent a letter to the company informing that they have discussed with the second respondent about the conversion of the proposed 230 KV line into 230 KV UG cable system and the letter also set out the requirement of the second respondent to take up the cable laying works and sought acceptance of the company within a week to the terms of the second respondent, for which, the company replied vide letter dated 22.05.2009 seeking alignment sketch that was to be attached to the letter dated 14.05.2009, but was inadvertently omitted to be attached. The first respondent, vide its letter dated 02.06.2009, enclosed a copy of the sketch and informed that if no reply was received, the first respondent would presume that the company was not agreeable to the terms of the second respondent. (f) By a letter of the second respondent, dated 01.08.2009, a meeting was sought to be convened on 09.09.2009 at 10.30 a.m. in the chamber of the Superintending Engineer-I, for which, the company confirmed its participation, vide its letter dated 4.9.2009. In the said meeting, the parties reached an agreement to the effect that the line 1 would be put outside their lands, the required tower being erected behind parcel 13/3A and with regard to line 2, Power Grid would survey on September 12th the adjacent lands in the presence of the company and its consultants in order to seek the best solution for both the Electricity Department and the company and it would be in the best common interest of the project of the State of Puducherry and especially the area of Thondamanatham to remove the towers for HT lines from the company's land. (g) On 29.09.2009, the second respondent sent a letter to the company on the issue, confirming the meeting held on 09.09.2009, and also stated that it was decided to shift the tower outside the premises of the company, provided it purchased the lands for construction of the tower. The second respondent was concerned about the demand of the petitioner that the line should not cross the front side of the subject lands. The said letter dated 29.9.2009 contains an attachment, which provides the sketch for the proposed 230 KV line. The sketch contains three possible alignments for 230 KV line, namely I proposal, II proposal and III proposal. The I and II proposal contemplate substantial intrusion into the subject lands and also the towers being placed on the subject lands. However the III proposal which was finalised after the meeting held on 9.9.2009, passes in front of the subject lands without any tower being contemplated on the subject lands. One tower comes on the adjacent land and the other two towers come on the Government land. The proposal agreed with the second respondent provides for purchase of the land and the consideration shall be paid by the company. (h) The respondents, after detailed discussion, agreed to shift the tower outside the petitioner's property, provided the company agreed to pay the cost of the lands to the owner concerned and the owner concerned also agreed to hand over the lands and the petitioner had agreed to the above proposal. The same was communicated by the second respondent by their letter dated 29.09.2009. The company also expressed its acceptance of the above proposal, subject to negotiations with the land owners concerned. (i) The management of the company underwent a change and the petitioner became the Managing Director and has been administering the company. While so, suddenly on 15.10.2011, the employees of the respondents visited the site of the petitioner-Company and started making the marks and the said act revealed that they had gone back on their commitment and reverted back to the first proposal with regard to laying the transmission line, whereby substantial portion of the lands of the company would be rendered useless and no one would be able to put the same to any use. This would affect the earning power of the company and would also have an impact on the economic growth. In the above situation, the first respondent has issued the impugned notice on 15.10.2011 purportedly under the provisions of the Indian Telegraph Act, 1885 and the Electricity (Supply) Act, 1948, even though the Electricity (Supply) Act, 1948 has been repealed by Act 2003. (j) Therefore, having no other effective and efficacious remedy, the company has filed this Writ Petition assailing the impugned notice on the ground that the same is issued without any legal power, as the Electricity (Supply) Act 1948 has been repealed and the power exercised by the first respondent is not available and, therefore, the impugned notice, which is issued contrary to the decision taken in 2009 and communicated by the letter of the second respondent, dated 29.09.2009, is illegal, bristled with arbitrariness and liable to be quashed.

4. Learned counsel for the petitioner would strenuously contend as follows:

The impugned notice is contrary to the established procedures and rules, as the same is issued without hearing the land owners concerned, whose lands are sought to be acquired for a public purpose, particularly, for erection of high tension transmission towers; the first respondent cannot invoke the power under the provisions of the Electricity (Supply) Act,1948, as the said Act has been repealed by the Electricity Act,2003; before passing the the impugned notice, the first respondent has not taken into account the comparative hardship and the economic fall out of the same and that even the powers of the telegraph authority in the matter of placing electric lines should be exercised only in accordance with the provisions of the Indian Telegraph Act. In support of his contentions, the learned counsel relied upon the following decisions of this Court: (i) T.Narayanan V. Dist. Executive Magistrate-cum-District Collector, 2008 (4) MLJ 1024 :

"The Court under Article 226 of the Constitution of India is not an expert body to go into the feasibility or non-feasibility of the transmission lines to be erected and the factual matrix controverted to by the parties in making alignment of route of transmission lines and also to consider the alternate alignment in the light of the objections of the land owner. The Court is duty bound only to examine the manner in which the enquiry was conducted and the procedure adopted by the authorities and also whether the decision taken by the District Collector is in accordance with law." "Public interest is always superior to the interest of an individual and when the Corporation exercises powers under Section 164 of the Electricity Act, 2003 read with Section 10 of the Indian Telegraph Act, they are not acquiring the land, but they are only making use of the land for the purpose of laying electric lines. Such exercise of powers, if it is in accordance with law, is not to be interfered with. However, compensation can be awarded to the land owner for the damages caused."

(ii) R.Kannan V. Power Grid Corporation (India) Ltd., 2008 (4) MLJ 892, which is confirmed by a Division Bench of this Court in Writ Appeal No.464 of 2008, dated 10.4.2008 :

"It is well settled in Daulat Singh Surana Vs. First Land Acquisition Collector (2007 (1) SCC 641), that public interest always superior to the interest of an individual. When the Corporation exercises powers under Section 164 of the Indian Electricity Act read with Section 10 of the Indian Telegraph Act, they are not acquiring the land, but they are only making use of it. Moreover, the project is a time bound one, which has already been decided by now, and any further delay in completing the project or alteration in route alignment would cause heavy loss to the Government exchequer."

"By virtue of Section 164 of the Electricity Act, 2003, the Appropriate Government for placing of electric lines or electrical plant for the transmission of electricity or for the purpose of telephonic or telegraphic communications necessary for proper co-ordination of work confer upon any public officer etc. subject to such conditions as the Appropriate Government may specify, any powers which the telegraph authority possesses under that Act with respect to placing of telegraph lines and posts."

5. Conversely, learned Government Pleader (Pondicherry), appearing for the first respondent, on instructions, would submit that the proposals and suggestions made by the second respondent in their letter dated 29.09.2009, have not been acted upon by the petitioner, and therefore, there is no other option left for the first respondent except to proceed with the erection of the transmission lines by entering into the subject lands. He would further submit that though the power conferred under the Electricity (Supply) Act,1948, is not available, the first respondent is empowered to invoke the provisions of Indian Telegraph Act,1885, and, therefore, there is no legal infirmity in the impugned notice issued by the respondent.

6. Learned counsel for the second respondent, on instructions, would submit that if the land owners have any objections to the acquisition process for erection of transmission lines, it is always open for them to make such objections to the respondents and, if such objections are filed, the power conferred under the provisions of the Indian Telegraph Act has to be exercised by the District Magistrate after hearing the parties concerned and conducting a due enquiry as per the provisions of the Indian Telegraph Act. He would further add that the negotiations and proposals made before the first respondent are not binding on the second respondent and as the erection of towers is for a public purpose, it cannot be prevented by the land owners and, instead, they can claim compensation for that purpose. He relied upon the following authorities :

(i) Bharat Plywood and Timber Products Private Ltd. V. Kerala State Electricity Board Trivandrum and others, AIR 1972 Kerala 47 :

"23. It is clear from the wording of Section 16 and particularly from the expression "the District Magistrate may, in his discretion", that an order will not be forthcoming automatically. A District Magistrate may in his discretion in a given case refuse or decline to pass an order that the telegraph authority shall be permitted to exercise the powers. The wording is significant. The District Magistrate does not grant permission to the authority. But, he orders that the authority "shall be permitted." The discretion conferred by the section on the District Magistrate is certainly a judicial discretion, and, in cases where the District Magistrate refuses to pass an order that the telegraph authority shall be permitted to exercise the powers mentioned in Section 10, it is inconceivable that the telegraph authority may, notwithstanding such refusal, continue to exercise such powers. The wording of the section is thus itself indicative of the fact that in cases of resistance or obstruction the District Magistrate will have to decide whether the authority should be permitted or not to exercise the powers under Section 16 of the Telegraph Act. This necessarily means that the telegraph authority cannot override or ignore the resistance or obstruction and continue to exercise the powers under Section 10 notwithstanding such resistance or obstruction. It follows that, when an owner or occupier resists or obstructs the exercise of the power under Section 10, the telegraph authority will have to approach the District Magistrate for an order under sub-section (1) of an order under sub-section (1) of S.16 and can exercise the power under Section 10 only in cases where the District Magistrate deems it fit to pass an order that he shall be permitted to do so. The power conferred by Section 10 is thus a conditional power; conditional on an order being passed under Section 16(1) by the District Magistrate that the authority may be permitted, in case of resistance or obstruction, to exercise the power. This is so not only in regard to a telegraph authority but to the public officer or any other person authorised under the Electricity Act."

(ii) M.Nithyanandam and two others V. The Chairman, Tamil Nadu Electricity Board, Madras-2 and others, 1994 Writ LR 445 (Madras High Court) :

" 26. The above section, in my opinion, gives authority for placing the poles or the towers in a private land and clause (d) referred to above provides for payment of compensation. S.16(1) provides for the Board approaching the District Magistrate in case of resistance by the owner. S.16(3) provides for the mode for fixing the compensation in case of dispute regarding the sufficiency of the compensation.

27. In the light of the non-obstante clause in S.42, excluding in categoric terms the applicability of Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910, in any considered opinion, it is not open to the petitioners to rely on S.12 of the Indian Electricity Act, 1910. As stated above, the petitioners strongly relied on the decision reported in 1959 (II) MLJ 446. In that case, Basheer Ahmed Sayeed, J., was pleased to deal only with the scope of S.12. The scope of S.42 was apparently not brought to the notice of the learned Judge. Therefore, the petitioners herein cannot call in aid the said decision.

28. It was argued by Mr.A.Venkatesan, learned counsel for the petitioners, that the learned Judge had observed in the above decision that only apparatus and appliances to be placed and high tension wire cannot at all be used or put up. The petitioners cannot rely upon the observations made by the learned Judge. Provisions of S.42 are very clear and at the end of the 20th century, it is no longer open to anybody to contend the high tension towers cannot be put up."

7. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties.

8. Concedingly, the petitioner is a private limited company. It purchased the subject lands in Field R.S.Nos.43, 13/1, 13/3A, 13/3B, 15/1, 15/2, 16/2, 16/3, 16/4A, 16/4B, 17/1A, 17/3A, 17/3B, 17/3C, 17/3D, 17/3E, 17/3F and 17/4, Thondamanatham Village in Villayanur Communem, of an extent of 95,000 Square metres in all and is holding the possession of the lands. After purchase of the subject lands, the company sought to convert the same into industrial use for the purpose of setting up of a factory, for which, it approached the planning authority and the said authority has also given no objection on 22.01.2009. In the meanwhile, as the respondents attempted to visit the subject lands and started making marks for erecting the power transmission line of 230 KV line, immediately, the petitioner went before the authorities of the first respondent, and they have discussed certain aspects in the meeting held on 9.9.2009, in which it was agreed that the line I would be put outside the land and the required tower being erected behind parcel 13/3A and with regard to line 2, Power Grid would survey on September 12th the adjacent lands in the presence of the company and its consultants, in order to seek the best solution for both the Department and the company. Thereafter, certain proposals were made by the respondents and there were three possible alignments for 230 KV line, namely I proposal, II proposal and III proposal, and while I and II proposals contemplate substantial intrusion into the subject lands and also the tower being placed on the subject lands, the III proposal which was finalised after the meeting held on 09.09.2009, passes in front of the subject lands without any tower being erected on the subject lands. One tower comes on the adjacent land and the other two towers come on the Government land. The proposal was initially agreed with a condition that the company shall purchase the lands for a valuable consideration. However, it is seen from the pleadings as well as the submissions made by the learned counsel appearing for the parties and the documents annexed in the typed set of papers, that the proposal of the respondents and the acceptance of the company could not be materialised due to certain reasons. Therefore, having no other option, the first respondent had to proceed further by issuing the impugned notice.

9. The impugned notice, issued in exercise of the powers vested with Pondicherry Electricity Department/EHV under Sections 10 to 19 of the Indian Telegraph Act, 1885 read with Section 42 of the Electricity (Supply) Act, 1948, is assailed mainly on two grounds, namely, that the Electricity (Supply) Act, 1948 has been repealed and Section 164 of the Electricity Act,2003 has come into force from June 2003, and therefore, as on date, the power exercised by the first respondent by invoking the provisions of the Electricity (Supply) Act, 1948, is totally illegal, unwarranted and without authority. Secondly, when there was a proposal in certain terms for erection of the tower, and when that proposal was not materialised, further course of action should be in accordance with the provisions of the Indian Telegraph Act and, therefore, the impugned notice, issued without hearing the objections as provided under Section 16 of the Indian Telegraph Act, suffers from legal infirmity and cannot be sustained.

10. To examine the above points, as far as the first point whether the impugned notice suffers for want of power as the authority proceeded to issue notice under the provisions of Electricity (Supply) Act, 1948, is concerned, it is to be stated that the Indian Electricity Act, 1910 and the Electricity (Supply) Act, 1948, are repealed by the Electricity Act,2003, and, therefore, no power is vested with the authority to invoke the provisions of Electricity (Supply) Act, 1948, and, if at all it wanted to invoke the power, the same could be done only in accordance with the provisions of the Electricity Act, 2003, and when the power exercised by the authorities is not available with them, invoking of such power under the repealed Act and proceeding to erect the towers is ex facie illegal and, therefore, the impugned notice suffers from legal infirmity and is liable to be quashed.

11. It is now worthwhile to notice the law laid down by the Supreme Court reported in 1997 (1) SCC 650 (Gajraj Singh Vs. State Transport Appellate Tribunal) dealing with the effect of repealing of an Act, as follows :

"22. Whenever an Act is repealed it must be considered, except as to transactions past and closed, as if it had never existed. The effect thereof is to obliterate the Act completely from the record of Parliament as if it had never been passed; it never existed except for the purpose of those actions which were commenced, prosecuted and concluded while it was an existing law. Legal fiction is one which is not an actual reality and which the law recognises and the court accepts as a reality. Therefore, in case of legal fiction the court believes something to exist which in reality does not exist. It is nothing but a presumption of the existence of the state of affairs which in actuality is non-existent. The effect of such a legal fiction is that a position which otherwise would not obtain is deemed to obtain under the circumstances. Therefore, when Section 217(1) of the Act repealed Act 4 of 1939 w.e.f. 1-7-1989, the law in Act 4 of 1939 in effect came to be non-existent except as regards the transactions, past and closed or saved.

23. In Crawford's Interpretation of Law (1989) at p. 626, it is stated that:

[A]n express repeal will operate to abrogate an existing law, unless there is some indication to the contrary, such as a saving clause. Even existing rights and pending litigation, both civil and criminal, may be affected although it is not an uncommon practice to use the saving clause in order to preserve existing rights and to exempt pending litigation. At p. 627, it is stated that:

[M]oreover, where a repealing clause expressly refers to a portion of a prior Act, the remainder of such Act will not usually be repealed, as a presumption is raised that no further repeal is necessary, unless there is irreconcilable inconsistency between them. In like manner, if the repealing clause is by its terms confined to a particular Act, quoted by title, it will not be extended to an act upon a different subject. Section 6 of the GC Act enumerates, inter alia, that where the Act repeals any enactment, unless a different intention appears, the repeal shall not (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced. In India Tobacco Co. Ltd. v. CTO (1975 (3) SCC 512 = 1975 SCC (Tax) 49) (SCC at p. 517) in paras 6 and 11, a Bench of three Judges had held that repeal connotes abrogation and obliteration of one statute by another from the statute-book as completely as if it had never been passed. When an Act is repealed, it must be considered, except as to transactions past and closed, as if it had never existed. Repeal is not a matter of mere form but is of substance, depending on the intention of the legislature. If the intention indicated either expressly or by necessary implication in the subsequent statute was to abrogate or wipe off the former enactment wholly or in part, then it would be a case of total or pro tanto repeal.

24. When there is a repeal and simultaneous re-enactment, Section 6 of the GC Act would apply to such a case unless contrary intention can be gathered from the repealing Act. Section 6 would be applicable in such cases unless the new legislation manifests intention inconsistent with or contrary to the application of the section. Such incompatibility would have to be ascertained from all relevant provisions of the new Act. Therefore, when the repeal is followed by a fresh legislation on the same subject, the Court would undoubtedly have to look to the provisions of the new Act only for the purpose of determining whether the new Act indicates different intention. The object of repeal and re-enactment is to obliterate the Repealed Act and to get rid of certain obsolete matters."

12. When an old Act is repealed and, in its place, a new Act enacted and when such new Act contemplates the provisions to invoke and exercise the power by the authority concerned and to proceed with the matter in a particular manner, it is not for the authority to invoke the repealed Act, but the authority can very well invoke the provisions of the new enactment and issue relevant order or notice, which is, admittedly, not done in this case.

13. The next question that arises for consideration is, whether the respondents are correct in issuing the impugned notice in exercise of the powers vested with the Pondicherry Electricity Department/EHV under the provisions of the Indian Telegraph Act. The impugned notice, in exercise of the powers vested with Pondicherry Electricity Department/EHV under Sections 10 to 19 of the Indian Telegraph Act, 1885 read with Section 42 of the Electricity (Supply) Act, 1948, as amended up to date, is issued to the effect that 230 KV D/C Electric Transmission Line from Ramanathapuram to Thondamanatham Line I will go through the petitioner's property noted therein and while due care will be taken to minimise the damage to standing trees and crops, certain minimum unavoidable damage is likely to take place during construction/erection of the aforesaid line. The trees so felled will be handed over to the petitioner. The compensation for the yield component of the trees so felled and the crops damaged will be paid to the petitioner as assessed by the Revenue Department or any other competent authority as may be decided/directed by the Revenue Department. The impugned notice is in conformity with the provisions of the Indian Telegraph Act.

14. Section 16 of the Indian Telegraph Act deals with the exercise of powers conferred by Section 10, and disputes as to compensation in case of property other than that of a local authority. Section 16(1) of the Indian Telegraph Act provides that 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. Section 10 of the Indian Telegraph Act deals with the power for telegraph authority to place and maintain telegraph lines and posts, and it contemplates that 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 post; and (c) except as hereinafter provided, the telegraph authority shall not exercise those powers in respect of any property vested in or under the control or management of any local authority, without the permission of that authority; and (d) in the exercise of the powers conferred by this Section, the telegraph authority shall do as little damage as possible, and when it has exercised those powers in respect of any property other than that referred to in clause (c), shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers.

15. A comprehensive reading of the above provisions makes it crystal clear that while exercising the power under Section 16(1) of the Indian Telegraph Act, the competent authority should exercise the powers mentioned in Section 10 of the said Act in respect of the property referred to in clause (d) of that section and if it is resisted or obstructed, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them, and therefore, the authority competent to look into the resistance or any obstruction by the land owners, is the District Magistrate concerned, for which, this Court time and again has taken a categorical view that unless the District Magistrate decides about the resistance or obstruction by the land owners, no proceedings shall be initiated by the concerned authority dealing with the erection of towers.

16. In the instant case, though the general provisions are invoked under Sections 10 to 19 of the Indian Telegraph Act, when certain procedures are specifically contemplated under that Act which are to be followed for considering the resistance or obstruction or any valid objections of the land owners, the same have to be adhered to, in the manner as provided therein, which are also conspicuously not followed.

17. In the given situation and looking into the manner in which the impugned notice is issued contrary to the provisions of the Indian Telegraph Act, I am of the considered opinion that the impugned notice cannot be sustained and is liable to be set aside. However, as the erection of transmission lines is for a public purpose and that purpose is to be exercised in the manner known to law, the authority competent is duty bound to refer the matter to the District Magistrate concerned, for consideration. Accordingly, the notice impugned is set aside. The petitioner is directed to file his objections to the first respondent afresh within a period of two weeks from the date of receipt of a copy of this order and, if such objections are received by the first respondent, the same shall be referred to the District Magistrate concerned within a period of two weeks thereafter, who, in turn, shall cause notice to the parties concerned, hear them, conduct an appropriate enquiry and pass orders on merits and in accordance with law, particularly considering Section 16 of the Indian Telegraph Act, within a period of four weeks thereafter. In the meanwhile, the parties to the present Writ Petition are directed to maintain status quo as on today, in respect of the subject lands alone.

18. Writ Petition is allowed with the above directions and observations. No costs. Consequently, the connected Miscellaneous Petition is closed.

cs/dixit

Registry to note:

Let a copy of this order be communicated to

the District Magistrate/District Collector,

Saram Revenue Complex, Puducherry.

To

1. Pondicherry Electricity Department,

represented by the Supervisor,

137, Nethaji Subhash Chandra Bose Salai,

Puduchery-1.

2. M/s.Power Grid Corporation of India,

by its Chief Manager,

400/230 K.V. Sub Station,

Ramanathapuram Village,

Thondamanatham Main Road,

Pondicherry-605 502.

3. The District Magistrate/District Collector,

Saram Revenue Complex,

Puducherry