Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9063 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 6243 OF 2019)
CENTURY RAYON LIMITED ….. APPELLANT(S)
VERSUS
IVP LIMITED AND OTHERS ….. RESPONDENT(S)
J U D G M E N T
SANJIV KHANNA, J.
Leave granted.
2. The first respondent – IVP Limited is a company and owner of the
non-agricultural land at village Vadavali bearing S. No. 43/32
admeasuring about 20 R Pot Kharaba 1 R and at village Mohane
bearing S. No. 42/12 admeasuring about 22R 30P and S. No. 44/2
admeasuring about 50 R Pot Kharaba 3R. The first respondent
has filed a suit for permanent injunction with a grievance that the
Maharashtra State Electricity Distribution Company Limited
(‘MSEDC’ for short), the second respondent before us, had
Signature Not Verified
Digitally signed by
SANJAY KUMAR
Date: 2019.11.27
16:18:32 IST
Reason:
appointed contractors who were excavating its land for
Civil Appeal arising out of SLP (C) No. 6243 of 2019 Page 1 of 11
construction of the electricity transmission towers without any prior
approval.
3. The appellant – Century Rayon Limited, who is also a defendant
in the suit, is a company engaged in the business of manufacture
and sale of chemicals and has its plant at village Mohane, Taluka
Kalyan, District Thane. The aforesaid electricity transmission
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towers are being constructed on the application dated 2 May
2016 made by the appellant to the MSEDC for Line In Line Out
(LILO) on 100 KV MohaneꟷAmbernath DC TL. Thereupon, the
sanction was granted by the Maharashtra State Electricity
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Transmission Co. Ltd (‘MSETCL’ for short) vide letter 24 May
2017 subject to various terms and conditions including that the
right to way problem for laying of line is to be sorted out by the
appellant at its cost.
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4. The present appeal impugns the judgment and order dated 9
January 2019 passed by the High Court of Bombay, which
dismisses Writ Petition (Stamp) No. 19175 of 2018, and thereby
affirms the order passed by the trial court and the first appellate
court restraining the appellant and the second respondent by way
of temporary injunction from “making holes for erecting poles on
any part of the suit lands without following due process of law”.
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5. A number of issues and contentions have been raised before us
but we are not inclined to enter into a detailed discussion, for we
are dealing with an interim injunction order and are inclined to
grant relief to the appellant subject to certain conditions, leaving
the main issues to be decided and adjudicated in the civil suit and
under the provisions of the Indian Telegraph Act, 1885 (‘Telegraph
Act’ for short) read with the Electricity Act, 2003 (‘Electricity Act’ for
short).
6. There were certain lapses on the part of the MSETCL/MSEDC
and the appellant, as has been noticed in the impugned order, on
account of the failure to take necessary permission from the
District Magistrate when there was obstruction and objection to
the work of erecting the electricity transmission towers on the first
respondent’s land. However, it is an accepted and admitted
position that pursuant to the interim order passed by the first
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appellate court on 25 April 2018, the appellant had initiated
appropriate proceedings through licensing authority before the
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District Magistrate, Thane and thereupon vide order dated 28
August 2018 necessary permission for erection of the towers and
setting up transmission line has been granted subject to payment
of compensation to the first respondent in terms of Section 16(1)
to Section 16(4) read with Section 10 of the Telegraph Act. It is
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correct that the interim order dated 25 April 2018 was set aside
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by the Bombay High Court vide order dated 17 May 2018, albeit
it is an accepted position that as a matter of fact the electricity
transmission towers on the land of the first respondent have
already been constructed. Therefore, and in a way, the MSEDC is
already using the land of the first respondent. The appellant has
highlighted and the MSEDC affirms that 80% of the work of laying
the transmission line is already over and but for the injunction
order under challenge the transmission line would have been
activated and operationalised. Clearly, therefore, the balance of
convenience does not justify passing of an interim injunction order
in favour of the first respondent. It is also accepted that the District
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Magistrate, Thane vide order dated 28 August 2018 has granted
the necessary permission for erection of the towers and setting up
of the transmission line on the land of the first respondent. The
relevant portion of this order, which has not been set aside, reads
as under:
“[…] Therefore, the line plan finalised is the most
proper plan. Therefore, in respect of losses to be
caused, proper compensation as may be fixed by the
Hon’ble District Magistrate will be paid to the
concerned.
That means, overall by considering all options
suggested by concerned, technically most proper line
is found to have been included by MSETCL with their
aforesaid letter dt. 30/07/2018. Further as per proviso
in Section 10(d) of Indian Telegraph Act, while
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exercising the said power action will be taken to pay
full compensation 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 for setting
up of the electricity transmission line, we would refer to the
judgment of this Court in Power Grid Corporation of India
1
Limited v. Century Textiles and Industries Limited and Others
wherein a Division Bench of this Court while examining Section
164 of the Electricity Act had observed that the appropriate
Government may by order in writing for the purpose of placing of
electric lines or electrical plant for the transmission of electricity
necessary for the proper coordination of works, confer on any
public officer, licensee or any other person engaged in the
business of supplying electricity under the Electricity Act any of the
powers that the telegraph authority possesses under the
Telegraph Act with respect to the placing of the posts and lines for
the purposes of a telegraph. This conferment of powers would be
subject to such conditions and restrictions, if any, that the
appropriate Government may impose and the provisions of the
1
(2017) 5 SCC 143
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2 3
Telegraph Act. Reference was made to Sections 10 and 16 of the
Telegraph Act which postulates the power of the telegraph
authority to maintain telegraph lines and posts and the provisions
relating to compensation in exercise of those powers. Clause (d)
to Section 10 requires that the telegraph authority shall do as
limited damage as possible in exercise of powers to place and
maintain telegraph lines and posts, and full compensation shall be
2
Section 10. Power for telegraph authority to place and maintain telegraph lines and posts.ꟷ
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.
3
Section 16. Exercise of powers conferred by section 10, and disputes as to compensation,
in case of property other than that of a local authority.ꟷ
(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 this 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.
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paid to all persons interested for any damage sustained by them.
Sub-section (1) to Section 16 states that in case of resistance or
obstruction in respect of powers exercised by the telegraph
authority under clause (d) to Section 10, the District Magistrate
may in his discretion make an order that the telegraph authority
shall be permitted to exercise the powers. Sub-section (3) to
Section 16 states that if any dispute arises with regard to the
sufficiency of the compensation to be paid under clause (d) to
Section 10, the District Judge within whose jurisdiction the
property is situated shall determine the compensation. On the
legal effect of these provisions, this Court had observed:
“21. It is not in dispute that in exercise of powers under
the aforesaid provision, the appropriate Government
has conferred the powers of telegraph authority vide
Notification dated 24-12-2003 exercisable under the
Telegraph Act, 1885 upon the Power Grid. It may also
be mentioned that a Central transmission utility (CTU)
is a deemed licensee under the second proviso to
Section 14 of the Electricity Act, 2003. Power Grid is a
Central transmission utility and is, therefore, a deemed
licensee under the Electricity Act, 2003. This coupled
with the fact that Power Grid is treated as authority
under the Telegraph Act, 1885, it acquires all such
powers which are vested in a telegraph authority under
the provisions of the Telegraph Act, 1885 including
power to eliminate any obstruction in the laying down
of power transmission lines. As per the provisions of
the Telegraph Act, 1885, unobstructed access to lay
down telegraph and/or electricity transmission lines is
an imperative in the larger public interest. Electrification
of villages all over the country and availability of
telegraph lines are the most essential requirements for
growth and development of any country, economy and
the well-being/progress of the citizens. The legislature
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has not permitted any kind of impediment/obstruction in
achieving this objective and through the scheme of the
Telegraph Act, 1885 empowering the licensee to lay
telegraph lines, applied the same, as it is, for laying
down the electricity transmission lines.
xx xx xx
23. Section 10 of the Telegraph Act, 1885 empowers
the telegraph authority to place and maintain a
telegraph line under, over, along or across and posts in
or upon any immovable property. The provision of
Section 10( b ) of the Telegraph Act, 1885 makes it
abundantly clear that while acquiring the power to lay
down telegraph lines, the Central Government does not
acquire any right other than that of user in the property.
Further, 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.
xx xx xx
26. We also do not find that the action of the Power
Grid, in the given circumstances, by not shifting the
transmission lines was arbitrary. From the facts noted
above, it becomes apparent that not only it was
unfeasible to change the alignment as almost entire
work had already been completed by the time the writ
petitioner started protesting against this move, even
otherwise, the Power Grid has given sufficient
explanation to point out that all relevant factors/aspects
were kept in mind while laying down the impugned
transmission lines. Such transmission lines had to be in
straight line to the extent possible for eliminating loss of
transmission. It is also explained that electricity
transmission is usually laid or crossed over agricultural
land where minimum extent of land gets utilised for
erecting towers and where agricultural activities are not
prejudiced/obstructed in any manner. The purpose is to
avoid buildings, religious places, ponds, etc. while
laying down these transmission lines. It is only when it
becomes inevitable that towers are placed on the
private lands to the minimum and least extent possible.
That is what was tried to achieve in the instant case.
Another important factor, which needs repetition at this
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stage is that no blasting is permissible within 300 m
from the 400 kV line (already existing) or the tower
structure. Mining of limestone can be taken up by
adopting the methods other than use of
explosive/blasting — without damage to the tower
foundation/tower structure or the line, which can be
accomplished by using jack hammer/pneumatic
hammer with compressor so as to avoid any damage
to the line or tower. This aspect has also been taken
note of by the learned Single Judge of the High Court
in the judgment dated 11-3-2008. The Division Bench
did not differ with any of these findings.”
The decision highlights the imperative and the need for
unobstructed access for laying down the electricity transmission
lines in the larger public interest as these are essential
requirements for growth and development of the country, economy
and well-being of the citizens.
8. Counsel for the first respondent had submitted that the ratio of the
aforesaid decision is not applicable as the electricity transmission
line in the present case is for the benefit of the appellant and not
for the public at large. This is factually disputed by the appellant.
The MSETCL in its affidavit has stated that the installation of
transmission lines for the generation of High Voltage Electricity is
a policy decision of the Government and for the public benefit at
large. The service line even if is in the nature of “Dedicated
Distribution Facilities” has no exclusivity and the MSETCL would
be entitled to tap the said service line for providing electricity to
other consumers. This factual aspect would be a subject matter of
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the trial. It would not be appropriate at this stage to disregard the
statement made by the MSETCL to stall the setting up and
activation of the electricity transmission lines.
9. During the course of hearing, attempts were made by the parties,
that is, the appellant and the first respondent, to settle the matter
albeit the talks had failed as the first respondent wanted the
appellant to purchase a substantial portion of the land owned by it.
The appellant expressed its inability to purchase a substantial
portion of the land as demanded by the first respondent. It was
stated by the appellant that it does not require ownership of such
a large area of land. We would not like to comment on the
aforesaid stands of both sides and have noted the same only to
observe that the dispute does have a commercial aspect, that is
monetary compensation which we will not like to adjudicate and
would leave this issue open, given the order of the District
Magistrate, Thane and as the present appeal is directed against
an interim order. Continuation of injunction is not warranted and
justified in law.
10. We are, therefore, inclined to set aside the impugned order as
also the injunction order subject to the appellant making an ad
hoc payment of Rs. 20,00,000/- (rupees twenty lakhs only) in
addition to the payments already made. On the said payment
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being made to the first respondent, the MSEDC and their
contractors would be entitled to continue and complete the work of
erection of the electricity transmission towers on the land of the
first respondent. The payment made would be subject to the
outcome of the civil suit or the proceedings under the Telegraph
Act for quantifying the compensation payable to the first
respondent.
11. The appeal is allowed in the aforesaid terms without any order as
to costs. All pending applications stand disposed of.
......................................J.
(N.V. RAMANA)
......................................J.
(SANJIV KHANNA)
......................................J.
(KRISHNA MURARI)
NEW DELHI;
NOVEMBER 27, 2019.
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