N M GIRI Vs. AMR POWER PVT LTD

JUDGEMENT

(1.) BOTH these writ petitions are disposed of by this common order, inasmuch as, common question of law arises for consideration.

(2.) IN both these writ petitions the petitioners are essentially questioning the notification issued by the State under Section 164 of the electricity Act, 2003 (for short 'the Act' ).

(3.) THE facts germane for the disposal of these writ petitions are as follows : in both these writ petitions the petitioners are the owners of several properties situate in narikombu village, Bantwal Taluk, Dakshina kannada Dist. It is their case that the properties in question are adjacent to the main road. The petitioners are cultivating rubber plant, arecanut and banana plants. They are entirely dependent on the income derived from the said lands. The first respondent in W. P. 13019/08 and the second respondent in W. P. 15635-36. 08 is a private company engaged in generation of electricity and electricity transmission (for short "amr" ). The AMR filed an application under Sections 10, 16 and 17 of the Indian Telegraph Act (for short 'the Telegraph Act') seeking removal of obstructions and to permit it to erect transmission towers on the lands belonging to the petitioners: A copy of the application is made available in one of the writ petitions. The petitioners here in filed objections opposing the said application. A memo was also filed stating that the AMR can erect transmission towers by the side of the road and it is not necessary for them to acquire the land belonging to the petitioners. The said objections were overruled and the matter was referred to the District Magistrate. The District Magistrate having regard to the scope of the dispute as well as necessity of amr in erecting towers in the lands granted the application of AMR and directed removal of the obstructions. The said order passed by the District Magistrate is questioned in both these writ petitions. The case of the petitioners is that the AMR is not an instrumentality of the State and hence it cannot invoke the provisions of the Indian telegraph Act, inasmuch as, it is only the instrumentality of the State which can invoke the provisions and seek removal of any obstruction under the Telegraph Act. The writ petition is entertained and during the pendency of the writ petition this Court directed the District Magistrate, Dakshina Kannada District to make spot inspection in respect of the land wherein the towers are to be erected and also to file a report whether the towers could be erected elsewhere or in the adjoining land. Indeed this order was passed on 22-1-2009 directing the authorities to consider the request of the petitioners with the assistance of the. technical experts. Thereafter a report is filed by the State in this Court indicating possibility of erecting transmission towers other than the land belonging to the petitioners is not feasible. Mr. G. V. Shantharaju, learned senior counsel appearing for the petitioners submits that the notification is issued under Section 164 of the Act. The very reading of the notification would indicate that erection of towers and recourse to Indian Telegraph Act can be had only where the company is owned by the state. He would pointedly refer to the phrase "made use of, used in the notification. He would submit that the Karnataka Power Transmission corporation Limited (for short "kptcl") is engaged in the business of generation, transmission and distribution of electricity which would necessarily mean that if. the company proposes to erect tower or draw line should be a company owned by the State he further submits that the opinion of the legal department terming AMR as instrumentality of the State is virtually re-writing the notification issued under Section 164 of the act. Hence he submits that it is not open for amr to erect towers and draw the lines having recourse to Telegraph Act since it is not an instrumentality of the State.