MANUEL Vs. EXECUTIVE ENGINEER

JUDGEMENT

(1.) THIS petition seeks to quash the order Ext. P5 passed by the 2nd responden', the District Collector and District Magistrate, kottayam, acting on a petition, Ext. P2, moved by the 1st respondent, the executive Engineer, T C Division, Kerala State Electricity Board, moovattupuzha, under S. 16 (1) of the Indian Telegraph Act, 1885, hereinafter referred to as the "telegraph Act", for an order that he may be permitted to place electric supply-lines on the petitioner's property. By Ext. P5 order the 2nd respondent permitted the placing of supply-lines on the petitioner's property. The petitioner bad objected to Ext. P2 petition under s. 16 (1) of the Telegraph Act; indeed he had objected to the placing of the supply-lines on his property by Ext P1 as soon as he came to know that an electric supply-line was to be taken over his property. The proposal was to take a 220 KV electric power line over and across the property of the petitioner. The case of the petitioner was that the taking of such a line would have the practical effect of destroying his property in that the placing of the supply lines would diminish the utility of the property and reduce its value to such an extent as to make the property practically worthless. In the objection to Ext. P2 petition two main contentions were raised by the petitioner; (1)that the 1st respondent had no locus standi to move the petition "for and on behalf of the Kerala State Electricity Board" and (2) that the only power, if any, conferred on the 1st respondent was that of a telegraph authority and that such conferment of power would not enable the 1st respondent to seek to erect such gigantic structures as pylons for placing high tension electric lines carrying not less than 2,20,000 volt alternating current. It was also the case of the petitioner that by S. 10 of the Telegraph Act, no such right or power has been conferred on the Board. These contentions were negatived by the 2nd respondent by bis order Ext. P5.

(2.) THE main grounds raised in this petition are that the proceedings of the 2nd respondent are unauthorised, illegal and without jurisdiction and violative of Arts 19 (1) (f) and 31 (1) of the Constitution; that the 1st respon-dent was incompetent in law to sue or act in his own name in any civil proceedings for the Kerala State Electricity Board; that government have no power under S. 51 of the Indian Electricity Act, 1910, for short, the Electricity Act, to confer any power on any person other than a public officer and that the conferment of power on the 1st respondent who h not a public officer is ultra vires and void; that the 2nd respondent had no jurisdiction or power to grant permission under S 16 (1) of the Telegraph Act to cause any substantial damage, much less destruction of any valuable tree or other property in exercise of the powers conferred by S. 10 of the Telegraph Act on the telegraph authority; and that the contention of 1st the respondent that the alignment proposed for placing of the supply-lines could not be deviated from was unsustainable and mala fide.

(3.) S. 51 of the Electricity Act has empowered the State government to confer upon any public officer, licensee or any other person engaged in the business of supplying energy to the public, for the purpose of placing of electric supply-lines, appliances and apparatus for the transmission of electric energy, any of the powers which the telegraph authority possesses under that Act with respect to the placing of telegraph lines and posts for the purpose of a telegraph established or maintained by the Government. Counsel for the petitioner contended that the Executive Engineer, the 1st respondent is neither a "public officer" nor a "licenses" and further contended that he is not even "any other person engaged in the business of supplying energy to the public". Ext. RI is the order in writing conferring upon the Engineers of the Kerala State Electricity Board of and above the rank of Assistant Engineers all the powers which the telegraph authority possesses under S. 10 to 18 of the Telegraph Act to be exercised for the purpose of placing electric supply-lines, appliances and apparatus. The contention raised is that the 1st respondent is only an employee of the electricity Board, an independent entity which is akin to a Co-operative society and the 1st respondent therefore is not a "public Officer". "public Officer" has not been d fined in the Electricity Act nor is there any definition of that term in the Telegraph Act or in the Supply Act. It will not be proper to apply the definition in any other enactment for the purpose of understanding the import of the expression "public officer" under S. 51 of the Electricity Act So, we do not think that we should proceed on the basis of the definition in S. 2 (xvii) of the Code of Civil procedure. The two decisions, Jhansi Co-operative Oil Mills v. Lala Makhan Lal air. 1937 Allahabad 492 and Narendra Prasad Sinha v. Maharani Janki Kuer AIR. 1947 Patna 385 dealt with the question whether the officers concerned therein, the Liquidator of a Co-operative Society in the former decision and the chairman of a Municipality in the latter decision, were public officers within the meaning of the definition of that term in S. 2 (xvii) of the Civil Procedure code. Those decisions will not be of much help as the decisions turned on the interpretation of the definition of "public officer" in that particular statute. "public Officer" can have different meanings is evident from judicial pronouncements on the subject. In the decision G A. Natesan, In re AIR. 1918 Madras 763 it was held that "where a Statute appoints a body of persons to carry out purposes of public benefit, the persons constituting such a body inso facto become holders of a public office within the meaning of S. 45" of the Specific Relief Act (1877 ). Reliance was placed in that decision on Henley v. Mayor of Lyme (1828) 5 Bing, 91 Best C. J, therein described a Public Officer as "every one who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the Crown or otherwise. "