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Sri Provash Chandra Sett and ors. Vs. Gouripore Electric Supply Co. Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectElectricity
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 2483 of 1956
Judge
Reported inAIR1960Cal311
ActsElectricity Act, 1910 - Section 51; ;Constitution of India - Article 19
AppellantSri Provash Chandra Sett and ors.
RespondentGouripore Electric Supply Co. Ltd. and ors.
Appellant AdvocateLala Hemanta Kumar and ;Sudhir Kumar Dutt, Advs.
Respondent AdvocateC.N. Laik and ;Ajit Kumar, Advs. (for No. 1) and ;N.C. Chakravarty and ;S.K. Roy Choudhury, Advs. (for Nos. 3 and 4)
Cases ReferredProvince of Bombay v. Khushaldas S. Advani
Excerpt:
- .....made by the state of west bengal under section 51 of the indian electricity act.2. the petitioner lily biscuit company (private) limited is the owner of c. s. plots nos. 901 and 902 appertaining to c. s. khatians nos. 304 and 305 of mouza balagarh, police station chinsurah in the sadar subdivision of district hooghly. the petitioners provash chandra sett and bivash chandra sett are directors of lily biscuit company (private) limited. the respondent no. 1 gourepore electric supply company limited is a licensee within the meaning of section 2(h) of the indian electricity act. it was necessary for the supply company to draw 33 k. v. transmission lines from the north calcutta grid sub-station at naihati up to their power station at gorifa, 24-paraganas for receiving bulk supply from the.....
Judgment:
ORDER

R.S. Bachawat, J.

1. In this Rule the petitioners ask for an appropriate Writ quashing an order dated 29th July 1956 made by the State of West Bengal under Section 51 of the Indian Electricity Act.

2. The petitioner Lily Biscuit Company (Private) Limited is the owner of c. s. plots Nos. 901 and 902 appertaining to c. s. khatians Nos. 304 and 305 of mouza Balagarh, Police Station Chinsurah in the Sadar Subdivision of District Hooghly. The petitioners Provash Chandra Sett and Bivash Chandra Sett are directors of Lily Biscuit Company (Private) Limited. The respondent No. 1 Gourepore Electric Supply Company Limited is a licensee within the meaning of Section 2(h) of the Indian Electricity Act. It was necessary for the supply company to draw 33 K. V. transmission lines from the North Calcutta Grid Sub-Station at Naihati up to their power station at Gorifa, 24-Paraganas for receiving bulk supply from the said North Calcutta Sub-Station. The proposed transmission line involved numerous plots including the plots belonging to the petitioner. The supply company applied to the State Government for the issue of a general authority under Section 51 of the Indian Electricity Act, 1910 whereupon It was advised to obtain necessary way leave from the owners of the plots concerned through amicable negotiations and on payment of reasonable compensation, if necessary. The supply company was advised that in the event of unreasonable objection by the owners, the Government should be approached for the issue of the necessary orders under Section 51. It appears that the company obtained the necessary way leave from almost all the owners by amicable negotiations. There were prolonged negotiations between the supply company and the petitioners for the grant of the necessary way leave through plots Nos. 901 and 902. In course of such negotiation the petitioner Lily Biscuit Company (Private) Limited by its letter dated the 23rd September 1955 written to the Supply Company proposed a new alignment of the transmission lines. By its letter dated the 7th October 1955 the Supply Company agreed to the proposed new line of alignment. It appears that meanwhile certain trees on the two plots were cut down by the employees of the Supply Company without the permission of Lily Biscuit Company (Private) Limited or their directors. The Supply Company by its letter dated 4th November 1955 tendered its apologies for the cutting of the trees. The apology, however, was not accepted. Disputes arose between the Supply Company and the Lily Biscuit Company (Private) Limited and the negotiations for the grant of the way leave by amicable negotiation fell through. The petitioners started proceedings under Section 144 of the Criminal Procedure Code. In the meantime, there was some correspondence between the petitioners and the Electric Inspector, West Bengal. By his letter dated the 4th February 1956 the Electric Inspector asked the petitioner Bivash Chandra Sett to state the grounds of the objections of Lily Biscuit Company (Private) Limited to the grant of the way leave and also to state if they would be prepared to give their consent in the matter under any terms and conditions.

3. By its letter dated 11th February 1956 the Lily Biscuit Company (Private) Limited stated that in spite of accepting the proposal for the new alignment the employees of the Supply Company started cutting down trees and that when this was brought to their notice, a letter was sent offering apology. By his letter dated 5th March 1956 the Electric Inspector asked Lily Biscuit Company (Private) Limited to reconsider the matter and stated that the Supply Company was prepared to re-open negotiation if possible and further suggested that a representative of Lily Biscuit Company (Private) Limited might call upon the Electric inspector at his office so that the matter might be discussed.

4. By its letter dated the 17th March 1950 Lily Biscuit Company (Private) Limited stated that they were convinced that the Supply Company wanted to intimidate Lily Biscuit Company (Private) Limited, into submitting to their demands and that they had threatened that if their proposal was not accented, they would have the land requisitioned by the Government and that in the circumstances, Lily Biscuit Company (Private) Limited had no other alternative but to take shelter of the Court for protection of the rights and that a suit had already been filed and that when the matter was in seisin of the Court, it was not thought that any useful purpose would be served by encroaching upon the valuable time of the Electric Inspector.

5. It appears that in the meantime, on or about 25th February 1956 Lily Biscuit Company (Private) Limited instituted a title suit No. 14 of 1956 in the First Court of the Subordinate Judge. Hooghly, asking for damages for the cutting down of trees and for permanent injunction restraining further trespass and mischief. The Lily Biscuit Company (Private) Limited obtained a temporary injunction. Eventually the Supply Company gave an undertaking that they would not enter into the disputed lands or lay transmission lines thereupon until permitted by Government or by the plaintiffs and on the basis of this undertaking the application for injunction was disposed of. Subsequent applications for reconsideration and correction of the order dated 23rd April 1956 were dismissed. The impugned order under Section 51 of the Indian Electricity Act was passed on the 26th June 1956. The appeals from the orders dated 23rd April 1956 and the 30th April 1956 were dismissed by the District Judge, Hooghly on the 21st July 1956. The petitioners caused further proceedings to be instituted under Section 144 of the Code of Criminal Procedure. By letter dated 29th July 1956 the petitioners requested the State Government to withdraw the impugned order stating that the order was passed on ex parte representations and had infringed the fundamental rights of the petitioners.

5a. By the order dated the 26th June 1956 the Governor of the State of West Bengal in exercise of the powers conferred by Section 51 of the Indian Electricity Act, 1910 conferred upon the Supply Company, for the purpose of drawing overhead 33 KV Electric supply line in and over the plots Nos. 901 and 905 for the transmission of energy to the West Bengal State Electricity Board at their power station at Tribeni and to Messrs. Tribeni Tissues Limited and to the factory extension of Messrs. Dunlop Company Limited and for repairing the same whenever necessity arises, the powers which the telegraph authority possess under Sections 10 to 19 of the Indian Telegraph Act with respect to the placing of telegraph lines and posts for the purpose of a telegraph established or maintained by the Government or to be so established or maintained.

6. On behalf of the petitioners it is contended that the power conferred by Section 51 of the Indian Electricity Act on the State Government is a quasi-judicial power and that an order ought not to have been made in the exercise of such power without giving the petitioners an opportunity of being heard. In the alternative it is argued that assuming that the power conferred by Section 51 of the Indian Electricity Act is an administrative power, even then such power ought not to be exercised without giving the petitioners a hearing in the matter. For the purpose of this application it is assumed that Section 1 of the Indian Electricity Act is constitutionally Valid but it is said that Section 51 imposes restrictions On the fundamental rights of the petitioners to hold and enjoy property and that in order to make the restriction reasonable, a provision for the giving of a notice before the making of the order ought to be implied in Section 51.

7. Section 51 of the Indian Electricity Act reads as follows:--

'51. Exercise in certain cases of powers of telegraph-authority -- Notwithstanding anything in Sections 12 to 16 (both inclusive) and Sections 18 and 19, the State Government may, by order in writing, for the placing of appliances and apparatus for the transmission of energy, confer upon any public officer or licensee, subject to such conditions and restrictions (if any) as the State Government may think fit to impose, and to the provisions of the Indian Telegraph Act, 1885 (XIII of 1885), any of the powers which the telegraph-authority possesses under that Act, with respect to the placing of telegraph-lines and posts for the purposes of a telegraph established or maintained by the Government or to be so established or maintained.'

8. Under this section the State Government is empowered by an order in writing to confer upon a licensee within the meaning of the Indian Electricity Act all or any of the powers which a telegraph authority possesses under the Indian Telegraph Act 1885 with respect to the placing of telegraph lines and posts for the purposes of a telegraph established or maintained by the Government. Fairly large powers are conferred for that purpose upon the telegraph authority by Sections 10 to 19 of the Indian Telegraph Act. Such power includes the power to place and maintain a telegraph line under, over, along or across, and posts in or upon, any immovable property, the power to enter on the property under, over, along, across, in or upon which the line or post has been placed for the purpose of examining, repairing, altering or removing any telegraph line or post and the power of removal of trees interrupting telegraphic communication. Such powers are conferred upon the Telegraph Authority by Sections 10 to 19 of the Indian Telegraph Act itself and no order in writing by any Government or Governments is necessary to confer such power upon the telegraph authority. Section 19B gives the Central Government power to confer by notification in the official gazette upon any licensee within the meaning of Section 4 of the Indian Telegraph Act all or any of the powers so possessed by the telegraph authority.

9. It is to be noticed that Section 51 of the Indian Electricity Act does not require the State Government to determine or decide any dispute between, two contending parties. Under Section 51 the State Government, if it so likes, can confer upon the licensee any of the powers which the telegraph authority possesses. Such powers may be conferred in general terms. When the power is conferred in general terms, the power may be exercised in respect of any immovable property for the purpose of placing appliances and apparatus for the transmission of energy. Supposing the State Government was minded to confer upon the licensee such powers in general terms, see. 5l or any other provision of the Indian Electricity Act does not contain any provision whereby the State Government is required to hear any person or persons who may in future be affected by the exercise of such powers. Indeed when such general powers are sought to be conferred, it is not even known which person or persons may in future be affected by the exercise of such powers.

10. In the present case, however, power was conferred upon the Supply Company in restricted terms in respect of plots nos. 901 and 905 belonging to the petitioner Lily Biscuit Company (Private) Ltd. Even then, in my opinion, the State Government while exercising the powers under Section 51 is not called upon to decide a dispute arising out of a claim made by one party and an opposition by the other and to determine the respective rights of the contesting parties. The State Government is not call-ed upon to investigate into and decide disputed questions. The order under Section 51 is based upon considerations of policy and expediency and not upon determination of some disputed questions. The State Government cannot be said to exercise a quasi-judicial power while conferring upon the licencee powers under Section 51 of the Indian Electricity Act, whether general or special. It is true that Section 51 confers upon the State Government power to do an act which will prejudicially affect other citizens. In my opinion, still, the power cannot be said to be a quasi-judicial power. There is no provision in the Indian Electricity Act whereby the State Government is required to exercise the power conferred by Section 51 judicially. The relevant principles for deciding whether a power is quasi-judicial power are well formulated by Das J. in Province of Bombay v. Khushaldas S. Advani, : [1950]1SCR621 . In my opinion, the power conferred by Section 51 of the Indian Electricity Act does not satisfy either of the two tests mentioned by Das J. I am satisfied that the power so conferred by Section 51 of the Indian Electricity Act is not a quasijudicial power and the State Government was not required to give the petitioners an opportunity of being heard on the ground that the power so exercise was a quasi-judicial power.

11. I am also unable to hold that a provision for the giving of a notice before the exercise of the power under Section 51 of the Indian Electricity Act should be implied. An administrative power conferred by any statute upon any public authority must always be exercised reasonably and in good faith. Cases may arise where such a power cannot be said to have been exercised reasonably unless notice has been given to the persons interested before the exercise of such power and such persons have been asked to show cause why the power should not be exercised. In my opinion, however, a provision for the giving of a notice ought not to be implied in Section 51 of the Indian Electricity Act. To make such an implication would be to hold that in all cases, before the power under Section 51 is exercised, the State Government should give notice to all persons interested. In my opinion, the giving of such a notice could not be reasonably insisted upon where the power was being conferred in general terms. Similarly, it is not incumbent upon the State Government to give such a notice even when the power is conferred in special or restricted terms. Article 19(1)(f) appears to have no bearing in the matter. Section 51 of the Indian Electricity Act itself does not impose any restriction upon the fundamental right to acquire, hold and dispose of property. The right of a citizen to hold property may be affected by the conferment of power under Section 51 of the Indian Electricity Act but it cannot be said that Section 51 itself imposes any restriction upon the right to acquire, hold & dispose of property. To make the section constitutional it is not necessary to imply that notice ought to be given to persons interested before the power under that section is exercised. Though it is not incumbent upon the State Government to give notice of the proposed exercise of power under Section 51, the omission to give the notice is a circumstance which may be taken into consideration in deciding whether the power has been exercised reasonably and in good faith, It is therefore desirable that the State Government should in a given case exercise the powers conferred by Section 51 after giving notice, if possible, to the persons interested. But on a review of the materials on the record I have come to the conclusion that in this case the power conferred by Section 51 was exercised by the State Government reasonably and in good faith. In the first instance, it refused to confer power upon the licensee in general terms. It conferred power in special terms in respect of the plots belonging to Lily Biscuit Co. (Private) Ltd., only after the Supply Company was unable to obtain way leave by amicable negotiations. From the correspondence between the Supply Company and Lily Biscuit Co. (Private) Ltd. it appears that the objection of Lily Biscuit Co. (Private) Ltd. was regarding the route which should be followed in placing the transmission lines over the plots belonging to Lily Biscuit Company (Private' Ltd. It does not appear that Lily Biscuit Co. (Private) Ltd. ever objected that the transmission lines ought not to be placed at all over its plots. Although the Electric Inspector requested Lily Biscuit Co. (Private) Ltd. to state the grounds of objection and also to slate if Lily Biscuit Co. (Private) Ltd. would be prepared to give its consent to the matter under any terms and conditions, in answer Lily Biscuit Co (Private) Ltd. only referred to the proposal and acceptance of a new alignment and to the cutting down of trees and to some alleged intimidation and to the fact that the matter was sub judice. It also appears that the owners of almost all other plots of land concerned had given way leave to the placing of the transmission lines and all alternative routes would have involved additional expenditure in laying the transmission lines. The transmision line was urgently required so as to enable the Electric Supply Company to receive bulk energy from the supply company at their Tribeni power station for immediate electrification of Magra, Pandua etc. and for supplying electrical energy to Tribeni Tissue Factory and Dunlop Compiny on Bandel. Accordingly the Government by its order dated June 26, 1950 accorded sanction to the Supply Company to lay the transmission line over plot Nos. 901 and 902. I am satisfied that the power was exorcised reasonably and in good faith. The order is not vitiated though no notice was given to the petitioners before the power was exercised.

12. No other point has been urged before me.

13. The Bule is discharged. There will be no order as to costs.


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