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

appointed  contractors  who  were  excavating  its  land  for

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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

towers are being constructed on the application dated 2nd 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

Transmission Co.  Ltd  (‘MSETCL’ for  short)  vide letter  24th 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.  

4. The present  appeal  impugns the judgment  and order  dated 9 th

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

appellate  court  on  25th April  2018,  the  appellant  had  initiated

appropriate  proceedings  through  licensing  authority  before  the

District  Magistrate,  Thane and thereupon vide  order  dated  28th

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 25th April 2018 was set aside

by the Bombay High Court vide order dated 17 th 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

Magistrate, Thane vide order dated 28th 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

Limited v. Century Textiles and Industries Limited and Others1

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 Civil Appeal arising out of SLP (C) No. 6243 of 2019 Page 5 of 11

Telegraph Act. Reference was made to Sections 102 and 163 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 Civil Appeal arising out of SLP (C) No. 6243 of 2019 Page 10 of 11

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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