(This W.P. filed under Articles 226 and 227 of the Constitution, praying to quash the order dt. 30.9.2009 passed by R4, at Anx-A.)


Both these writ petitions are disposed of by this common order, in as much 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, areca nut 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 herein 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.


4. 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 Telegraphic Act, in as much 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.


5. 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.


6. The same argument is adopted by the learned counsel appearing for the petitioners in the companion writ petition.


7. Mr. K.M. Nataraj, learned counsel appearing for AMR submits that the word ?of? in the notification issued under section 164 of the Act should be read in the context in which it is used. He submits that pursuant to the notification the KPTCL has permitted AMR to erect the towers and draw the lines. He further submits that having regard to the language of the section 10 of the Telegraph Act, the drawing or erection of towers as well as drawing the line does not vest only with the State but also with a private company under an agreement with KPTCL. Hence he submits that the notification issued would encompass not only the instrumentality of the State but also the private company. He further submits that in identical case this court has taken a view that a private company can have recourse to section 17 of the Indian Telegraph Act for removal of any obstruction.


8. Mr. N.K. Gupta, learned counsel appearing for the KPTCL would submit that having regard to the shortage of power in the State the KPTCL has delegated its power to the AMR for erection of towers and supply of electricity. He further submits that the two notifications issued in the local daily newspapers would also indicate that the said power for removal of obstruction is delegated to AMR for erection of towers.


9. Before adverting to the contentions raised, it is necessary to look into the notification itself which is published under section 164 of the Act. The notification would read as under:


?In exercise of powers conferred by Section 164 of the Electricity Act, 2003 (Central Act 36 of 2003), the Government of Karnataka hereby order for the placing of electricity supply lines, appliances and apparatus for the transmission of energy hereby confers upon the Karnataka Power Transmission Corporation Limited, all Electricity Supply Companies and Generating Companies of the State, the powers which the telegraphic authority possesses under section 10 to 19 and 19-A of the Indian Telegraph Act, 1885 (Central Act 13 of 1885) with respect to placing of telegraph lines and posts for the purpose of telegraph established or maintained by the Government or to be so established or maintained; and the Government of Karnataka further directs that the powers conferred under this order are exercise be subject to the provisions of the Indian Telegraph Act, 1885.?


10. The notification would indicate that the State has conferred upon the Karnataka Transmission Corporation Limited, all Electricity Supply Companies and Generating Companies of the State the powers which the telegraphic authority possesses under section 19 and 19-A of the Indian Telegraph Act with respect to placing of telegraph lines and posts for the purpose of telegraph established or maintained. As observed the main thrust of the argument of the learned counsel appearing for the petitioners is that the electrical supply company and generating company of the State would essentially mean that it should be an instrumentality of the State. In this regard as to how the word ?of? that is used in the notification is required to be looked in to and in what context the notification has been published. In this regard one can refer to the Law Lexicon which would deal with the word ?of? which would reads as under:


?A term denoting that from which anything proceeds indicating origin, source, descent, and the like; as, he is of noble blood. Associated with or connected with usually in some casual relation, efficient, material, formal, or final. The word has been held equivalent to after; at, or belonging to; in possession of; manufactured by; residing a; from.?


11. The Apex Court in the case of S.Gopal Reddy vs. State of Andhra Pradesh, reported in AIR 1996 SC 2184 regarding interpretation of statutes and construction of expression in statute, has observed thus:


?It is well known rule of interpretation of statutes that the text and the context of the entire Act must be looked into while interpreting any of the expression used in a statute. The Courts must look to the object which the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary.?


12. In the case of Brijendra Singh vs. State of U.P. and others, reported in (1981) 1 SCC 597, the Apex Court, in similar, if not identical, circumstances has observed thus:


???????. Even so, the quality and quantity of the honesty requisite for constituting ?good faith? is conditioned by the context and object of the statute in which this term is employed. It is a cardinal canon of construction that an expression which has no uniform, precisely fixed meaning, takes its colour, light and content from the context.? (emphasis supplied)


13. It is to be noticed that the Government in exercise of powers under section 164 of the Act has conferred upon the respondent the power to be exercised under sections 10 to 19 of the Indian Telegraph Act. A copy of the notification is made available at Annexure-J to the writ petition. Section 164 of the Act reads as under:


?Exercise of powers of Telegraph Authority in certain cases.?The Appropriate Government may, by order in writing, for the placing of electric lines or electrical plant for the purpose of telephonic or telegraphic communications necessary for the proper co-ordination of works, confer upon any public officer, licensee or any other person engaged in the business of supplying electricity under this Act, subject to such conditions and restrictions, if any, as the Appropriate Government may think fit to impose and to the provisions of the Indian Telegraph Act, 1885 ( 13 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 purpose of a telegraph established or maintained, by the Government or to be so established or maintained.?


14. Under Section 164 of the Act, the Government may confer powers of placing of electric lines or electrical plant for the transmission of electricity upon any public officer, licensee or any other person engaged in the business of supplying electricity under this Act. Indeed section 2 (49) of the Act defines ?person?, which shall include any company or body corporate or association or body of individuals. Hence such conferment or power under section 164 of the Act can be made on any company or individual. Indeed in this regard it is to be noticed that conferment of power on AMR respondent-2 to proceed under the Telegraph Act would stem from the words ?any other person engaged in the business of supplying electricity under the Act.? In this case on hand, it is to be noticed that since there is severe shortage of power supply in the city of Mangalore, the KPTCL have recommended to the Government to distribute 2 Mega Watts Small Water Power Project to the AMR company to be constructed across Netra River near Parla village of Bantwala Taluk in South Canara district. The Government order dated 13.9.2004 which is made available by the learned counsel for KPTCL would indicate that the supply of power is to be distributed by AMR by installing necessary towers. In fact the contention of Mr. G.V. Shantharaju, learned senior counsel, is answered by the provisions of section 164 of the Act itself, in as muchas, it is not necessary that the power to invoke the provisions of the Telegraph Act is conferred only on the instrumentality of the State. The petitioner as well as the respondents have made available the notification published in the newspapers which is dated 22.5.2007. Indeed under the said notification, it is stated that AMR shall formulate a scheme under section 28(1) of the Electricity Supply Act, 1948 and the same is published in pursuance of section 29(ii) of the said Act for the information of the licensee and any other persons interested. The notification is published by the KPTCL. The scheme also envisages that construction of 110 KV D/C Transmission Line is to be erected by AMR. The salient features being the said scheme proposed 110 KV Double Circuit Line will be constructed using conventional type G.I. Lattice type towers with Lynx ACSR for evacuation of power generated from Hydro Power Project across Netravathi River. The areas is also specified, in as much as, the proposed transmission line of length 2 kms and have a corridor width of 22 mtrs. passes through several villages including Mooda village of Bantwal Taluk. The notification also indicates that power generation by the aforesaid IPPs have been approved by the Government pursuant to the Govt. Order dated 11.9.2006. In no uncertain terms it is stated that the generating company shall have and shall exercise all power which the Telegraph authorities possess under Part III of the Indian Telegraph Act, 1885 for carrying out the above scheme as per the Govt. Order dated 24.3.2006. Thus AMR in its individual capacity will not be in a position to invoke the provisions of the Indian Telegraph Act, the conferment of the power by the State itself would indicate that there is delegation of power. Indeed it is to be noticed that the AMR is required to generate power and supply it to the KPTCL. Hence I am of the view that AMR notwithstanding the fact it not being an instrumentality of the State, the fact that power is conferred upon it under the said notification permitting it to avail the provisions of the Indian Telegraph Act for erection of towers and for removal of obstruction, it cannot be said that AMR being a private company and not an instrumentality of the State cannot have recourse to the provisions of the Indian Telegraph Act for removal of obstruction.


15. In this regard it is necessary to note the relevant provisions relating to the removal of obstruction. The removal of obstruction would commence from Part III of the Indian Telegraph Act. Section 10 of the Act would speak about the powers conferred by this provision on the telegraph authority to place and maintain telegraph lines and posts. Section 10(d) of the Act would speak about the powers conferred by this section on the telegraph authority that it shall do as little damage as possible, and when it has exercised the powers in respect of any property other than that referred to in clause shall pay full compensation to the persons interested for any damage sustained by them by reason of the exercise of the powers. Section 16 of the Act would speak about the powers conferred by section 10 and disputes as to compensation in case of property other than that of a local authority is sought to be made use for the purpose of erection of telegraph posts the compensation is required to be determined and paid. Sub-section (4) reads that if any dispute arises as to the persons entitled to receive compensation, the same shall be referred to the District Judge and after notice to the parties and hearing such of them the final determination could be done. Indeed it is to be noticed that pursuant to section 164 of the Electricity Act the said power is conferred on any public officer, licensee or any other person engaged in the business or supplying electricity to exercise its powers with respect of 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. Indeed section 10 of the Indian Telegraph Act, is required to be read harmoniously with section 164 of the Act, in as much as, any person or a public officer or a licensee is required to place lines or electrical plant for the transmission of electricity or for the purpose of telephonic or telegraph communications necessary for the proper coordination and exercise powers under section 10 of the Telegraph Act. Hence it cannot be said that AMR is not entitled to have recourse to section 10 of the Indian Telegraph Act.


16. During the course of hearing, AMR as well as the KPTCL have made available certain notification issued by the State with a memo. The petitioners are notified of this memo as well as its contents. KPTCL has made available the agreement entered into between the Government of Karnataka, represented by the Secretary to the Govt. Dept. of Energy as well as AMR Power Private Ltd., regarding the terms of the supply of the power. Clause 2 of the said agreement would indicate that the land required by the Company shall be acquired for the Company either by the Government at a nominal amount of Rs. 1000/- per annum or such annual lease amount as the Government may determine from time to time for a period of the above mentioned 30 years, or from the private owners through direct purchase. The transmission line from the power house to the KPTCL grid point shall be got constructed by KPTCL at Company?s cost. The transmission line would be maintained by the Company with the KPTCL. The Company shall pay wheeling and banking charges and it shall be as per the rates fixed by the KPTCL. A separate agreement should be made by the Company with the KPTCL in this regard. The Company shall enter into wheeling and banking agreement with the KPTCL in case of selling power to the third party and power purchase agreement in case of selling power to the KPTCL. These are the salient features of the agreement between the KPTCL as well as respondent AMR. Another communication dated 15.11.2007 issued to the second respondent would relate to the words which are to be carried out by the Company on self execution basis. It is to be noticed that the way leave problems if any shall be settled by the AMR. The compendious reading of the documents made available and also the provisions of the Electricity Act, namely, section 164 of the Act as well as section 10 and 16 of the Indian Telegraph Act, I am of the view that it cannot be said that AMR cannot initiate proceedings under section 10 of the Indian Telegraph Act for removal of the obstruction.


17. The delegation of power fell for consideration before a Division Bench of this Court in W.A. Nos. 2669/1999 to 2671/1999 and connected matters, disposed of on 6.8.2003. The Division Bench has observed thus:


??? entrusting the work of erecting towers and drawing lines to the contractor, the Board delegated its power of eminent domain and thereby abdicated its statutory power in favour of the company and its contractor????????. As per condition No. 4 of the Work Order, the company is required to get the line extension work done through a Class-I Contractor on its own cost as estimated by the Executive Engineer (Electrical), O & M Division. Further, in terms of condition No. 4, the company has to pay 20% of the cost of the estimate towards supervision charges. Admittedly, the supervisory cost has paid by the company. The contractor appointed by the company is a Class-I Electrical Contractor and his appointment was approved by the Board.?


18. It is to be noticed that the supply of electricity is a monopoly trade of the State. It is well settled that if a State monopoly is created, the State may carry it on by a corporation owned or controller by it. The question as to whether the State itself should carry on the monopoly trade or whether it could also carry on monopoly trade by appointing agents fell for consideration in the case of Akadasi Padhan vs. State of Orissa and others, A.I.R. 1963 SC 1047. The Apex Court has observed thus:


?If a Stage monopoly is created, the State may carry it on by a corporation owned or controller by it. Thus far, there is no difficulty. Mr. Pathak, however, contends that the State cannot appoint any agents on carrying on the State monopoly, whereas the learned Attorney General urges that the State is entitled not only to carry on the trade by itself or by its officers serving in its departments, but also by agents appointed by in it that behalf?????????


?It seems to us that when the State carries on any trade, business or industry, it must inevitably carry it on either departmentally or through its officers appointed in that behalf. In the very nature of things, the State as such, cannot function without the help of its servants or employees and that inevitably introduces the concept of agency in a narrow and limited sense. If the state cannot act without the aid and assistance of its employee or servants, it would be difficulty to exclude the concept of agency altogether. Just as the State can appoint a public officer to carry on the trade on its behalf, so can it appoint an agent to carry on the trade on its behalf??????. But there may be some trades or businesses in which it would be inexpedient to undertake the work of trade or business departmentally or with the assistance of State servants. In such cases, it would be open to the State to employ the services of agents, provided the agents work on behalf of the State and nor for themselves.?


(Emphasis Supplied)


In the present case the supply of power is carried out by the KPTCL through its agent. In the case on hand, it is to be noticed that the AMR has been conferred with the powers for removal of obstruction and have recourse to the Indian Telegraph Act, I am of the view that the powers which are conferred on the KPTCL under section 164 of the Electricity Act is delegated in favour of the AMR. This opinion of mine is on the basis of the notification issued by the KPTCL. This would answer the contention of Mr. G.V. Shantharaju, learned senior counsel appearing for the petitioner that there cannot be any delegation of power in favour of respondents-2, AMR.


19. Indeed, it is to be noticed that there is shortage of power supply in the State. Nobody is immune from the shortage of power. It is to be noticed that the Apex Court in the case of Ramniklal Bhutta and another vs. State of Maharashtra and others, (1997) 1 0SCC 134 while dealing with the question of acquisition of land for public purpose has observed thus:


?The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point???? The courts have to weigh the public interest vis--vis the private interest while exercising the power under Article 226. It may even open to the court to direct in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong. To wit, it is ultimately a matter of balancing the competing interests, it is neither possible nor advisable to say.?


20. Mr. Shantharaju, learned senior counsel appearing for the petitioner sought to press into service the ruling of the Delhi High Court in the case of Sh. Surat Singh vs. Municipal Corporation of Delhi, A.I.R. 1989 Delhi 51, wherein certain provisions of Electricity Act, 1910 fell for consideratio

n. In the said decision it is observed that there is no provision of law or any other notification which has been brought to the notice of the court in support of the contention that DESU authorities have right to fix electricity poles in private property whenever and wherever they so wanted. Indeed it is to be noticed that was a case where certain electricity poles were sought to be erected and recourse to section 10 of the Telegraph Act was invoked. The Delhi High Court was of the view that the said powers under section 10 of the Act can be exercised only by the instrumentality of the State and not by any private person. But it is to be noticed that the said decision was rendered in the context of the fact stated therein and also while interpreting the provisions of the Electricity Act, 1910. But however in the case on hand the notification issued under section 164 of the Electricity Act, 2003, which in no uncertain terms empowers ?any other person? to invoke the provisions of the Indian Electricity Act for erection of electric lines or towers would necessarily mean that it is a delegation of power by the KPTCL to its contractor for doing certain work. Indeed a private body without it being conferred with powers by the principal cannot invoke the provisions of the Indian Telegraph Act for erection of electric poles or towers. That power must stem from the statute or in the absence of a statute by an instrumentality of the State. In the case on hand, as has been observed earlier, the KPTCL is an instrumentality of the State which has conferred powers pursuant to a notification on AMR to invoke the provisions of the Indian Telegraph Act to erect poles and have recourse for removal of any obstruction. 21. Having said so, I am of the view that the contention of Mr. Shantharaju, learned senior counsel of the effect that the notification issued wherein the Board should necessarily mean that the Company must be an instrumentality of the State cannot be accepted. 22. On facts it is to be noticed that the District Magistrate has bestowed his attention and has found that the obstruction is required to be removed. That being a question of fact and on the basis of appreciation of the material on record, this court in its jurisdiction under Article 226 of the constitution cannot upset the said order. Indeed that is also not the case of the learned senior counsel. 23. Consequently, I am of the view that the impugned order passed by the District Magistrate, respondent-4, cannot be faulted. There is no merit in these writ petitions. Petitions rejected.