004-SLLR-SLLR-2005-V-2-JINADASA-vs-CEYLON-ELECTRICITY-BOARD-AND-OTHERS.pdf
Jinadasa vs Ceylon Electricity Board and Others (Sripavan, J.)
CA
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JINADASAVSCEYLON ELECTRICITY BOARD AND OTHERSCOURT OF APPEALSRIPAVAN, J.
SRISKANDARAJAH, J.
CA 2080/03
SEPTEMBER 7, 14, 2004OCTOBER 26, 2004NOVEMBER 5,2004
Writ of Certiorari – Electricity Act – Sections 12, 13, 15 – Drawing of electricitylines – No Inquiry held – No procedural fairness – proper procedures not followed-consequences. ?
2-CM 6553
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The 1st Respondent – Ceylon Electricity Board was carrying out a Project, todraw a power line from Matara to Tangalle. As the line was to be drawn over aportion of the land belonging to him, the Petitioner lodged his written objectionswith the 3rd Respondent. An inquiry was held in 1999 and at the Inquiry it wasassured that the power line would not affect the foundation already laid in hisland for a house. In 2002, the 3rd Respondent began to excavate 15ft. behindthe house already built in order to erect a tower, contrary to the previousundertaking given to the Petitioner. The power line according to the Petitioner,if drawn would go over his house for which he did not consent. The Petitionersought to quash the said decision as no Inquiry was held, before the impugneddecision was taken.
HELD
Electricity Act provides the procedure to be adopted with regard to installingelectricity lines. Section 13 makes it mandatory that specifications, plans,drawings of the area of supply of electricity must show the route of eachsuch electric line. These documents were not produced to Court by theRespondents.
Where proper procedures are not followed, the Court will not hesitate tostrike down the impugned order as being ultra vires. Had the 1stRespondent followed the procedure spelt out in Section 15, this Courtwould have been in a position to ascertain whether in fact there was adeviation of the power line which was approved by the Chief ElectricalInspector and produced before the 2nd Respondent (DivisionalSecretary) at the Inquiry.
The procedure followed by the 1st and 2nd Respondents is flawed.APPLICATION for a Writ of Certiorari
Mohan Pieris P. C., with Ms. Nuwanthi Dias for the Petitioner.
Ms. B.Thilakaratne, D. S.G., for Respondents.
cur.adv. vu/f.
January 10, 2005
SRIPAVAN, J.The first respondent Board was carrying out a project to draw a powerline from Matara to Tangalle. The petitioner came to know that the saidline was to be drawn over a portion of the land belonging to him. Hence,
CA
Jinadasa vs Ceylon Electricity Board and Others (Sripavan, J.)
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the petitioner lodged his written objections with the third respondent. The. petitioner alleges that thereafter an inquiry was held by the secondrespondent in the year 1999 and states that at the inquiry it was assuredthat the power line would not affect the foundation already laid in his landfor a house. However, in the year 2001 the third respondent entered thepetitioner’s land, demarcated a corridor for the said line and requestedhim to clear the said portion of the land which the petitioner did withoutany protest. Accordingly 20 coconut trees, 4 jak tress and 12 other treesin the said demarcated portion of the land were felled and the firstrespondent paid compensation to the petitioner in a sum of Rs.46,250.
It is to the petitioner’s surprise that on 5th November 2002, the thirdrespondent began to excavate 15 feet behind the house already built bythe petitioner in order to erect a tower which the petitioner alleges contraryto the previous undertaking given to him. The power line, according to thepetitioner if drawn would go over his house for which he did not consent.The petitioner states that he was not summoned for the purported siteinspection nor was given any hearing before a decision to draw the powerline over his house was taken. Accordingly, the petitioner seeks to quashthe decision contained in the letter dated 9th July, 1999 marked P7 whichthe respondents claim to be the decision to draw the power line over thepetitioner’s house.
The learned Deputy Solicitor General submitted that as averred inparagraph 21 of the affidavit of the second respondent dated 28th April2004, the construction of the tower and the drawing of lines were done inaccordance with the route approved by his predecessor based on a roughsketch produced by the first respondent. In this context, it may be relevantto consider, inter alia, the nature and scope of Sec. 15 of the ElectricityAct which can be summarised as follows
The first respondent or a person authorised by it is entitled toenter upon any land after giving one weeks notice in order tocarryout the works referred to in Sec. 12.;
Prior to the carrying out the works referred to in Sec. 12, the firstrespondent shall give thirty days notice in terms of Sec. 15 (3) asfully and accurately as possible the nature and extent of the actsintended to be done.;
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Any person affected by such notice may within fourteen days isentitled to lodge a written objection with the Government Agentto any of the intended acts of the first respondent,;
The Government Agent shall in writing notify such objection tothe first respondent and fix date for hearing;
The objector shall be informed of the date of hearing.
Thus, the Electricity Act provides the procedure to be adopted withregard to installing electricity lines Sec. 12(3) of the said Act specificallystates that the first respondent shall not execute any of the worksenumerated in Column 1 (which includes laying of electric lines) ofSubsection 1 except in accordance with specifications, plans and drawingsapproved by the Chief Electrical Inspector. Column 2 in Sec. 13 of the saidAct makes it mandatory that specifications, plans and drawings of thearea of supply of electricity must show the route of each such electric line.
Though the second respondent in Paragraph 8 of his affidavit concedesthat an inquiry was held in terms of Sec. 15 of the said Act, neither thespecifications nor the plans and drawings of the area of supply showingthe route of the electric line were produced before court. On the otherhand, the petitioner in Paragraphs 8 and 9 of his affidavit dated 28thNovember, 2003 alleges that he lodged written objections with the thirdrespondent as he was made to understand that the line would be drawnover a portion of his land. This allegation was accepted by the thirdrespondent in his affidavit dated 29th April, 2004.
No procedure had been laid down in the Electricity Act to lodgeobjections with the third respondent. Since the petitioner on his own volitionlodged objections with the third respondent, the only inference that couldbe drawn was that the first respondent failed to give the petitioner thirtydays notice in terms of Sec. 15(3) specifying accurately the nature andextent of the acts intended to be done together with plans and drawings of• the area of electricity supply showing the route of such line. It is only aftersuch a notice is given the petitioner is legally entitled to lodge his objectionswith the Government Agent. It is imperative that the procedure laid down inthe Electricity Act should be properly observed. The provisions of the statuein this respect are supposed to provide safeguards to the petitioner. It is
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only by procedural fairness administrative powers are rendered tolerable.When an administrative act is challenged by way of judicial review, thecourt is concerned with the legality of the order made. Where properprocedures are not followed, the court will not hesitate to strike down theimpugned order as being ultra vires. Had the first respondent followed theprocedure spelt out in Sec. 15, this court would have been in a position toascertain whether in fact there was a deviation of the route of the powerline which was approved by the Chief Electrical Inspector and producedbefore the second respondent at the inquiry.
The learned Deputy Solicitor General urged that in October, 2001 thetrees were marked and felled from the petitioner’s land in order to maintaina corridor of sixty feet for the purposes of drawing electricity lines. The firstrespondent accordingly paid compensation to the petitioner in a sum ofRs. 46,250 on 25th January, 2002 as evidenced by P5. This fact is acceptedby the third respondent in Paragraph 12(e) of his affidavit dated 29th April,2004. Notwithstanding the payment of compensation to the petitioner tothe portion of the land already cleared, the first respondent by an undatedletter marked P10 requested the petitioner to cut down further 29 trees onor before 17th December, 2003 for which, compensation has been estimatedas Rs.38,600. This raises a doubt as to whether the first respondent wastrying to deviate from the original route and demanded the petitioner to cutdown further trees contrary to the proviso Sec. 17 of the said Act whichreads as follows:
“Provided that where compensation has been paid under any of thosesections, no further compensation shall be payable for the felling orlopping of any tree or the removal of vegetation which has grown orbeen allowed to grow or for the removal of any wire which has beenfixed after that payment in such a manner as to obstruct or interferewith the electric line or apparatus.”.
Though counsel for the respondents on 7th September, 2004 movedfor time to get instructions with regard to the basis upon which the documentmarked P10 was sent to the petitioner, no satisfying explanation wastendered to court.
The respondents in their written submissions stated that as long asthe power line is in the construction phase and if the officers of the first
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respondent Board are of the opinion that additional trees, outside the 60feet perimeter should be cleared then they could issue vouchers providingcompensation as permitted by law. However, the learned Deputy SolicitorGeneral did not refer to any statutory provision which empowers the firstrespondent to do so. In view of the foregoing, I conclude that the procedurefollowed by the first and/or second respondents are flawed. No electriclines could be drawn on a rough sketch provided by the first respondent asstated by the second respondent in Paragraph 21 of his affidavit.Accordingly, a writ of certiorari is issued quashing the decision containedin the letter dated 9th July, 1999 marked P7. The petitioner is entitled forcosts in a sum of Rs.5,000 payable by the first and the second respondentsin equal shares.
Sriskandarajah, J. — I agreeApplication Allowed.