Andhra Pradesh High Court - Amravati
M Umadevi vs State Of Andhra Pradesh, on 1 October, 2020
Author: M. Ganga Rao
Bench: M. Ganga Rao
HONOURABLE SRI JUSTICE M. GANGA RAO
Writ Petition No.10844 of 2019
ORDER:
This writ petition is filed under Article 226 of the Constitution of India to issue writ of mandamus declaring the notice dated 04.07.2019 issued by the 3rd respondent proposing to erect High Tension Towers and Electrical Lines through the land of the petitioner situated in Survey No.224 of Kagithalapur village, Manubolu Mandal, SPSR Nellore District under the provisions of Indian Telegraph Act, 1885 as being illegal, arbitrary, unfair and violative of Articles 14, 19 and 300-A of the Constitution of India and contrary to the provisions of Electricity Act, 2003 and consequently to restrain the respondents from erecting the High Tension Towers and Electrical Lines through the land of the petitioner.
The case of the petitioner is that she purchased huge extent of land Ac.133.97 cents in Survey Nos.221, 224, 226 and 234 etc., in Kagithalapur village, Manubolu Mandal, SPSR Nellore District, through various registered sale deeds executed in the year 2012 with an intention to establish Engineering Industry to provide employment to the educated unemployed youth. The petitioner also obtained loan from State Bank of India, Manubolu Branch, SPSR Nellore District for the purpose of establishing Small Scale Industry. The petitioner further states that the Power Grid Corporation of India installed and erected two huge High Tension Transmission Tower in a portion petitioner's land in Survey No.224 in the year 2012. The Power Grid Corporation turned deaf ear to the petitioner's representation and paid meagre compensation to her. When the 2 MGR, J W.P.No.10844 of 2019 petitioner is taking steps to establish an Engineering Industry in the remaining land, the Power Grid Corporation erected again another set of huge high tension towers in her land in Survey No.224 parallel to the existing power transmission towers in the year 2015, without any notice or opportunity to the petitioner. The petitioner filed W.P.No.19167 of 2015 questioning the said action of the Power Grid Corporation in erecting the high tension towers in the petitioner's land and the said writ petition was withdrawn on payment of higher compensation and Power Grid Corporation promised not to lay any future power lines in the petitioner's land. Now, the A.P. Transco proposed to erect the two huge High Tension Towers in the petitioner's land in Survey No.224, and to draw high tension power lines parallel to the power lines of the Power Grid Corporation. Now the 3rd respondent issued impugned notice dated 04.07.2019, under the provisions of Indian Telegraph Act, 1885 intimating the petitioner that the 2nd respondent proposed to erect High Tension Towers to draw transmission lines through the petitioner's land in Survey No.224, from Manubolu Sub-station to 132/33KV Kalluripalli (Golagamudi) and offered to pay compensation amount under the provisions of the Indian Telegraph Act, 1885. Being aggrieved by the impugned notice, this writ petition came to be filed.
3. The respondents 2 and 3 filed their counter stating that the Government of Andhra Pradesh exercising the power under Section 164 of the Electricity Act, 2003 (for brevity hereinafter called as 'the Act, 2003') conferred power on the 2nd respondent vide 3 MGR, J W.P.No.10844 of 2019 G.O.Ms.No.115, Energy Department, dated 07.10.2003 for transmission of the power and Bulk Supply Licence in the State of Andhra Pradesh and the power is also conferred for placing of the electric supply lines or electric plant for the transmission of the electricity or for the purpose of Telephonic or Telegraphic Communications for proper coordination of works to that of a Telephonic authority possessed under the provisions of the Indian Telegraph Act, 1885. The 2nd respondent accorded administrative approval for erection of 132/33KV Sub-station at Kallurpalli (Near Golagamudi) and connected 132 KV DC radial line from existing 400KV substation Manabolu in SPSR Nellore District on 02.06.2015. The scheme was published in A.P. Gazette dated 10-12-2015 inviting objections to the proposed lines and no body has submitted any objections including the petitioner for the said work. After the alignment was fixed and total of 85 towers are proposed for the said line and two towers are coming in the petitioner's land (Tower No.22 and 23) Kagithalapur village, Manubolu Mandal, SPSR Nellore District. It further states that the works out of 85 towers, 79 towers are already completed including line works. There is no provision either in the Act, 2003 or under the provisions of Indian Telegraph Act, 1885, which obligates the respondents to give notice and consider the objections for erection of high tension towers and drawing of power lines across the private land of the petitioner. However, the respondents has issued impugned notice intimating the erection of proposed high tension towers and drawing of power 4 MGR, J W.P.No.10844 of 2019 line and entitlement of the compensation under the provisions of the Indian Telegraph Act, 1885. Payment of compensation would arise only after erection of towers. The issue of payment of compensation was decided in the catena of judgments of this Court and the Hon'ble Supreme Court. This court, in Devisetty Ramaswamy v. Chief Engineer, 400 KV Line, A.P. TRANSCO (APSPDCL), Hyderabad1 and in The Power Grid Corporation of India Limited v. Century Textiles and Industries Limited and others2.
Sri Srinivas Polavarapu, learned counsel appearing for the petitioner would contend that the proposed laying of High Tension power lines through the petitioner's land in Survey No.224 by erecting huge High Tension Towers and informing the same to the petitioner through the impugned notice, which action of the respondents totally deprives the petitioner to establish Engineering Industry in the land, as already two high tension power lines are drawn across the petitioner's land in Survey No.224, by the Power Grid Corporation, of course, meagre compensation was paid to the petitioner. The entire land in Survey No.224 is going to be useless even for cultivation as the high tension power lines are drawn across the petitioner's land. He further contends that the 2nd respondent has not notified any scheme as required under the provisions of Section 67 of the Act, 2003 and no consent of the petitioner is obtained as required under Section 69 (2-a) of the Act. No licence was obtained by the 2nd respondent from the competent authority under Section 14 1 2013 (4) ALD 88 2 2017 (5) SCC 143 5 MGR, J W.P.No.10844 of 2019 of the Act, 2003. No notice was given to the petitioner calling for objections to be considered under Section 67 (2) (d) of the Act, 2003. No Rules were framed under Section 67 (2) of the Act, 2003 by the appropriate Government for laying electrical lines. The 2nd respondent cannot draw the power lines across the petitioner's land according to its whims and fancies, which is illegal, arbitrary and violative of Articles 14, 19, 21 and 300-A of the Constitution of India and contrary to the provisions of the Act 2003 and the impugned notice is liable to be set aside and the respondents 2 and 3 shall be restrained from erecting High Tension Towers in the petitioner's land to draw power transmission lines.
Sri Y. Nagi Reddy, learned standing counsel appearing for the respondents submits that the 1st respondent-Government of Andhra Pradesh exercising the power under Section 164 of the Act, 2003 conferred power on the 2nd respondent through G.O.Ms.No.115, Energy Department, dated 07.10.2003, a licence for transmission and bulk supply of power and for erection of High Tension Towers and electrical lines for the purpose of transmission of electricity or for the purpose of Telephonic or Telegraphic Communications and that of the Telegraphic authority possessed under the provisions of the Indian Telegraph Act, 1885. The 2nd respondent accorded administrative approval for erection of 132/33KV Sub-station at Kallurupalli (near Golagamudi) and connected 132KV DC radial line from existing 400KV substation Manabolu in SPSR Nellore District on 02.06.2015. The scheme was published in A.P. Gazette dated 6 MGR, J W.P.No.10844 of 2019 10.12.2015 inviting objections to the proposed lines and no objections are received from any body including the petitioner. Total number of 85 towers are required for drawing the lines and out of 85 towers, 79 towers are already completed including line works and other towers could not be completed, because of the interim orders passed by this Court in this writ petition, including two towers No.22 and 23 fall in the petitioner's land are not completed. The contention of the petitioner that before issuing the impugned notice, no notice requiring the petitioner to submit her objections for laying a tower is issued and no compensation is settled in respect of damage or diminution of the value caused to the petitioner's land holds no water. In view of the decision of this Court and the Hon'ble Supreme Court in Devisetty Ramaswamy v. Chief Engineer, 400 KV Line, A.P. TRANSCO (APSPDCL), Hyderabad (1 supra) and in The Power Grid Corporation of India Limited v. Century Textiles and Industries Limited and others (2 supra), wherein it is held that the land owner is not entitled for any prior notice calling for objections and his consent is not required for erecting the transmission lines before payment of compensation. Hence, the petitioner is not entitled for any prior notice to consider her objections. The request of the petitioner for realignment of the transmission line is technically not feasible as the erection of 79 towers was completed and transmission lines were also drawn. The petitioner is entitled only for compensation under the provisions of Indian Telegraph Act, 1885 for which after erection of the towers and drawing of lines, the petitioner 7 MGR, J W.P.No.10844 of 2019 has to approach the authority under Section 10 of the Act, if she is not satisfied with the compensation she has to approach the District Court for payment of adequate compensation. If the petitioner has any grievance for realignment or for removal of the towers, she has to approach the District Magistrate by way of representation and the same will be considered. In the event of the District Magistrate passes any order for removal or realignment of the towers, the same will be considered subject to technical feasibility and appeal. He sought for dismissal of the writ petition.
Having regard to the facts and circumstances of the case, considering the submissions of the counsel and on perusal of the record, it appears that the petitioner purchased land to an extent of Ac.133.97 cents in Survey Nos.221, 224, 226, 232 etc., in Kagithalapur village, Manubolu Mandal, SPSR Nellore District through various registered sale deeds in the year 2012 with an intention to establish Engineering Industry to provide employment to several educated unemployed youth in the area. However, in the year 2012, the Power Grid Corporation of India installed and erected two huge High Tension Transmission Towers in the petitioner's land in Survey No.224. Again, the Power Grid Corporation of India erected two High Tension Transmission towers in the year 2015 and she was paid meagre compensation. In view of passing of High Tension Transmission lines over the petitioner's land, the land has become unfit for establishment of Engineering Industry or for agricultural activity and the value of the land is diminished. Now the 8 MGR, J W.P.No.10844 of 2019 3rd respondent has issued impugned notice proposing to erect High Tension Transmission towers in the petitioner's land parallel to the existing towers erected by the Power Grid Corporation of India. The impugned letter reads as follows:
"AS PER INDIAN TELEGRAPH DEPARTMENT RULES, 1985 NOTICE Deputy Executive Engineer, TLC/Sub-Station, Sub-Division, A.P. Transco, 220 KV Sub-station Compound, Ambapurma, Nellore-524004.
This is to inform Umareddy that as per Section 10 to 19 of the Indian Telegraph Department Rules, 1985 and Indian Electricity Act, 2003, and the orders of the Chief Engineer, A.P. Electricity that the construction of the Towers of Electricity Supply 132 KV Line 400/220/132 KV Manubole Sub-station to 132/33 KV Kallurpalli (Golagamudi) are laying through your lands. The below mentioned crop and trees are going to be removed by us.
For the purpose of erecting these Towers, your lands will be dug and dumped with concrete. Due to concrete works in your lands, as the value of the lands will be decreased (Land diminution value), Rs.2,00,000/- (Rupees two lakhs) will be paid to the farmers as per the orders of the Collector and District Magistrate vide File No.Col.NLR.GSEGOLA (GEN)/183/2018-IA-GI-REVNLR, dated 11.11.2018. Later, towers will be constructed and thereafter electricity lines will be laid between the tower to tower. Due to the erection works in your land and the loss caused to you, the compensation amount will be fixed by the Mandal Agricultural/ Horticulture/Forest Officers and Revenue Department personnel.
While doing the above works, the trees which were removed by us also will be paid compensation as per the rates fixed by the officials."
The proposed activity of the erection of High Tension Transmission lines across the petitioner's land by the respondent 9 MGR, J W.P.No.10844 of 2019 authorities is governed by the provisions of Sections 10, 16 and 17 of the Indian Telegraph Act, 1885 and Sections 67, 164 and 165 of the Act, 2003. It is beneficial to extract the said provisions for easy reference of the said provisions.
"10. Power for telegraph authority to place and maintain telegraph lines and posts.--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.
16. Exercise of powers conferred by section 10, and disputes as to compensation, in case of property other than that of a local authority.--(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 (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 10 MGR, J W.P.No.10844 of 2019 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.
17. Removal or alteration of telegraph line or post on property other than that of a local authority.--(1) When, under the foregoing provisions of this Act, a telegraph line or post has been placed by the telegraph authority under, over, along, across, in or upon any property, not being property vested in or under the control or management of a local authority, and any person entitled to do so desires to deal with that property in such a manner as to render it necessary or convenient that the telegraph line or post should be removed to another part thereof or to a higher or lower level or altered in form, he may require the telegraph authority to remove or alter the line or post accordingly:
Provided that, if compensation has been paid under section 10, clause (d), he shall, when making the requisition, tender to the telegraph authority the amount requisite to defray the expense of the removal or alteration, or half of the amount paid as compensation, whichever may be the smaller sum.
(2) If the telegraph authority omits to comply with the requisition, the person making it may apply to the District Magistrate within whose jurisdiction the property is situated to order the removal or alteration.
(3) A District Magistrate receiving an application under sub-
section (2) may, in his discretion reject the same or make an order, absolutely or subject to conditions, for the removal of the telegraph line or post to any other part of the property or to higher or lower level or for the alteration of its form; and the order so made shall be final.
Section 67: Provisions as to opening up of streets, railways, etc): --- (1) A licensee may, from time to time but subject always to the terms 11 MGR, J W.P.No.10844 of 2019 and conditions of his licence, within his area of supply or transmission or when permitted by the terms of his licence to lay down or place electric supply lines without the area of supply, without that area carry out works such as -
(a) to open and break up the soil and pavement of any street, railway or tramway;
(b) to open and break up any sewer, drain or tunnel in or under any street, railway or tramway;
(c) to alter the position of any line or works or pipes, other than a main sewer pipe;
(d) to lay down and place electric lines, electrical plant and other works;
(e) to repair, alter or remove the same; (f) to do all other acts necessary for transmission or supply of electricity. (2) The Appropriate Government may, by rules made by it in this behalf, specify, -
(a) the cases and circumstances in which the consent in writing of the Appropriate Government, local authority, owner or occupier, as the case may be, shall be required for carrying out works;
(b) the authority which may grant permission in the circumstances where the owner or occupier objects to the carrying out of works;
(c) the nature and period of notice to be given by the licensee before carrying out works;
(d) the procedure and manner of consideration of objections and suggestion received in accordance with the notice referred to in clause (c);
(e) the determination and payment of compensation or rent to the persons affected by works under this section;
(f) the repairs and works to be carried out when emergency exists;
(g) the right of the owner or occupier to carry out certain works under this section and the payment of expenses therefor;
(h) the procedure for carrying out other works near sewers, pipes or other electric lines or works;
(i) the procedure for alteration of the position of pipes, electric lines, electrical plant, telegraph lines, sewer lines, tunnels, drains, etc.;
(j) the procedure for fencing, guarding, lighting and other safety measures relating to works on streets, railways, tramways, sewers, drains or tunnels and immediate reinstatement thereof;
12 MGR, J W.P.No.10844 of 2019
(k) the avoidance of public nuisance, environmental damage and unnecessary damage to the public and private property by such works;
(l) the procedure for undertaking works which are not repairable by the Appropriate Government, licensee or local authority;
(m) the manner of deposit of amount required for restoration of any railways, tramways, waterways, etc.;
(n) the manner of restoration of property affected by such works and maintenance thereof;
(o) the procedure for deposit of compensation payable by the licensee and furnishing of security; and
(p) such other matters as are incidental or consequential to the construction and maintenance of works under this section. (3) A licensee shall, in exercise of any of the powers conferred by or under this section and the rules made thereunder, cause as little damage, detriment and inconvenience as may be, and shall make full compensation for any damage, detriment or inconvenience caused by him or by any one employed by him.
(4) Where any difference or dispute [including amount of compensation under sub-section (3)] arises under this section, the matter shall be determined by the Appropriate Commission. (5) The Appropriate Commission, while determining any difference or dispute arising under this section in addition to any compensation under sub-section (3), may impose a penalty not exceeding the amount of compensation payable under that sub-section. Section 164: (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 transmission of electricity or 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, 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. Section 165: (Amendment of sections 40 and 41 of Act 1 of 1894): --- (1) In section 40, sub-section (1) of clause (b) and section 41, sub- section (5) of the Land Acquisition Act, 1894, the term "work" shall be deemed to include electricity supplied or to be supplied by means of the work to be constructed.
13 MGR, J W.P.No.10844 of 2019 (2) The Appropriate Government may, on recommendation of the Appropriate Commission in this behalf, if it thinks fit, on the application of any person, not being a company desirous of obtaining any land for its purposes, direct that he may acquire such land under the provisions of the Land Acquisition Act, 1894 in the same manner and on the same conditions as it might be acquired if the person were a company.
A reading of Section 10 of the Indian Telegraph Act, 1885 states that the Telegraphic authority is authorised to place and maintain telegraph line under, over, along, or across and posts in or upon any immovable property and while acquiring the power to lay down telegraphic lines, the Central Government does not acquire any right other than that of user in the property. The Telegraphic Authority should ensure that minimum damage as possible should be caused to the land or trees and the Telegraphic Authority shall also be obliged to pay full compensation to all persons interested for any damage sustained while exercising the power under Section 10 of the Indian Telegraph Act. A careful reading of provisions of Section 164 of the Act, 2003 empowers the appropriate Government by an order in writing to confer upon a public officer, licensee or any other person engaged in the business of supplying electricity, the power to place electric lines or an electric plant for the transmission of electricity subject to such conditions and restrictions as it may think fit to impose and thereupon, the authorised public officer, licensee or other person would have all the powers which a telegraph authority possess under the provisions of Indian Telegraphic Act 1885 with regard to placing of telegraph lines and posts. The provisions of Section 67 of the Act, 2003 on the other 14 MGR, J W.P.No.10844 of 2019 hand deals with works of licensees. Sub-section (1) thereof states to the effect that a licensee may, subject to the terms and conditions of his licence, lay or place electric supply lines within his area of supply or transmission. Section 67 (2) of the provisions of the Act, 2003 authorises the appropriate Government to make rules on various issues, including cases and circumstances in which the consent of an owner/occupier may be required for carrying out the works. The Works of Licensees Rules, 2006 were framed by the Government of India under Section 67 (2) read with Section 176 (2) (e) of the Act, 2003. Whereas the Rules states that a notice should be given to the land owner before erection of the transmission lines and transmission towers in the private property of the people. A combined reading of the provisions of Sections 10 to 17 of the Indian Telegraph Act, 1885 and Sections 67, 164 and 165 of the Act, 2003 and the Works of Licensees Rules, 2006 does not contemplate issuance of any prior notice calling objections for erection of high tension transmission towers and transmission lines in the private property of the people before starting erection of high tension towers and transmission lines across the private property. As principles of natural justice requires, the 3rd respondent, on behalf of the 2nd respondent, who conferred with the powers impugned notice is given by the Telegraphic Authority, intimating the petitioner to enter the petitioner's land for erection of High Tension Transmission towers and drawing of transmission lines across the petitioner's land and further informed the petitioner is entitled for compensation under the 15 MGR, J W.P.No.10844 of 2019 provisions of Section 16 of the Indian Telegraph Act, 1885. This Court, while dealing with the similar issue in respect of the provisions of Sections 10, 16 and 17 of the Indian Telegraph Act and the provisions of Sections 67, 164, 165 of the Act, 2003 and the Works of Licensees Rules, 2006, in the case of Devisetty Ramaswamy v. Chief Engineer, 400 KV Line, A.P. TRANSCO (APSPDCL), Hyderabad, held that no prior notice or opportunity of hearing to be provided to the owner/occupier of a premises affected by laying of lines or posts and therefore, there is no question of such owner/occupier being put on notice or demanding an opportunity of hearing before the grounding of the scheme. The provisions of Section 17 postulates that right would arise only after laying of lines and posts and upon the failure of authority concerned to act upon a requisition to remove or relocate such lines or posts etc., and further held that non-payment of compensation would not be a ground to stall grounding of transmission lines. The Hon'ble Supreme Court in the case of The Power Grid Corporation of India Limited v. Century Textiles and Industries Limited and others, held that no prior notice by the Telegraph Authority is required before placing and maintain telegraph line posts and if the change of alignment is unfeasible, transmission lines need not be required to be shifted, unless public interest so requires. The affected persons are entitled for compensation only. In view of the uncontroverted averments of the counter of the respondents and the submissions of the counsel for the respondents, the contra contentions of the counsel for the 16 MGR, J W.P.No.10844 of 2019 petitioner are untenable. The counter filed by the respondents 2 and 3 states that the scheme of erection of high tension towers and transmission lines across the petitioner's property was approved by the Government and the scheme was also published in A.P. Gazette dated 10-12-2015 inviting objections to the proposed lines and nobody has submitted any objections including the petitioner in respect of the said work and thereafter the alignment was fixed and total of 85 towers are proposed for the said line and two towers are coming in the petitioner's land (Tower No.22 and 23) in Kagithalapur village, Manubolu Mandal, SPSR Nellore District and total 85 towers are proposed for the work, out of 85 towers, 79 towers are already completed including line works. It is not technically feasible to change the alignment at this stage. Learned standing counsel for the respondents states that the 2nd respondent has already spent more than Rs.48.07 crores for carrying out the works of laying 85 towers and the drawing of transmission lines. In view of the said submission of the counsel, this court found that at this stage, directing the respondents to change the alignment of transmission lines to reduce the further damage to the petitioner's land would not arise, as it is not feasible.
In view of above discussion, the petitioner is not entitled for any relief, and hence, the writ petition is devoid of merit and the same is liable to be dismissed.
17 MGR, J W.P.No.10844 of 2019 Accordingly, the writ petition is dismissed and interim order dated 17-10-2019 is hereby vacated. There shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.
________________ M. GANGA RAO, J Date: 01-10-2020 Ksn