Chattisgarh High Court
M/S Kalyani Ispat Limited vs Union Of India on 23 February, 2024
Neutral Citation
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1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPC No. 4848 of 2023
Order reserved on 06.02.2024
Order delivered on 23.02.2024
M/s Kalyani Ispat Limited, A Company Registered Under The Provisions Of
Companies Act, 2013, Having Its Registered Office At 439, Fourth Floor,
Offizo, Magneto Mall, Ge Road, Labhandih, Raipur, District- Raipur, Through
Its Project Head Mr. Dinesh Kumar Yadav, S/o Kuldeep Singh Yadav, Aged
50 Years, Project Head At Authorized Signatory Of M/s Kalyani Ispat
Limited, R/o SH-11, Garden Groove, Lalpur, Deopuri, Raipur, District :
Raipur, Chhattisgarh.
----Petitioner
Versus
1. Union Of India Through Secretary, Ministry Of Power, Sewa Bhawan, RK
Puram, New Delhi, District : New Delhi, Delhi
2. Power Grid Corporation Of India Limited Through Its Director Having Its
Registered Office At Qutub Institutional Area, Katwaria Sarai, New Delhi,
District : New Delhi, Delhi
3. Power Grid Raipur Pool, Dhamtari, Transmission Limited Through Its Chief
Manager Having Its Site Office At Village Medesara, Tahsil-Dhamdha,
District : Durg, Chhattisgarh
4. State Of Chhattisgarh Through Secretary, Ministry Of Commerce And
Industries, Mantralaya, Mahanadi Bhawan, Atal Nagar, Nawa Raipur, District
: Raipur, Chhattisgarh.
----Respondents
For Petitioner : Shri Rajeev Shrivastava, Senior
Advocate along with Shri Malay
Shrivastava, and Ms. Ritika
Dubey, Advocates for the
petitioner.
For Respondent No.1 : Shri Bhupendra Pandey,
Advocate.
For Respondents No.2 & 3 : Shri Abhishek Sinha, Senior
Advocate with Shri Prasoon
Agrawal and Ms. Khushboo Dua,
Advocates.
For Respondent No.4/State : Shri Shashank Thakur, Dy. A.G.
Hon'ble Shri Justice Rakesh Mohan Pandey
CAV ORDER
Heard.
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1. The petitioner has filed this petition under Article 226 of the
Constitution of India seeking the following reliefs:-
"10.1. That, this Hon'ble Court may kindly be pleased to call for
the entire records of the case.
10.2. That, this Hon'ble Court may kindly be pleased to quash
the order dated 03/10/2023 bearing No. Pa.Chhe-1/ Power Grid/
RPDTL/Durg/ROW/714 passed by respondent No.3.
10.3. That, this Hon'ble Court may kindly be pleased to direct
the respondent No.2 and 3 to restrain from installing the tower of
400 KV, double circuit, Raipur Pool - Dhamtari Transmission
Line in the land of the petitioner.
10.4. Any other relief, which this Hon'ble court deems fit and
proper, may also kindly be granted to the petitioner, in the
interest of justice.
10.5. Cost of the petition may kindly be awarded."
2. The brief facts of the present case are as under:-
(i) The petitioner is a company registered under the provisions of
the Companies Act, 2013 and has the Udyam Akansha/Unit
certificate from the District Trade and Industries Center, Rajnandgaon
for the setup of manufacture of other basic Iron and Steam NEC.
(ii) The petitioner in order to install the Iron Ore Platelet and
Beneficiation, Sponge Iron, Captive Plant, Induction Furnace, Ferro
Alloy, Rolling Mill, Pipe and Tub Mill and Galvanizing Divisions at
Village Kopedih submitted a proposal before respondent No.4 with
an intent to invest Rs.473.21 crores and to provide employment to
455 persons. On 21.01.2022, a memorandum of understanding was
executed between respondent No. 4 and the petitioner.
(iii) Pre-feasibility report for the project was obtained by the
petitioner in which the costing, the execution summary, salient
features of the project along with the estimated cost, basic
requirement of the project and other relevant details of the project
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were laid down.
(iv) On 07.06.2022, the petitioner purchased lands at Village
Kopedih, R.I. Circle-Dedhasura, Tehsil and District Rajnandgaon and
relaxation was given by respondent No.4 from payment of stamp
duty as the petitioner is a new mega project under the Industrial
Policy of the year 2019 to 2024.
(v) On 15.05.2023, the competent authority passed an order
regarding the diversion of some of the lands purchased by the
petitioner. On 21.06.2022, the Forest Department also issued the no
objection certificate in favor of the petitioner to the effect that
adjacent to the land proposed for the project neither there is any
forest land nor any forest area.
(vi) On 11.10.2022, Gram Panchayat Kopedih issued the no-
objection certificate for the installation of the plant. On 10.08.2022,
the Chhattisgarh State Industrial Development Corporation Limited
accorded its permission for the supply of water to the petitioner.
(vii) On 23.02.2023, the Chhattisgarh State Power Transmission
Company Limited communicated to the petitioner about the cost of
installation and construction for providing 132 KV Grid connectivity.
3. Thereafter, the petitioner approached the authorities for environmental
clearance and the proposal is still pending before the Government of India.
The Executive Engineer, Water Resources Department vide order dated
05.04.2023 granted permission for the construction of a pool (small bridge)
at survey Nos. 571/1 and 567/1 having a width of 15 meters. Thereafter, the
petitioner on 23.01.2023 issued a letter to the Gram Panchayat-Kopedih and
Gram Panchayat-Magarlota to the effect that these two villages are being
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adopted by the petitioner and the petitioner will provide all basic
requirements and needs of the children and adults of these two Gram
Panchayats.
4. Respondent No. 3 invited objections and published notice in two daily
newspapers with regard to the installation of proposed towers specifically
mentioning the names of villages. The objections were invited in the daily
newspapers on 27.05.2023 but no objection was received within the
stipulated time. After the expiry of time granted to raise objection(s), the
petitioner raised an objection before respondent No. 3 ventilating its
grievances and the same was rejected vide order dated 03.10.2023 on the
ground that the cost of the project of respondent No. 3 is Rs. 271.69 crores.
Thus, the petitioner has challenged the order dated 03.10.2023 issued by
respondent No. 3 and has further sought a direction to respondents No. 2 &
3 to restrain them from installing the tower of 400 KV, Double Circuit
Transmission Line on its land.
5. Learned counsel for the petitioner would submit that Rule 2(b) and
Rule 13 of the Indian Telegraph Right of Way Rules, 2016 (for short 'Rules,
2016) are relevant and the transmission line can be removed from the land
of the petitioner according to provisions of Rule 13 of the Rules, 2016. He
would further submit that though it is stated that the route was finalized after
due survey, no survey report has been placed on record by respondents No.
2 & 3. He would also submit that the transmission scheme was not published
in the official Gazette of the Government of India as it is an Inter-State
Scheme and the same was also not published in the two local daily
newspapers.
6. Learned Senior Counsel would further submit that respondents No. 2
& 3 have acted in a mala fide manner. He would also submit that the
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installation of the Transmission Tower would affect the human body and may
cause headache, fatigue, anxiety, insomnia, prickling and burning skin,
rashes muscle pain etc. He would contend that the impugned order of
respondent No. 3 and the action of respondents No. 2 & 3 are arbitrary,
illegal and contrary to the law applicable in the facts and circumstances of
the case. He would further contend that no public notice was issued by
respondents No. 2 & 3 regarding the installation of the tower at the middle of
the land of the petitioner. He would also contend that the petitioner has
purchased 100 acres of land for a project and if the transmission tower is
erected in the middle of the land, the entire project of Rs.473.21 crores will
become redundant. He would further argue that the cost of the proposed
project of respondents No. 2 & 3 is Rs.271.69 crores only whereas, the
estimated cost of the project of the petitioner is Rs.473.21 crores. He would
also argue that respondents No. 2 & 3 should not hamper the project of the
petitioner which is of great public importance, generating employment for the
public at large. He would also submit that the action of respondents No. 2 &
3 of depriving to enjoy the fruits of the land of the petitioner is violative of
Article 300A of the Constitution of India.
7. Learned Senior Counsel has placed reliance on the judgments of the
Hon'ble Supreme Court rendered in the matters of T.B. Ibrahim vs.
Regional Transport Authority, Tanjore, reported in (1952) 2 SCC 590,
Radha Krishan Industries vs. State of H.P., reported (2021) 6 SCC 771,
LT. Governor, NCT vs. Ved Prakash, reported in (2006) 5 SCC 228, Noida
Entrepreneurs Assn. Vs. Noida, reported in (2011) 6 SCC 508, Gopal
Krishnaji Ketkar vs. Mohd. Haji Latif and Ors, reported in AIR 1968 SC
1413, Vodafone International Holding BV vs. Union of India and
Another, reported in (2012) 6 SCC 613, Uma Nath Pandey and Others vs.
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State of Uttar Pradesh and Another, reported in (2009) 12 SCC 40.
Reliance has also been placed on the judgment of the High Court of
Himachal Pradesh at Shimla in the matter of Sanjay Mandyal vs. State of
H.P., reported in 2022 SCC OnLine HP 1500.
8. Shri Abhishek Sinha, learned Senior Counsel would submit that
respondent No. 2 is a Company set up by the Government of India and
incorporated under the Companies Act, 1956 which has been reposed with
the responsibility of laying transmission lines. He would further submit that
the statutory functions and duties, as mandated under Sections 38(2) and 40
of the Electricity Act, 2003 are inter alia to undertake the transmission of
electricity through inter-state transmission system (ISTS), to build, maintain
and operate an economical transmission system. He would argue that the
Government of India in the exercise of powers under Section 164 of the
Electricity Act, 2003 has conferred upon and/or authorized POWERGRID to
exercise all the powers vested in and/or possessed by the "Telegraph
Authority" under part III of the Indian Telegraph Act, 1885, vide order dated
24.12.2003. It is further argued that respondent No. 3 is a 100% wholly
owned subsidiary of Power Grid Corporation of India Limited and is a
"Government Company" under Section 2(45) of the Companies Act, 2013.
He would also submit that the Raipur Pool-Dhamtari 400 KV D/C Line which
is the subject matter of the present dispute was accorded prior approval on
30th January 2023 under Section 68 of the Electricity Act, 2003 by Central
Electricity Authority, Ministry of Power, Government of India vide notification
bearing reference No. CEA-Police Station-11-23(20)/1/2018 -PSPA -I
Division/ 53-54. He would also contend that respondent No. 2 is a
"Transmission Licensee" authorized to establish, operate and maintain a
transmission line and a notification was issued by the Government of India
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on 24.12.2003 in this regard. Further, the Ministry of Power, Government of
India, in the exercise of its powers under Section 164 of the Electricity Act,
2003, has conferred upon and authorized respondent No. 3 to exercise all
the powers vested in and/or possessed by the "Telegraph Authority" under
part III of the Indian Telegraph Act, 1885 and in this regard, notification was
issued on 16.11.2023. He would further submit that respondents No. 2 & 3
have not acquired the land but have got right of the user to cause as little
damage as possible and if any damage is caused, the respondents are
bound to pay compensation as per the assessment done by the competent
authority in line with the guidelines issued by the State of Chhattisgarh dated
01.06.2016. He would further argue that in case of any dispute, the petitioner
may move an application before the District Judge under Section 16 of the
Indian Telegraph Act, 1885. He would also argue that there is no
construction over survey Nos. 571/1 & 567/1 therefore the assertion made
by the petitioner that the tower is being erected over his acquired land is
based on conjectures and surmises. He would state that the respondents
have laid the foundation for tower location No. 15/5 on survey No.592/1 and
the said land has not been diverted for industrial use. He would further argue
that the petitioner has purchased around 40 hectares of land but has only
got the diversion approval for 30.541 hectares and before the diversion of
the land, no industry can be set up. He would further state that the drawl
requirement of electricity at Dhamtari in the 2024-25 time frame is about
500-550 MW. The short circuit strength of the Dhamtari sub-station is very
low and there are wide variations in voltage at the sub-station, therefore, it
was proposed to interconnect the sub-station with the Raipur Pool sub-
station which is located within 80-90 km. It is also stated that the project of
respondents No. 2 & 3 immensely benefits and boosts the agriculture,
industry, commercial establishment and household consumers to cater for
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their need for power in the State of Chhattisgarh, particularly in District
Dhamtari. He would also submit that the welfare of the people is the
supreme law. He would further contend that after studying all the conditions,
the present route alignment was selected as the most suitable route based
on techno-economic feasibility. The present route selected avoids all
Reserve and Revenue Forests in Durg, Rajnandgaon and Dhamtari Division
of Forest in Chhattisgarh State to minimize impact on the environment. He
would further submit that the present route requires the least number of
trees to be felled. He would argue that the petitioner has got no indefeasible
right, whereas, the respondent has got definite statutory rights and duties in
terms of the Electricity Act, 2003. He would submit that the general public
was informed through publication and notification at various places including
Newspapers, Gazette and Aam Suchna about the route of the transmission
line but no objection was raised by the petitioner. He would further submit
that the length of the 400 KV Double Circuit Quad Raipur-Pool, Dhamtari line
associated with the Western Region Expansion Scheme is 87.6 km and it is
scheduled to be completed by September 2024. He would submit that tower
location No. 15/5 of 400 KV is only located in survey No. 592/1 at village
Kopedih, Tehsil & District Rajnandgaon where the foundation has already
been laid. He would submit that the foundation has been laid at eight other
locations (four preceding and four succeeding Tower No. 15/5) and the
determination of the precise location of the tower is a result of a complex
technical process and even a minute change in location of one tower may
cause cascading effect leading to increase in overall length of the
transmission line by several kilometres causing huge loss to public
exchequer. He would further submit that there is no construction over survey
Nos. 571/1 and 567/1. Survey No. 592/1 measuring 1.0440 hectares on
which the respondents have laid the foundation of the Tower is still
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agricultural land and the land of the petitioner is not going to be affected by
the erection of the Tower. He would further argue that the petitioner has not
approached the Court with clean hands as no layout of the project of the
petitioner has been sanctioned, though, it is stated that the layout of the
project has been sanctioned by the authority. He would contend that the
petitioner has filed the instant petition on its own whims and fancies even
after being fully aware of the existing circumstances and keeping mum and
silent at the time of raising the objections. He would submit that a request
was made by the respondents before the Naib Tehsildar, Rajnandgaon on
26.12.2023 with regard to the location of transmission Tower No. 15/5. A
report has been provided to the respondents vide letter dated 12.01.2024
where it is stated that one leg of the transmission tower is located at survey
No. 577, two legs at survey No. 591 and one leg at survey No. 483/3. He
would submit that the survey Nos. 591 & 483/3 belonged to the petitioner
whereas, survey No. 577 is government land and the dimensions of each leg
of the transmission tower are only 0.5 x 0.5 meters. He would submit that the
respondents before finalizing the present route examined the statutory
mandate, which is stated below:-
(i) An overhead line shall not cross over an existing building as far as
possible;
(ii) For high voltage direct current systems of 400 KV Vertical
clearance of 7.9 meters & Horizontal clearance of 6.2 meters on the
basis of maximum deflection due to wind pressure has to be
maintained;
(iii) No tower footing or structure of an overhead line of voltage 33 KV
or above or high voltage direct current, shall be closer than twenty-five
meters from the edge of the right of way of a Petroleum or Natural
Gas pipeline;
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(iv) The transmission line has to be as straight as possible to avoid
transmission losses;
(v) Minimal Forest Area, Historical monuments, defence area, tribal
area;
(vi) Populated area has to be avoided; and
(vii) Minimal power line crossing, railway crossing, National Highway &
State Highway Crossing."
He would lastly submit that except MOU, there is no development with
regard to the establishment of the industry, there is no construction and the
project of the petitioner is not going to be affected by the installation of the
Tower thus, the petition is bereft of material facts and grounds and the same
is liable to be dismissed. He would submit that the petitioner is not a local
authority according to the provisions of Section 3(6) & 7 of the Act, 1885,
therefore, it has no right to challenge the power of respondent No. 3
conferred upon it according to provisions of Section 164 of the Electricity
Act, 2003 and Section 10 of the Telegraph Act, 1885.
9. Reliance has been placed on the judgments of the Hon'ble Supreme
Court rendered in the matters of Ashok Lanka vs. Rishi Dikshit and
Others, reported in (2006) 9 SCC 90 and Ramgir Uttamgir Goswami vs.
State of Gujarat and Ors. reported in MANU/SC/0405/1988. Reliance has
also been placed on the judgment of the High Court of Madhya Pradesh
rendered in the matter of Chhindwara Plus Developers Limited vs. Union
of India and Ors. reported in MANU/MP/0765/2017 and the said judgment
was affirmed in W.A. No. 611 of 2017 which was challenged before the
Hon'ble Supreme Court in Special Leave to Appeal (C) No. 30029 of 2017
which was dismissed and the orders of the learned Single Bench and the
Division Bench were affirmed. Further reliance is placed on the judgment of
the High Court of Madhya Pradesh (Indore Bench) in the matter of Rajak
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and Ors. vs. National Thermal Power Corporation Ltd., Indore and Ors.,
reported in MANU/MP/0030/1988 and Vijay Agrawal vs. Power Grid
Corporation of India Ltd. And Ors. reported in MANU/MP/0842/2011.
Reliance is also placed on the judgments of the Orissa High Court rendered
in the matter of Bahamali Nanda vs. Orissa Power Transmission
Corporation Ltd. and Ors. reported in MANU/OR/0643/2018 and
Padmanava Educational Trust vs. Orissa Power Transmission
Corporation Limited and Ors. reported in MANU/OR/0926/2014. Reliance
has been placed on the judgment of the High Court of Gujarat at
Ahmedabad in the case of Dinesh Manganbhai Ughreja and Ors. vs.
State of Gujarat and Ors. reported in MANU/GJ/2194/2019. Further
reliance has been placed on the judgment of the High Court of Punjab and
Haryana at Chandigarh in the matter of Power Grid Corporation of India
vs. Rajbir Singh and Ors. reported in MANU/PH/2997/2009 and Om
Prakash vs. Amit Kumar and Ors. reported in MANU/PH/3952/2014 and
on the judgment passed by the High Court of Jharkhand at Ranchi in the
case of Ajay Munjal Memorial Trust and Ors. vs. Power Grid
Corporation of India Ltd. and Ors. in MANU/JH/0150/2007.
10. I have heard learned counsel appearing for the respective parties,
considered their rival submissions made herein above and carefully perused
the material placed on record.
11. Some provisions of the Electricity Act, 2003 and the Indian Telegraph
Act, 1885 would be relevant for the disposal of the present petition. Those
are reproduced herein below for reference:-
(i) Section 164 of the Electricity Act, 2003 (for short 'the Act, 2003') deals
with the exercise of powers of Telegraph Authority in certain cases. Section
164 reads as under:-
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"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."
(ii) The Indian Telegraph Act, 1885 came into force on 22.07.1885. The
main object of the bill was to give power to the Government and to any
company or person licensed under Section 4 of the Indian Telegraph Act,
1885 (for short 'the Act, 1885') and specially empowered in this behalf, to
place telegraph lines under or over property belonging whether to private
persons or to public bodies.
(iii) Section 3 deals with definitions, Sections 3(6) & (7) read as under:-
"3. Definitions.--In this Act, unless there is something repugnant in the
subject or context,--
(6) "telegraph authority" means the Director General of [Posts and
Telegraphs], and includes any officer empowered by him to perform all or
any of the functions of the telegraph authority under this Act;
(7) "local authority" means any municipal committee, district board, body
of port commissioners or other authority legally entitled to, or entrusted by
the Central or any State Government] with, the control or management of
any municipal or local fund."
(iv) Section 10 of the Act, 1885 deals with the power of telegraph authority
to place and maintain telegraph lines and posts. Section 10 of the Act,
1885 reads as under:-
"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 exorcise the powers conferred by this section except for the purposes of a telegraph established or Neutral Citation 2024:CGHC:6360 13 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."
(v) Section 16 deals with the exercise of powers conferred by Section 10, and disputes as to compensation, in case of property other than that of a local authority. Section 16 of the Act, 1885 is reproduced herein below:-
"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 their 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 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, o r as to the proportions in which the persons interested arc 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 Neutral Citation 2024:CGHC:6360 14 recover by suit the whole or any part of any compensation paid by the telegraph authority, from the person who has received the same."
12. The facts set out by the petitioner in the petition are that respondents No. 2 and 3 have started construction work for installing the Tower of 400 KV, Double Circuit, Raipur Pool - Dhamtari Transmission Line on the land of the petitioner. From a perusal of the pleadings made in the writ petition, particularly in paragraph 8.3, it is stated that the petitioner in order to install an industry submitted a proposal before respondent No. 4 with an investment of Rs.473.21 crores and a memorandum of understanding was executed on 21.01.2022. In paragraph 8.6, it is pleaded that the petitioner has started purchasing land from the residents of Village Kopedih, Tehsil and District Rajnandgaon, who are interested in selling their lands to the petitioner. In paragraph 8.7, it is pleaded that the petitioner has moved an application before the Revenue Authority for mutation and diversion of agricultural land, In paragraph 8.8 it is stated that the petitioner has submitted a proposed map for the construction of the plant and an application for sanction of the layout of the plant which has been sanctioned. The petitioner in paragraphs 8.9, 8.10 and 8.11 has stated that the Forest Department, Gram Panchayat Kopedih and the Chhattisgarh State Industrial Development Corporation Limited have given their no objection. In paragraph 8.12, the petitioner has stated that an application has been moved before the Chhattisgarh State Power Transmission Company Limited for the construction of Captive Power Plant of 75 Mega Watt capacity on 23.02.2023 and a sum of Rs.3,99,30,062/- has already been deposited with Chhattisgarh Power Transmission Company Limited. In paragraph 8.14, the petitioner has stated that an application has been moved before the Chhattisgarh Environment Conservation Board for obtaining permission for Neutral Citation 2024:CGHC:6360 15 installation of the project and the same has been forwarded to the Ministry of Environment, Government of India vide letter dated 01.02.2023.
13. From a perusal of Annexure - P/15, it is apparent that the proposal of the petitioner for environmental clearance is pending consideration before the Ministry of Environment, Forest and Climate Change, Government of India. From the perusal of the provisions of Section 164 of the Act, 2003, it is quite vivid that this provision confers power on the appropriate government to pass an order in writing for the placing of electric lines or electrical poles for the transmission of electricity or for the purpose of telephonic or telegraphic communications.
14. Section 10 of the Act, 1885 gives power to the telegraph authority to place and maintain telegraph lines. According to Section 10(b) of the Act, 1885, the Government shall not acquire any right other than that of the user only in the property over which the telegraph authority places any telegraph line or post. Section 10(c) of the Act, 1885 specifically says that the telegraph authority shall not exercise powers in respect of any property vested in or under the control or management of any local authority, without the permission of the authority. Section 10(d) says in the exercise of powers, telegraph authority shall do as little damage as possible and pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers. According to Section 16(2) of the Act, 1885 if any person resists the exercise of power mentioned in Section 10 of the Act, 1885, or having control over the property, does not give all facilities for their being exercised will be deemed that he has committed an offence under Section 188 of IPC and for redressal of grievance in case of any dispute, application can be moved before the District Judge.
Neutral Citation 2024:CGHC:6360 16
15. Respondent No. 3 is a 100% owned subsidiary of Power Grid Corporation of India Limited and a certificate of incorporation was issued on 24.05.2023. The Ministry of Power, Government of India sanctioned the Raipur-Pool, Dhamtari, 400 KV DC Line on 30.01.2023 under Section 68 of Act, 2003. Respondent No. 3 was granted a transmission license in this regard on 12.10.2023. The Government of India in the exercise of its power under Section 164 of Act, 2003 has conferred upon and/or authorized POWERGRID to exercise all the power vested in and/or possessed by the "Telegraph Authority" and notification was issued in this regard on 24.12.2003. Respondent No. 3 was authorized to exercise all the powers vested in by telegraph authority on 16.11.2023. The transmission tower is proposed on survey Nos. 571/1 & 567/1 and the foundation for tower location No. 15/5 has already been laid down. Prior to starting the work, respondent No. 3 invited objections by publishing the notice in four newspapers (two in Hindi and two in English) i.e., in Navbharat (Hindi), Hari Bhumi (Hindi), The Times of India (English) and The Hitavada (English). The public notice inviting objections was published on 27.05.2023 and the same was published in the Gazette of the Government of India on 24.06.2023. From the perusal of Annexure-R-2/11, it is evident that no objections were received till 23.08.2023.
16. The Revenue Inspector has given a report with regard to the location of transmission tower No.15/5 and categorically stated that one leg of the tower is located at survey No. 577 which is government land, two legs at survey No. 591 and one leg at survey No. 483/3 and the dimension of each leg of the transmission tower is only 0.5 x 0.5 meters. With regard to justification for the route, a survey was conducted and out of three alternative routes keeping in mind the statutory mandate, the present route Neutral Citation 2024:CGHC:6360 17 was finalized and the Central Government under Section 164 of the Act, 2003 after considering the rationale, has accorded approval vide notification dated 16.11.2023. Respondent No. 3 has selected the route avoiding the release of the way of petroleum or natural gas pipelines to keep the transmission line straight to avoid transmission losses, minimal forest area, to secure historical monuments and also to avoid populated areas in the National Highways and State Highways crossing. With regard to the opportunity of hearing as argued by Shri Rajeev Shrivastava, learned Senior Counsel, objections were invited in four daily newspapers and notices were published on 27.05.2023, but no objection was raised by the petitioner therefore it cannot be held that no opportunity was afforded to the general public and prior to that, notification was issued by the Central Government on 16.11.2023. The petitioner has not challenged the notification dated 16.11.2023 though it was filed along with the additional return on behalf of respondents No. 2 & 3 on 23.01.2024.
17. Now coming to the judgments relied on by learned counsel for the petitioner, in the matter of T.B. Ibrahim (supra), the issue was with regard to the alteration of bus stands. The appellant of that case was the lessee of Tanjore Municipality which was questioned by a third party in a civil litigation and the title of the Municipality was negatived. The Hon'ble Supreme Court dismissed the appeal. The facts of the aforesaid case are different from the facts of the present case.
In the matter of Radha Krishan (supra), the issue deals with the delegation of authority under the CGST Act, but in the present case, the power has not been delegated rather the power has been conferred upon respondent No. 3 to erect the transmission line and poll, therefore, the case cited by the learned counsel for the petitioner is of no help.
Neutral Citation 2024:CGHC:6360 18 The matter of Sanjay Mandyal (supra), says that an action must be taken, done or performed in the manner prescribed in statute or not at all. In the present case, respondent No. 3 has exercised the power conferred under Section 164 of the Act, 2003 and Section 10 of the Act, 1885. The action of respondent No. 3 is not in breach of any law or orders/notifications issued by the Central Government.
In the matter of Vodafone International Holding BV (supra), the Hon'ble Supreme Court held that the subsidiary company is not a puppet of the holding company and has a distinct legal status from the parent company. In the present case, respondent No. 3 has been notified as a subsidiary company by a notification issued by the Central Government and the petitioner has not challenged the said notification. Further, respondent No. 3 has been notified as a subsidiary company according to provisions of law, therefore, the submission made by learned counsel for the petitioner is misconceived.
In the matter of Uma Nath Pandey and Others (supra), the Hon'ble Supreme Court dealt with the principles of natural justice. In the present petition though some part of the land of the petitioner is being used for the erection of the transmission tower, at the same time, public notice was issued in four local newspapers (two in Hindi and two in English) on 27.05.2023 and objections were also invited, therefore it cannot be held that no opportunity of hearing was afforded to the petitioner.
18. Now coming to the judgments relied on by learned counsel for respondents No. 2 & 3. In the matter of Ajay Munjal Memorial Trust and Ors., (supra), it is held that according to provisions of the Electricity Act, 2003, the Rules, 2006 and Section 10 of the Act, 1885 no prior sanction of licensee needed for the erection of the transmission line. It is further held Neutral Citation 2024:CGHC:6360 19 that power transmission is a power project of National importance, therefore no notice is required before erecting polls or constructing any tower. The relevant paragraphs 13 & 14 read as under:-
"13. Mr. Prasad also submitted that if a little diversion is made, it will cause least damage to the petitioners' interest. He further submitted that there has been some diversion in the line.
14. Such prayer also cannot be accepted. According to the respondents, it is not technically feasible to divert the line as suggested by the petitioners, as alignment of transmission line is made after detailed survey as per the topography of land with a view to cause least disturbance to the existing villages. Moreover, in a 418 kilometer transmission line, there has to be some diversion for route-alignment. If such prayer of petitioners is accepted then it will create a bad precedent and others may also ask for diversion of line. The respondents cannot be directed to erect the transmission line in a zigzag manner. The interests of individuals are to give way to larger interest."
In the matter of Padmanava Educational Trust (supra), it is held that in case power has been exercised under Section 164 of the Electricity Act, the permission of the Divisional Manager is not necessary. Paragraph 9 reads as under:-
"9. Similar view has been taken by the Allahabad High Court in Power Grid Corporation of India Ltd. v. Ajay Kumar Gupta and Others MANU/UP/3773/2011 : 2012 (90) ALR 743 : AIR 2012 All 62, wherein the Division Bench of the Allahabad High Court has held that as in that case power has been exercised under section 164 of the Electricity Act, permission of the Divisional Manager is therefore not necessary."
In the matter of Rajak (supra), the Hon'ble Supreme Court held that there can be no valid objection by the land owners to the implementation of the sanctioned scheme either on the principles of natural justice or on the ground of unauthorized user of their land in respect of which compensation has been provided for under proviso (d) to Section 10 of the Indian Telegraph Act. Paragraph 15 is reproduced herein below:-
"15. In view of the power vested in the Generating Company NTPC under Section 42 of the Act read with Part III of the Indian Telegraph Act, there can be no valid objection by the petitioners to the implementation of the sanctioned scheme either on the principles or Neutral Citation 2024:CGHC:6360 20 natural justice or on the ground of unauthorised user of petitioners' land in respect of which compensation has been provided for under proviso (d) to Section 10 of the Indian Telegraph Act."
In the matter of Vijay Agrawal (supra), where a similar issue was involved, the claim of the petitioner was dismissed holding that neither the acquisition of land is necessary nor consent of the owner is required to be taken for the erection of the transmission tower. It is further held that Section 10 of the Act, 1885 and the Act, 2003 recognize the absolute power of the licensee to proceed with the placing of electric supply lines or electric polls for transmission of electricity on or over the private land subject to the right of the owner to claim compensation.
19. Further the petitioner is not a local authority according to provisions of Section 3(7) of the Act, 1882 therefore it has no authority of law to challenge the lawful action of respondents No. 2 and 3.
20. Further, the project is in the larger public interest, therefore, the grounds raised by learned counsel for the petitioner are not tenable.
21. Taking into consideration the facts stated above and the law laid down by the Hon'ble Supreme Court and various High Courts in this regard, in the opinion of this Court, no case is made out for interference.
22. Consequently, this petition fails and is hereby dismissed. The interim order granted earlier is hereby vacated. No costs.
Sd/-
(Rakesh Mohan Pandey) Judge Nimmi