Madhya Pradesh High Court
Rajak And Ors. vs National Thermal Power Corporation ... on 14 December, 1987
Equivalent citations: AIR1988MP172, AIR 1988 MADHYA PRADESH 172
JUDGMENT R.K. Varma, J.
1. This is a petition under Article 226 of the Constitution of India, filed by the petitioners, residents of village Banjari Tahsil and District Indore, who are Bhumiswamis in respect of agricultural lands across which the respondent No. 1 National Thermal Power Corporation Ltd., (for short NTPC), a Generaling-Company, is said to be laying over-head lines for transmission of electrical energy and putting up towers for support of those lines. By this petition, the petitioners seek a writ of mandamus restraining the respondents from encroaching upon the fields of the petitioners and from putting up any erection or laying any overhead lines thereon.
2. According to the averments in the petition, the case of the petitioners is that the petitioners intend to establish a housing colony in the aforesaid land and formalities regarding establishment of a colony are almost complete. The respondent NTPC has no authority to lay down overhead lines or erect towers for the same in the fields of the petitionerswithout following the due process of law and that the respondent has not followed due process of law. The petitioners have not been given any notice of the intention of the respondent NTPC to take overhead lines through their fields or of erecting the towers for support of such overhead lines in the fields of the petitioners. The respondent NTPC not being a licensee has no authority to lay overhead lines for the supply of electricity or erect towers therefor in the fields of the petitioners. The action of the respondent NTPC amounts to unauthorised acquisition of land of the petitioners in violation of Article 300A of the Constitution of India. The petitioners rights are being affected without giving a hearing and as such, the action is vitiated for non-compliance of the principles of natural justice. The decision to take the overhead lines over the petitioner's property is eitherwithout application of mind or reached mala fide in order to avoid the land being taken from the other fields. The action is arbitrary and violative of Article 14 of the Constitution of India.
3. It is alleged that on 27-6-1987, the petitioners wrote a letter (Annexure-C) to the respondent NTPC and its contractor-respondent No. 2 High Tension Power Construction Company, which is carrying out' the work of laying 400 KV line and is planning on behalf of respondent No. 1 to erect towers and to lay overhead lines on the lands belonging to the petitioners and earth work for towers is about to be started. No response was made to the petitioners' letter by the Respondents who seem bent upon to erect towers in the petitioners' fields. In the circumstances, the petitioners have prayed for issuance of an appropriate writ restraining the Respondents from laying overhead transmission lines and erecting towers therefore on the petitioners' lands in question.
4. The respondents in their return have denied all the adverse allegations contained in the petition. As is ascertainable from the Return, respondent No. 1 NTPC is a Generating Company formed under Section 15A of the Electricity (Supply) Act, 1948 (hereinafter referred to as the 'Act1). The respondent No. 1 is implementing the sanctioned scheme, prepared and sanctioned, under Section 28 of the Act. The Government of India, Ministry of Energy, Department of Power have by their letter dt. 17-6-1982 (Annexure-R-I) approved the capital investment in the scheme for setting up of the first phase (1260MW) of the Vindhyachal Super Thermal Power Station in Madhya Pradesh along with associated transmission lines estimated to cost Rs. 911.57 Crores and 198.85 Crores respectively. The transmission line under the Scheme is from Vindhyachal to Baroda (Asoj) via Indore. The transmission line has been divided into several stages the last stage being from Indore to Baroda (Asoj). The Central Electricity Authority (Department of Power, Government of India) (For short, 'the Authority') by their letter dt. 4-10-1985 (Annexure R-II) has accorded their concurrence to the Scheme under Section 31 of the Act. The Generating Company NTPC has all the powers under Section 42 of the Act, which the Telegraph Authority possesses under Part III of the Indian Telegraph Act, 1885 for carrying out the above scheme for the purposes of placing of transmission line and apparatus. The Generating Company NTPC is not required to take a licence under the Indian Electricity Act, 1910 as clearly provided under Sub-s.(1) of Section 26A of the Act. The Generating Company NTPC has powers under Section 42 of the Act read with Section 10 of the Indian Telegraph Act, 1885 to place overhead high tension transmission wire upon any immovable property by erecting towers in support of such wire. The petitioners shall have bhumi-swamirights, if any over the lands which come under the towers and shall continue to have possession thereof. The petitioners shall be entitled to receive compensation for any damage in respect of their property, incidental to laying of transmission lines under Section 10 proviso (d) of the Indian Telegraph Act and in case of dispute arising as to compensation the claim of the petitioners shall lie before the District Judge having jurisdiction as contemplated under Section 16 of the Act.
5. On the averments made in the petition and the return of the respondents, it transpires that the respondent Generating Company, the NTPC is intending to erect towers and lay transmission lines over certain lands in respect of which, the petitioners claim to be owners, in accordance with the provisions of the Act and the Indian Telegraph Act, 1885. The scheme which is being implemented is a scheme under Section 28 of the Act under which the Generating Company for efficient performance of its duties is required to prepare one or more scheme relating to the establishment or acquisition of Generating Stations, tie lines, service stations or transmission lines. The Generating Company which has prepared a scheme may sanction such scheme either generally on in respect of any part of the area specified in the scheme provided that where the scheme is estimated to involve a capital expenditure exceeding 5 crores of rupees, it shall not be sanctioned by the Generating Company except with the previous concurrence of the authority under Section 29 of the Act. Every scheme sanctioned under Section 28 of the Act is required to be published in the Official Gazette and in such local newspaper as the Generating Company may consider necessary.
6. In the instant case, a capital expenditure exceeding 5 crores being involved in the scheme, it was submitted to the Authority for its concurrence and the Authority accorded its concurrence by letter (Annexure R-II) aforesaid.
7. During the pendency of this petition, a notification dt. 7-9-1987 of the scheme under Section 28(3) of the Act has been published in the Gazette of India dt. 3-10-1987, copy whereof has been filed by the respondents as Annexure R-IV. This notification also makes a mention about the concurrence of the Authority under Section 31 read with Section 29(1) of the Act. After detailing salient features of the sanctioned scheme the notification concludes by mentioning that the NTPC shall exercise all the powers vested in a Generating Company under the said Act for the purposes of aforesaid sanctioned schemes and that NTPC while undertaking and executing sanctioned schemes shall have all the powers for placing of wires and other appliances for transmission and distribution of electricity in terms of Section 422 - of the Act of the Generating company in the area, which the Telegraph Authority possesses under Part HI of the Indian Telegraph Act, 1885, in respect of a telegraph established or maintained, notwithstanding the provisions of Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910.
8. The only contention raised by the learned counsel for the petitioners is by reference to Section 42 of the Act which, for the sake of appreciating the contention of the learned counsel, is reproduced here-under : --
"42. Powers to Board for placing, wires, poles etc. --
(1) Notwithstanding anything contained in Sections 12 to 16 and 18 and 19 of the Indian Electricity Act, 1910 (9 of 1910), but without prejudice to the requirements of Section 17 of the Act where provision in such behalf is made in a sanctioned scheme, the Board shall have for the placing of any wires, poles, wall-brackets, stays, apparatus and appliances for the transmission of telegraphic or telephonic communications necessary for the proper coordination of the works of the Board, all the powers which the telegraph authority possesses under Part III of the Indian Telegraph Act, 1885 (13 of 1885) with regard to a telegraph established or maintained by the Government or to be so established or maintained :
Provided that where a sanctioned scheme does not make such provision as aforesaid, all the provisions of Sections 12 to 19 of the first mentioned Act shall apply to the works of the Board.
(2) A Generating Company, may, for the placing of wires, poles, wall brackets, stays, apparatus and appliances for the transmission of electricity, or for the transmission of telegraphic or telephonic communications necessary for the proper co-ordination of the works of the Generating Company, exercise all or any of the powers which the Board may exercise under Sub-s.(1) and subject to the condition referred to therein."
9. It is the contention of the learned counsel for the petitioners that the non obstante clause excluding the applicability of Sections 12 to 16 and 18 and 19 of the Indian Electricity Act, 1910 where provision in such behalf is made in the scheme, has been introduced in the sanctioned scheme for the first time in the published notification dt. 7-9-1987 (Annexure R-IV) and the same was not there in the scheme originally prepared and sanctioned under Section 28 of the Act nor was it present in the scheme as concurred in by the Authority under Section 31 of the Act, as is evident from Annexures R-I and R-II. Consequently, it is a case of alteration of the scheme under Section 32 of the Act, under which the Generating Company has power to alter a scheme by a supplementary scheme prepared in the manner specified in Section 31 of the Act. Section 31 of the Act envisages concurrence by the Authority in the scheme on a consideration of the matters referred to in Section 30 of the Act. The argument of the learned counsel, therefore, is that because of the inclusion of the non obstante clause in notification (Annexure R-IV) whereby Sections 12 to 16 and 18 and 19 of the Indian Electricity Act, 1910 have been excluded from operation where provision in such behalf is made in the scheme, the scheme has been altered without following the provisions of Sections 32,31 and 30 of the Act and as such, the notified sanctioned scheme (Annexure R-IV) is nota legally valid scheme and cannot lawfully be implemented.
10. The learned counsel appearing on behalf of the respondents has submitted that the addition of the aforesaid non obstante clause to the sanctioned scheme before publishing the same under Section 28(3) of the Act in the Gazette Notification (Annexure R-IV) is an alteration of the scheme, minor in character, for which it was not necessary to prepare a supplementary scheme under Section 32 of the Act. In order to appreciate the rival contentions of the learned counsel for the parties, it would be useful to reproduce here the said provision ; --
"32. Power to alter or extend schemes. --The Board or, as the case may be, the Generating Company may, from time to time, alter or extend a scheme by a supplementary scheme prepared in the manner specified in Section 31:
Provided that any alterations or extensions of a scheme which are, in the opinion of the Board or as the case may be, the Generating Company, minor in character may be made without preparing a supplementary scheme :
Provided further that where any alteration or extension of the nature referred to in the first proviso is made in respect of a scheme concurred in by the Authority, details of such alteration or extension shall be intimated to the Authority as soon as may be after such alteration of extension is made."
x x x x
11. It has been submitted on behalf of the respondents that for obtaining concurrence of the Authority to a scheme or a supplementary scheme sanctioned by the Generating Company, the matters to be considered by the Authority are contained in Sec. 30 of the Act and a perusal of the provisions of Section 30 would make it clear that none of the matters contained in Section 30 of the Act can have any bearing on the introduction of non obstante clause aforesaid in the published sanctioned scheme (Annexure R IV). The provisions of Section 30 providing for matters to be considered by the Authority before concurring in any scheme submitted to it under Sub-section (1) of Section 29 of the Act are reproduced hereunder for the sake of reference. --
"30. Matters to be considered by the Authority. - (The Authority shall, before concurring in any scheme submitted to it under Sub-section (1) of Section 29, have particular regard to, whether or not in its opinion --)
(a) any river works proposed will prejudice the prospects for the best ultimate development of the river or its tributaries for power-generation, consistent with the requirements of irrigation, navigation and flood-control, and for this purpose the Authority shall satisfy itself, after consultation with the State Government the Central Government, or such other agencies as it may deem appropriate, that an adequate study has been made of the optimum location of dams and other river-works;
(b) the proposed scheme will prejudice the power combination of hydro-electric and thermo-electric power necessary to secure the greatest possible economic output of electric power;
(c) the proposed main transmission lines will be reasonably suitable for regional requirements;
(d) the scheme provides reasonable allowances for expenditure on capital and revenue account;
(e) the estimatesof prospective supplies of electricity and revenue therefrom contained in the scheme are reasonable;
(f) in the case of a scheme in respect of thermal power generation, the location of the generating station is best suited to the region, taking into account the optimum utilisation of fuel resources, the distance of load centre, transportation facilities, water availability and environmental considerations;
(g) the scheme conforms to any other technical, economic or other criteria laid down by the Authority in accordance with the national power policy evolved by it in pursuance of the provisions contained in Clause (i) of Sub-section (1) of Section 3.
x x x x x
12. Having heard the learned counsel for the parties and having considered the provisions referred to hereinabove, we are of the opinion that the alteration in respect of the sanctioned scheme which has been concurred in by the Authority, by way of introducing the non obstante clause therein. as published, in the notification (Annexure R-IV), is minor in character, which could be made without preparing a supplementary scheme, as is contemplated in the first proviso to Section 32 of the Act, as reproduced hereinabove. In our view, therefore, the published sanctioned scheme as per notification (Annexure R-IV) is valid and operative and there can be no legal bar to its implementation. The contention of the learned counsel for the petitioners raising objection to the validity of the sanctioned scheme as published in the notification (Annexure R-IV) cannot be upheld and is hereby rejected.
13. Learned counsel for the petitioners has cited a decision in the Orissa State Electricity Board v. Pyari Mohan Patnaik, AIR 1978 Orissa 190 on the question of illegal and unauthorised placing of transmission lines, but that case being distinguishable on facts, can have no application to the facts and circumstances of the instant case. In the case cited, it was observed thus : --
"The proviso to Section 42 specifically states that where a sanctioned scheme does not make any provision as provided in the first paragraph to that section, all the provisions of Sections 12 to 19 of the I. E. Act shall apply to the works of the Board. From that provision it is absolutely clear that so long provision for placing, maintaining or taking any wires, poles and appliances for the transmission and distribution of electricity, as mentioned in para 1 of Section 42, is not made in that behalf, the powers under part III of the I. E. Act will not be available and the provisions of Sections 12 to 19 of the I. E. Act shall apply to the works of the Board. Admittedly, the complained-of electric transmission line over the suit land belonging to the plaintiffs was not in accordance with any sanctioned plan. In the copy of the memorandum attached to the copy of the resolution, it is admitted that the complained-of alteration was done by the Superintending Engineer, Electrical Circle, X Bhubneswar and the Board had not accorded any sanctiorj for the said alteration. So the protection under Section 42 of the E.S. Act was not available to the defendants-appellants. There is nothing in Section 42 of the E.S. Act or in any other relevant law by which it can be said that by the said ex post facto sanction the execution of the said work done in 1968-69 was retrospectively legalised and the said work would, therefore, be considered as if it was done under a sanctioned scheme. That being so, as per the proviso to Section 42, the provisions of Sections 12 to 19 of the I.E. Act would apply to the complained-of transmission line. So, the Board was not at all authorised to take the said transmission line on and over the plaintiffs' suit land, especially in view of their admitted objection and stiff opposition to that effect, without following the relevant provisions of Sections 12 to 19 of the I.E. Act."
14. In the instant case, execution of the work of placing overhead transmission line and the erection of towers therefor is being carried out in accordance with a duly sanctioned scheme of the Generating Company NTPC which has all the powers for placing such wires and other appliances for transmission of electricity in terms of Section 42 of the Act which the Telegraph Authority possesses under Part III of the Indian Telegraph Act, 1885 in respect of a telegraph established or maintained notwithstanding the provisions of Sections 12 to 16,18 and 19 of the Indian Electricity Act, 1910, as per notification of the scheme published under Section 28(3) of the Act (Annexure R-IV).
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 oE 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.
16. In the result, this petition fails and is hereby dismissed There shall, however, be no order as to costs of this petition. The security-deposit, if any, be refunded to the petitioners after due verification.