Madras High Court
D.Rajendran vs Tamil Nadu Electricity Board on 31 July, 2018
Author: K.K.Sasidharan
Bench: K.K.Sasidharan, R.Subramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31.07.2018
CORAM:
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
AND
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
W.A.No.1294 of 2017
and
C.M.P.Nos.18001 of 2017 and 10041 of 2018
1.D.Rajendran
2.D.Srinivasan
3.D.Vinukula
4.D.Raghu
5.D.Amarendran
6.D.Rosammal
... Appellants
versus
1.Tamil Nadu Electricity Board,
Rep. by its Chairman,
Head Office,
Anna Salai, Chennai 600 002.
2.The Superintending Engineer,
Public Construction Division II,
Thiru. Vi. Ka. Industrial Estate,
Guindy, Chennai 600 002.
... Respondents
PRAYER: Appeal filed against the order passed by this Court dated 29.11.2013 made in W.P.No.16799 of 2013.
For Appellants : Mr.S.Mahimai Raj
For Respondents : Mr.P.H.Aravind Pandian
Additional Advocate General
Assisted by Mr.M.Vijayamehanath
for Mr.Abdul Saleem
J U D G M E N T
(Order of the Court made by R.SUBRAMANIAN,J.) The challenge in this intra-Court appeal is to the order of the learned Single Judge dated 29.11.2013 made in W.P.No.16799 of 2013, in and by which, the learned Single Judge dismissed the Writ Petition filed by the appellants seeking issuance of a Writ of mandamus restraining the respondents and their men agents or any person claiming rights under them from erecting or putting up any poles or towers for passing or transmitting any electricity cables or wires through the petitioners' land measuring about 39 cents situated in S.No.179/3B at Pandeswaram Village, Saidapet Taluk, Thiruvallur District.
2. The appellants had approached this Court under Article 226 of the Constitution of India seeking a negative mandamus as aforesaid claiming that the respondents are attempting to erect a tower in order to draw lines for transmitting high tension electricity in the land belonging to them. Claiming that the extent of the land is only 39 cents and if a tower with four arms is to be erected in the said land, the entire land will be rendered useless and unfit for cultivation. The appellants had sought for the said mandamus.
3. The claim of the appellants was resisted by the respondents contending that under the provisions of the Telegraph Act r/w Electricity Act the respondents have power to erect poles/ towers for transmitting electricity. The owners of the land could at best claim compensation and they cannot prevent the Authorities from discharging their statutory functions by seeking a negative mandamus.
4. The learned Single Judge after elaborate consideration of the entire law on the subject had concluded that such a mandamus cannot be issued in view of the specific provisions of the Telegraph Act and the Electricity Act. The learned Single Judge also took note of Section 10 of the Telegraph Act which invests a power in the Telegraph Authority to maintain the telegraph line under, over, along or across and erect post in or upon any immovable property. In cases of obstructions or objections Section 16 of the Telegraph Act enables the Telegraph Authority to move the District Collector or the Executive Magistrate for removal of such obstructions. The District Magistrate is empowered to decide and order that the Telegraph Authority shall be permitted to exercise the powers under Section 10 in respect of any such line. The learned Single Judge also took note of sub-Section 3 of Section 16 which enables the determination of compensation by the District Judge in whose jurisdiction the property is situate. Section 164 of the Electricity Act empowers the appropriate Government to authorize any public officer or a licensee or any other person engaged in the business of supply of electricity to exercise the powers of Telegraph Authority for the purposes of erecting towers or poles.
5. Upon a consideration of the above provisions of the two enactments which have a bearing on the subject, the learned Single Judge concluded that such a negative mandamus cannot be issued preventing the respondents from erecting towers or poles over any land. On the above said conclusions, the learned Single Judge dismissed the Writ Petition. Aggrieved the appellants are before us by way of this intra-Court appeal.
6. We have heard Mr.S.Mahimai Raj, learned counsel for the appellants and Mr.P.H.Aravind Pandian, learned Additional Advocate General appearing for the respondents.
7. Mr.S.Mahimai Raj, learned counsel appearing for the appellants would contend that the power of the respondents to erect tower or poles is not in dispute, but it is only the manner in which such a power was sought to be exercised and was in fact exercised in the case on hand, according to him is questionable. Mr.S.Mahimai Raj, would point out that even as on 12.03.2013, before the filing of the Writ Petition, the appellants had objected to the erection of poles and the Superintending Engineer of the respondent Corporation had rejected the representation by his letter dated 20.03.2013. Mr.S.Mahimai Raj, would also draw our attention to the legal notice issued by him on 02.04.2013 to the respondents objecting to the errection of high tension tower in the land belonging to the appellants. Citing the two representations one dated 12.03.2013 and legal notice dated 02.04.2013 Mr.S.Mahimai Raj, would contend that once the appellants who are the owners of the land had objected to the erection of the tower, the respondents should have followed the procedure under Section 16(1) of the Telegraph Act and approached the District Magistrate for an order to proceed further.
8. Arguing further the learned counsel would submit that though the learned Single Judge had rejected the relief of mandamus it has been observed that the respondents will have to comply with the provisions of the Telegraph Act which empowers them to erect such poles or towers in any land. Contending that neither Section 10 nor Section 16 of the Telegraph Act or Section 164 of the Electricity Act authorize trespassing by the respondents over the land of the appellants, the learned counsel would submit that what has been done in the present case by the respondents is nothing but a sheer illegal trespass.
9. Per contra, Mr.P.H.Aravind Pandian, learned Additional Advocate General appearing for the respondents would submit that once the licensees viz., the respondents were authorized by the Government under Section 164 of the Electricity Act to exercise the powers under the Telegraph Act, the respondents will be entitled to erect towers and draw lines for the purposes of transmission of electricity. He would contend that the procedure prescribed under Section 16 should be followed only when there is an obstruction by the owner or any other person. He would also contend that the appellants would be entitled to compensation in terms of Section 10(3) of the Telegraph Act.
10. He would also invite our attention to the judgment of the Hon'ble Supreme Court in Power Grid Corporation of India Limited Vs. Century Textiles and Industries Limited and others reported in (2017) 5 SCC 143, wherein, the Hon'ble Supreme Court had held that the powers of the licensees to draw electrical lines cannot be questioned and they cannot be injuncted from erecting poles or drawing electrical lines as provided under the enactments viz., the Electricity Act, 2003 and the Telegraph Act, 1885. Mr.P.H.Aravind Pandian, learned Additional Advocate General would submit that once the Appropriate Government has authorized the licensee to place electrical lines or erect towers or poles under 164 of the Electricity Act, 2003, such licensee will be construed to be a Telegraph Authority for the purposes of Section 10 of the Telegraph Act, 1885. While arguing further it was contended on behalf of the respondents that the respondents have complied with the provisions of Section 16(1) by approaching the District Magistrate.
11. This claim was stoutly denied by Mr.S.Mahimai Raj, learned counsel appearing for the appellants. Taking note of the above conflicting statements made by the learned counsel we had, by our order dated 26.06.2018, required the respondents to file an affidavit as to whether they have taken consent from the appellants and if not, whether they have complied with the procedure contemplated under Section 16(1) of the Electricity Act, 1910.
12. Subsequently, the learned Additional Advocate General appearing for the respondents would submit that they neither taken the consent nor they had approached the District Magistrate under Section 16. in view of the said submissions we had by our order dated 17.07.2018 required the respondents to file an affidavit indicating
1. As to whether, the respondent Board refers such objections to the concerned District Magistrates as provided under Section 16(1) read with Section 10 of the Telegraph Act? (or)
2. Whether the officials of the Appellant Board themselves take the decision on such objections?
13. Pursuant to the above directions one Mr.K.Manivannan, Superintending Engineer, General Construction Circle II, Chennai filed an affidavit before us today. The relevant portion of the said affidavit reads as follows:
7. I submit that as per the above provision, wherever an objection is being raised by the land lord in respect of erection of towers or passing of line corridor, if not the obstructor, TANTRANSCO approaches the District Magistrate under Section 16(1) of the Indian Telegraph Act seeking enter upon permission. Further, till the District Magistrate conducts an enquiry and grants approval for enter upon permission, no work is taken up in the subject land and status quo as on the date of making the application is maintained by TANTRANSCO.
8. The route of the transmission line as well as the tower positions are finalized purely on the merits of techno-economic consideration. I am also advised to submit that while optimizing the transmission line project, it is highly essential to take care of the permanent features such as roads, power lines, railway lines, communication lines, dwelling units and the crossing stipulations and statutory clearances as per Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010, are strictly adhered to.
9. I submit that while making an application seeking enter upon permission, the statutory approvals received by the TANTRANSCO, route approval, paper publication and gazette notification are filed by the TANTRANSCO in support of the claim for enter upon permission. The District Magistrate on receipt of the said application, due opportunity is provided to the land owner to make objections. I submit that considering the facts and circumstances and the material on record enter upon permission is granted to TANTRANSCO.
14. The said affidavit further claims that no work was taken up in the appellants property till the pendency of the Writ Petition and only pursuant to the order dated 29.11.2013 passed in W.P.No.16799 of 2013, tower erection was taken up and was completed during December, 2013. Support is drawn from paragraph 85 by the order of the learned Single Judge impugned in this Writ Appeal and the same reads as follows:
85. In the light of the decisions and discussions, this Court is not inclined to issue any Mandamus, restraining the Respondents from erecting or putting up any poles or towers for passing or transmitting any electricity cables or wires through the petitioner's land. In the result, the Writ Petition is dismissed.
15. No doubt the provisions of the Electricity Act as well the Telegraph Act enable the respondents to erect poles or towers over any land and the owners of such land who are affected by such erection of towers or poles are entitled to claim compensation under Section 16(3) of the Telegraph Act. However, when there are objections or obstructions caused during the exercise of such power by the owners of the land, the Authorities are not empowered to trespass over the land and put up the poles. Only to safeguard land holders against such illegal trespass Section 16(1) of Telegraph Act provides that the Authority or licensee will have to approach the District Magistrate for removal of such obstructions.
16. Relying upon the judgment of the Hon'ble Supreme Court in Power Grid Corporation of India Limited Vs. Century Textiles and Industries Limited and others reported in (2017) 5 SCC 143, Mr.P.H.Aravind Pandian, would contend that once the appropriate Government authorizes the licensee to place electricity poles or draw electricity lines the provisions of Telegraph Act would automatically apply to such licensee and the licensee can carryout the works. The Hon'ble Supreme Court had considered the import of Rule 3 and 10 of the Works of Licensee Rules, 2006. Rule 3 of the said Rules provide that the licensee may carryout the works with the prior consent of the owner or occupier of any building or land. The Hon'ble Supreme Court had concluded that Rule 3 will not apply in cases where the appropriate Government had authorized the licensee to carryout the works in terms of Section 164 of the Electricity Act, 2003.
17. Though, Mr.P.H.Aravind Pandian would contend that the judgment of the Hon'ble Supreme Court in Power Grid Corporation of India Limited Vs. Century Textiles and Industries Limited and others reported in (2017) 5 SCC 143, gives the license to the licensee to trespass into the land of others, we are unable to see such a license having been bestowed upon the Authorities by the Hon'ble Supreme Court. All that the Hon'ble Supreme Court has said is that once a notification is issued by the appropriate Government under Section 164 of the Electricity Act, 2003, the licensee will have the powers of a Telegraph Authority under Telegraph Act, 1885. Of course the Hon'ble Supreme Court has held that once the notification is issued under Section 164 of Electricity Act, 2003, the licensee who is so empowered will acquire all such powers which are vested in a Telegraph Authority under the provisions of the Telegraph Act, 1985, including the power to deal with any obstruction in laying the power transmission lines.
18. Sections 10 and 16 of the Telegraph Act have also been taken note of by the Hon'ble Supreme Court and in our opinion the above decision of the Hon'ble Supreme Court only rules that the licensee who is authorized by the appropriate Government under Section 164 would be an authority within the meaning of the Telegraph Act and can exercise the powers conferred on the Telegraph Authority under the Telegraph Act subject to the restrictions placed by the said Act. Admittedly, in the case on hand the consent of the owners viz., appellants was not obtained and the procedure contemplated under Section 16(1) was also not followed. However, it is claimed that the dismissal of the Writ Petition by this Court has given a license to respondents to them to trespass and the respondents had trespassed into the land of the appellants and erected the tower. We find that this action of the respondents is wholly illegal and the same has to be condemned.
19. In the normal course we should have directed the respondents to remove the tower erected by them without following the procedure prescribed under Section 16(1) of the Telegraph Act but now that the tower has been erected and the high tension line has also been drawn, we desist from doing so in public interest. At the same time, we place on record the affidavit filed by the Superintending Engineer of the 1st respondent Corporation TANTRANSCO on record. We direct the respondents to scrupulously follow the procedure prescribed under Section 16 of the Telegraph Act while erecting towers in future. Any deviation or dereliction in following the procedure prescribed under Section 16 in future de hors undertaking given by the Corporation in the affidavit filed by the Superintending Engineer today will be viewed seriously.
20. Though we are of the considered opinion that the action of the respondents is nothing but an illegal trespass amounting to transgression of the right to property protected under Section 300(A) of the Constitution of India and we are not directing removal of the tower in public interest. We must also observe that Mr.S.Mahimai Raj, learned counsel appearing for the appellants had magnanimously conceded that the direction to remove the tower at this point of time may not be in public interest.
21. We are unable to appreciate the attempt made by the respondents to make it appear that the erection of tower itself was pursuant to the order of this Court dated 29.11.2013 dismissing the Writ Petition in W.P.No.16799 of 2013. In the order of the learned Single Judge all that was said was that a mandamus cannot be issued forbearing the respondents from erecting or putting up any towers or poles for transmitting electricity cables or wires through the petitioners' land. The learned Single Judge had not given a license to the respondents to forcefully enter upon the land of the appellants and erect the tower without following a due procedure of law.
22. We make it clear that the appellants as owners of the land whose rights have been impinged by the action of the respondents for erecting the tower are entitled to compensation in terms of Section 16(d) of the Telegraph Act. The respondents shall determine and pay the compensation as per the provisions of Section 16(d) within a period of eight weeks from the date of receipt of a copy of this order. It will be open to the appellants to apply to the District Court having jurisdiction over the property to determine the compensation if they are aggrieved by the sufficiency of the compensation. Normally, we should have imposed costs on the respondents for the carelessness with which they had dealt with the rights of the appellants. We refrain from doing so, in view of the fact that the respondents have come out with an affidavit making it clear that they will strictly adhere to the provisions of Telegraph Act particularly Section 10 and 16 while erecting towers in future.
23. In fine, the Writ Appeal is disposed of as indicated above. However, in the circumstances there will be no order as to costs. Consequently, the connected Miscellaneous Petitions are also closed.
(K.K.SASIDHARAN, J.) (R.SUBRAMANIAN, J.) 31.07.2018 Index : Yes Internet : Yes dsa To
1.Tamil Nadu Electricity Board, Rep. by its Chairman, Head Office, Anna Salai, Chennai 600 002.
2.The Superintending Engineer, Public Construction Division II, Thiru. Vi. Ka. Industrial Estate, Guindy, Chennai 600 002.
K.K.SASIDHARAN, J.
and R.SUBRAMANIAN, J.
dsa W.A.No.1294 of 2017 31.07.2018