Telangana High Court
M/S.Vishal Projects Private Ltd vs The State Of Telangana on 4 February, 2021
Author: A.Abhishek Reddy
Bench: A.Abhishek Reddy
THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
WRIT PETITION Nos. 20055 of 2020 and 20824 of 2020
COMMON ORDER:
Since the issue involved in both these writ petitions is one and same, they are heard together and being disposed of by this common order at the admission stage itself.
Both these writ petitions are filed by M/s. Vishal Projects Private Limited, which is involved in the business of construction of villas/residential houses. During the course of its business, it has undertaken a project for construction of gated community independent houses, named as "Vishal Sanjivini" over the land admeasuring Ac.35.00 guntas in Sy.Nos. 161, 162, 165, 166/P, 167/P and 168/P of Srinagar Village, Maheshwaram Mandal, Ranga Reddy District duly entering into development agreements with the respective land owners. The petitioner has completed the 70% of the project work and most of the purchasers have also occupied the houses. While so, in order to meet the increased demand in power consumption, the official respondents have decided to erect a 132/33 KV Sub-station at Kandukur in Ranga Reddy District along with connecting 132 KV & 32 KV lines. During the course of execution of the said project, since the construction of HT towers, through the project of the petitioner, is likely to take place, the respondent authorities inspected the site of the petitioner and asked the staff of the petitioner to vacate the site. Hence, the petitioner submitted representations to the respondent No. 4, the Superintending Engineer, on 17.02.2020, 01.03.2020 and 23.05.2020 seeking details of the project, namely the number of towers that would be erected in the land, the route map of the towards, etc. Since there was no 2 response, the petitioner had filed W.P. No. 9368 of 2020 challenging the action of the respondents. This Court, by order dated 29.06.2020, disposed of the writ petition with the following directions:-
"In view of the above submissions, this writ petition is disposed of granting liberty to the petitioner to submit fresh representation to the 4th respondent raising all the contentions, which are raised in the present writ petition along with supporting material within one week from the date of receipt of a copy of this order. On receipt of such representation, after hearing the petitioner, the 4th respondent shall consider the same including the material placed before it and also the principle held by the Apex Court in Power Grid Corporation of India Ltd.'s case referred supra or any other judgment. The 4th respondent and other officials concerned shall complete the exercise within two weeks from the date of receipt of the representation submitted by the petitioner. Till then, Respondents 2 to 4 are directed not to proceed with laying of HT lines through the petitioner's property. It is made clear that neither the petitioner nor the Villa owner shall claim any equities under the guise of this order."
Thereafter, the petitioner had submitted a detailed representation on 23.07.2020 to the respondent No. 4 duly suggesting the two alternate route maps that can be explored in order to avoid the petitioner's project. According to the petitioner, alternate route proposed by it passes through the Master Plan Road and agricultural land, unlike the developed housing residential projects. But, the respondent No. 4 rejected the representation of the petitioner, vide orders dated 21.09.2020 without exploring the alternate options proposed by the petitioner. If the proposed towers are laid across the project of the petitioner, the HT lines would pass through the independent houses, thereby endangering the lives of inmates/occupants of the houses. Hence, the petitioner again filed a review petition on 12.10.2020 to the respondent No. 4 to review its order dated 21.09.2020. However, the respondent No. 4 did not take any action thereon and the officials came to the project of the 3 petitioner on 03.11.2020 for excavation of the site for erection of towers. Although the Hyderabad Metropolitan Development Authority ('HMDA'), vide its letter dated 05.11.2020 conveyed their 'no objection' for laying of the proposed towers along the 30meters Master Plan Road, the respondents are not taking any steps to save the project of the petitioner. Subsequently, by proceedings dated 13.11.2020, the respondent No. 4 rejected the review petition filed by the petitioner.
Hence, the petitioner has filed the former writ petition, i.e. W.P. No. 20055 of 2020, challenging the proceedings of respondent No. 4, dated 21.09.2020 insofar rejecting the proposal of the petitioner for exploring the two alternate route maps, and filed the latter writ petition, i.e. W.P. No. 20824 of 2020, challenging the proceedings of the respondent No. 4, dated 13.11.2020, whereby the review petition filed by the petitioner seeking review of the proceedings dated 21.09.2020 was rejected.
On behalf of official respondent Nos. 1 to 4, the respondent No. 4 filed a counter affidavit in W.P. No. 20055 of 2020 denying the averments made therein. According to respondent No. 4, in order to meet the increased load and to improve voltage conditions, the proposed project for erection of 132/33KV Sub-station at Kandukuru in Ranga Reddy District is approved by the respondents. A route proposal for erection of 132KV line from 220KV Fabcity Sub-station to the proposed 132KV Kandukuru Sub-station was approved vide proceedings in Lr. No. CPT130/SE-PM-II/D.No. 353/15, dated 16.05.2015 and it was also published in the Gazette on 15.07.2015, and that the commissioning of the project was also undertaken through a contractor during the year 2017 itself. Knowing fully well that that the construction of towers has been taken up in the year 4 2017 itself, the petitioner filed W.P. No. 9368 of 2020 on the ground that his three representations filed during February-May, 2020 have not been considered. However, this Court by order dated 29.06.2020 disposed of the writ petition directing the respondents to consider the said representations of the petitioner and with a direction to the petitioner to file a fresh representation. Accordingly, the petitioner submitted a representation on 23.07.2020 along with the location map issued by the HMDA. After duly considering the said representation and after providing opportunity of personal hearing to the petitioner, the respondent No. 4 examined the two alternate routes proposed by the petitioner and passed a detailed order rejecting the request of the petitioner as the said alternate routes were found to be 'technically not feasible'. The plan/proposal submitted by the petitioner in its representation, dated 23.07.2020, falls in private lands and only some part is owned by the Government. The land for the proposed road was not acquired by HMDA and hence, the said route proposed by the petitioner cannot be considered. According to the respondents, the towers are being erected outside the land of the petitioner and only lines are being drawn over the land. Since the petitioner has been consistently pleading with the respondents that the line should be laid along the proposed 30 meters Master Plan Road being laid by HMDA, the respondents, by letter dated 05.10.2020 requested the HMDA to accord permission for laying of the proposed line along the said road passing from ORR to Srinagar Village to Imamguda Mandal. In response, the HMDA, vide its letter dated 05.11.2020 has expressed its 'no objection' for such proposal. After some correspondence in that regard, the HMDA, by its letter dated 10.11.2020 (signed by the Metropolitan Commissioner on 5 13.11.2020) informed the respondents that the 30 meters Master Plan Road is passing through private lands, and as the HMDA has not yet acquired those private lands, it cannot give permission to lay the lines through the said Road. As the petitioner was resorting to other tactics to obstruct the respondents from laying the lines, the Municipal Commissioner, Thukkuguda, by letter dated 05.11.2020, had asked the petitioner to stop the unauthorised constructions and also to remove the unauthorised structures in the proposed line.
In order to explore the other possibilities, in compliance with the direction of this Court in W.P. No. 9368 of 2020, the respondents, by letter dated 11.11.2020 requested the Telangana State Industrial Infrastructure Corporation ('TSIIC') to grant permission to lay the towers and erect the line along the median of the Fabcity road for about 400 metres as the line would have passed along the road, if permission was accorded by the HMDA. Even TSIIC, by its letter dated 13.11.2020, has refused to grant the permission as the road is required for heavy vehicles carrying containers for the Fabcity project. Thus, after exhausting all the alternate possibilities to change the alignment of the proposed line, the respondents have rejected the review petition filed by the petitioner, by order dated 13.11.2020.
Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents. Perused the material available on record.
While admitting W.P. No. 20055 of 2020, this Court directed the parties to maintain status quo and the same has been extended from time to time.
The main contention of the petitioner is that although this Court had specifically directed the respondents in the earlier writ 6 petition filed by the petitioner, namely W.P. No. 9368 of 2020, to explore the possibility of alternate routes to be submitted by the petitioner in his representation, the respondents by order dated 21.09.2020, rejected the representation of the petitioner, dated 23.07.2020, on erroneous considerations. In the impugned order, dated 21.09.2020, the respondents had observed as under:-
"In general, the overhead lines of TRANSCO will be erected duly laying the towers preferably in the government/assigned lands and if inevitable in private lands with minimum loss to the land owners. Before taking of the work in private land, that will be apprised to the land owners and possible compensation will be arranged".
However, the petitioner has neither been informed about laying of HT Lines and their passing through the project nor consent has been obtained from the petitioner for undertaking the HT Line project.
The learned counsel for the petitioner contends that inasmuch as the petitioner has already constructed the major portion of the housing project and as most of the purchasers have occupied the houses, if the proposed line were permitted to be laid through the project of the petitioner, besides posing health hazard to the inmates of the houses over which the overhead HT Lines passes, it would cause irreparable loss to the petitioner and the entire project may have to be abandoned. It is the duty of the respondents to see that to the maximum extent possible, the private properties are not disturbed for laying the HT Lines and only in unavoidable situations, the private lands can be used for the said purpose. In this regard, even the Hon'ble Supreme Court in the case of Power Grid Corporation of India Limited v. Century Textiles and Industries Limited1 while dealing with the issue of power of a licensee to lay transmission lines 1 (2017) 5 SCC 143 7 under the Electricity Act, 2003 across the private property and the applicability of the provisions of Telegraph Act, 1885, had observed that "the laying of transmission lines shall cause as little damage as possible". Furthermore, the alternate route proposed by the petitioner is passing through the Master Plan Road and agricultural land unlike the developed housing residential land like the petitioner's land and that it is always advisable to lay the HT Lines in agricultural lands rather than in developed, housing, independent housing lands. However, without considering the grievance of the petitioner and without exploring the alternative route maps proposed by the petitioner, the respondent No. 4 rejected the representation of the petitioner by the impugned order, dated 21.09.2020. After filing the review petition by the petitioner, in response to the request of the respondent No. 4, the HMDA, by its letter dated 11.11.2020 informed that "a part of 30 meter wide master road on northern side is passing through the side belonging to M/s. Vishal Projects and the southern side portion of the Master Plan Road is passing partly through private lands and partly through Government lands. Hence, to the extent of the HT line passing through private lands, the TRANSCO shall lay the line duly acquiring the land from the concerned land owners and to the extent the line is passing through the Government lands, the HMDA has no objection". Simply, by referring the above said communication of the HMDA, the respondent No. 4, by its letter dated 13.11.2020 informed the petitioner that the review petition is rejected on the ground that the laying of the Line along the 30 Meter Master Plan Road is not possible in view of the movement of heavy vehicles on the Fabcity Road which is connecting the Srisailam Highway and Fabcity. 8 Even the review petition has been dismissed without affording an opportunity of hearing to the petitioner.
Per contra, the learned Standing Counsel for the respondents contends that the erection of the proposed Lines was finalised as long back as on 16.05.2015 and the same was also published in the Gazette on 15.07.2015, i.e. much prior to the commencement of the residential project by the petitioner. Thus, the petitioner is aware of the work to be undertaken for laying of lines in the year 2017 itself, and therefore, the contention of the learned counsel for the petitioner that, the proposal of HT Lines through the petitioner's project has not been informed, is not correct. Even otherwise, the towers are being erected outside the land of the petitioner and the petitioner is merely aggrieved by the line passing over their land. In pursuance of the orders passed by this Court in W.P. No. 9368 of 2020, the petitioner had filed a representation on 23.07.2020 along with the alternate proposals, and the same has duly been considered and only after providing the opportunity of personal hearing to the petitioner, the impugned order dated 21.09.2020 has been passed with elaborate reasons. It is contended that it is not proper on the part of the petitioner to contend that the respondents have not explored the alternate options submitted by the petitioner. In fact, the officials of the respondents had visited the proposed 30 meters Master Plan Road, and the farmers/owners had informed that their lands, where the road is proposed, have not been acquired, either by the Government or by the HMDA. Therefore, the HMDA cannot give permission to lay the lines in 30 meters Master Plan Road as they are not the owners of the land. With regard to the other option proposed by the petitioner, the TSIIC, through its letter dated 13.11.2020 9 rejected the request of the respondent No. 4 to lay the towers and erect the line along the median of the Fabcity road on the ground that the said road is required for heavy vehicles carrying containers for the Fabcity project. Therefore, after exhausting all the options available to change the alignment of the proposed HT Lines, the review petition of the petitioner was rejected. Hence, the learned Standing Counsel sought to dismiss both the writ petitions.
As seen from the record, in pursuance of the orders of this Court in W.P. No. 9368 of 2020, the petitioner made a representation to the respondents on 23.07.2020 along with two alternate proposals for laying of HT Lines. It is the specific case of the respondents that personal hearing was granted to the petitioner on 02.09.2020 and after considering the representation, and the submissions of the petitioner, a detailed order was passed on 21.09.2020 rejecting the request of the petitioner. The observations in the impugned order, dated 21.09.2020 reads thus:-
"Observations:
On thorough examination of the representations made by M/s. Vishal Projects Pvt. Ltd, the following observations are made:
1. In general, the Overhead lines of TSTRANSCO will be erected duly laying the towers preferably in the Government/assigned lands and if inevitable in private lands with a minimum loss to land owners. Before taking up the work in private land, that will be apprised to the land owners and possible compensation will be arranged.
In this case, the towers from Loc.No.5 to 9 are proposed to be laid adjacent to boundary wall of M/s. Vishal Projects Pvt Ltd. Further the line corridor between Loc.No.9 to 10 is also passing outside and along the boundary wall of Vishal Projects in Sy.No.161 which does not belong to Vishal Projects. As the line is passing adjacent to their boundary but not in their land, hence notice was not issued.
When the work is taken up & excavation started during March of 2017, adjacent land owner M/s. Vishal Projects Pvt Ltd representatives enquired and then requested to stop the work temporarily and informed that they will explore the alternate route and then they have represented to the Chairman & Managing Director/TSTRANSCO for shifting of line on 18.04.2017. As such, the contention of M/s. Vishal Projects Pvt. Ltd that notice was not given is not acceptable. However, 10 now Vishal Projects Pvt Ltd claiming that the adjacent land in Survey No.161 also belongs to them and line is passing through their land.
2. The towers from Loc.No.5 to 10 are proposed to be laid adjacent to the boundary wall of M/s. Vishal Projects Pvt. Ltd and the total number of towers to be laid are only six for which foundations are physically excavated. Being a Government organization dealing with transmission business, its our primary responsibility to erect and maintain towers duly maintaining clearances from residential areas. The designs/technical specification will not be disclosed to the private parties/agencies. However, the route map of the line was communicated to the party.
Hence, the contention of M/s. Vishal Projects Pvt Ltd that there is no response to their representations & kept them in dark is not correct.
3. M/s. Vishal Projects Pvt Ltd representatives met TSTRANSCO officials several times at site and on their request explored the possibilities of other routes suggested by them.
a) One route adjacent to temple is passing along the HMDA approved plots and there is no responsibility for the line to lay towards the Srisailam Highway for connectivity to 132 KV SS Kandukur.
b) The other route which they are claiming as 100 feet proposed HMDA road is a private party land.
As such it was suggested to get a consent letter from this private party land owner during 2017 only.........."
Thus, the respondents have explored the alternate options suggested by the petitioner in depth and came to the conclusion that it is not possible to divert the line. Even by the subsequent order, dated 13.11.2020 while rejecting the review petition filed by the petitioner, the respondent No. 4 clearly stated that the HMDA and TSIIC denied giving permission for the diversion of the HT Lines. While the HMDA clarified that they have not acquired the private land through which the Master Plan Road is proposed, the TSIIC informed that it is not possible to erect the towers and lay the 132KV line in the median of 150 feet Fabcity approach road, as it being industrial and electronic manufacturing cluster city, heave vehicle movement is expected.
Admittedly, the towers are being erected outside the land of the petitioner, but the lines are being drawn over the land of the 11 petitioner. According to Section 164 of the Electricity Act, 2003, the respondents are empowered to lay the lines and erect the transmission towards and only after the lines are laid and towers are erected, the cause of action to claim compensation for crop loss or damage to the land arises. Even if a person is aggrieved by the compensation so determined, he/she is at liberty to approach appropriate forum by initiating appropriate proceedings for enhancement of compensation as stipulated under Section 16(3) of the Indian Telegraph Act, 1885. Even as per the averments of the petitioner, the line as proposed by the petitioner will have to pass through the lands of other farmers. As seen from the record, already 70 towers, out of 90 towers, have been laid. Therefore, at this stage, it is not just and proper to direct the respondents to change the alignment of the line.
At this stage, the learned counsel for the petitioner submits that 70% of the housing project has already been completed and the remaining work is in progress. The laying of HT Lines through the petitioner's project would not only cause danger to the lives of the inmates of the houses, but also cause huge financial loss to the petitioner. Therefore, the learned counsel seeks indulgence of this Court by directing the respondents to consider the feasibility of laying the HT Lines through underground, instead of overhead power line, by using PILC, XLPE cables etc. wherever they are proposed at the petitioner's project.
For the reasons stated above, this Court is not inclined to interfere with both the impugned orders passed the respondents. However, in view of the submission of the learned counsel for the petitioner with regard to laying of underground cable, the respondents 12 are directed to consider the case of the petitioner sympathetically by exploring the possibility of laying the underground cable, instead of overhead power lines, in order to save the project of the petitioner, in case the petitioner is willing to deposit the costs for laying of the underground cable, likely to be determined by the respondents.
With the above observations, both the writ petitions are disposed of.
Miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.
________________________ A.ABHISHEK REDDY, J Date :04.02.2021 Tsr