Kerala High Court
Power Grid Corporation Of India Limited vs The Additional District Magistrate on 26 February, 2019
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 26TH DAY OF FEBRUARY 2019 / 7TH PHALGUNA, 1940
WP(C).No. 36773 of 2017
PETITIONER:
POWER GRID CORPORATION OF INDIA LIMITED
CONSTRUCTION AREA OFFICE, 400 kV SUBSTATION,
PALLIKKARA, KUMARAPURAM P.O., KOCHI - 683 565
REPRESENTED BY ITS DEPUTY GENERAL MANAGER.
BY ADVS. SRI.K.P.DANDAPANI (SR.)
SRI.MILLU DANDAPANI
RESPONDENTS:
1 THE ADDITIONAL DISTRICT MAGISTRATE,
ERNAKULAM, KOCHI 682 011
2 THE ELECTRICAL INSPECTOR, ELECTRICAL INSPECTORATE,
ERNAKULAM 682 011
3 SHRI.JOSE P.ANTONY, S/O.ANTONY, PELLISSERRY
HOUSE,AMMADOM DESOM, AMMADOM P.O.,
THRISSUR DISTRICT 680 563.
4 SHRI.MADHU GOPALAKRISHNAN, KOMPANOLIL HOUSE,
KOTTAMON PARA P.O.-689 667, PATHANAMTHITTA DISTRICT.
BY ADVS. SRI.V.ABRAHAM MARKOS
SMT.RACHEL ABRAHAM
SRI.ABRAHAM JOSEPH MARKOS
SRI.HARAN THOMAS GEORGE
SRI.ISAAC THOMAS
SRI.P.G.CHANDAPILLAI ABRAHAM
SRI.N.B.SUNILNATH-GP
SRI.C.P.PRADEEP-SR.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
26.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC 36773/17 2
JUDGMENT
The petitioner, Power Grid Corporation of India Ltd., which is a Government of India Enterprise, has been notified by the Central Government as a Central Transmission Utility under Section 38 of the Electricity Act, 2003 and they have placed on record Exhibit P13, being a copy of the said notification. They say that they are, therefore, a deemed transmission licencee and that the Central Government is the appropriate Government in respect of their activities.
2. Sri.Millu Dandapani, learned counsel for the petitioner submits that the petitioner is now carrying on the construction and erection of '400 kV Edamon-Kochi Electricity Transmission Line' from Koodamkulam Power Station in accordance with the provisions of the Electricity Act, 2003 and the Indian Telegraph Act, 1885 and that they have, for this purpose, formulated an alignment that runs nearly 442 kms, adding that most of the works, including installation of the large towers required for this purpose, are now complete. However, according to him, when it came to the construction of Tower No. 291/1, disputes were raised by respondents 3 and 4, who alleged that the alignment in this area was a in a 'warped manner' and that a WPC 36773/17 3 straight natural line alignment can be drawn from Tower No.290/0 to Tower No.291/1.
3. It appears from the materials on record that, based on this objection, the matter was referred to the Additional District Magistrate, the first respondent herein, under Section 16 of the Indian Telegraph Act and that the said authority took the assistance of the Electrical Inspectorate of the Government of Kerala in issuing Exhibit P10 order, whereby the objections of respondents 3 and 4 have been found to be tenable and the petitioner has been resultantly directed to draw the line through the ' normal/ natural alignment thereby deviating from the original alignment put forward by the petitioner, that is, alignment of tower straight from location 290/0 to 291/1' (sic).
4. The afore order of the first respondent has been impugned by the petitioner on the singular allegation that the said authority has ordered the change of alignment without a proper technical study but based merely on the opinion of the Electrical Inspectorate, which according to them, is not a competent authority and without adverting to their objections as to the technical difficulties that they will have to encounter if the original alignment is now to be changed. WPC 36773/17 4
5. The learned counsel for the petitioner reiterates that the petitioner had preferred Exhibit P8 objections before the first respondent, by way of a written submission, wherein, they have specifically mentioned the catastrophic effect that would be caused if the alignment is to be changed in the manner now suggested by the said respondent, but that these were never taken into account and Exhibit P10 order has been issued in total disregard to their valid technical and engineering objections.
6. Sri.Joseph Markos, learned Senior Counsel, assisted by Sri.Abraham Markos, learned counsel appearing for the fourth respondent, commenced his submissions against the contentions of the petitioner, by saying that the power vested with the competent authority under Section 16 of the Indian Telegraph Act takes into its fold even the power to change the alignment if it so necessary. The learned Senior Counsel submits that when respondents 3 and 4 made certain legitimate and genuine objections against the original alignment and when it was found by the first respondent that such objections were tenable, going by the technical reports obtained through the Electrical Inspectorate, the said authority was well within its powers to have issued Exhibit P10 order, directing a change of WPC 36773/17 5 alignment, which was intended to achieve the purposes as sanctioned by Section 16 of the Indian Telegraph Act. He relies on the judgments of this Court in Valsamma Thomas v. Additional District Magistrate (1997 (2) KLT 979), V.V.Manikkam v. Assistant Engineer, Electrical Sub Division, KSEB and Others (2008 (1) KLT 647) and Indu Chandran v. Kerala State Electricity Board Ltd. (2017 (3) KLT 420) to substantiate his contention that it is the competent authority under Section 16 of the Indian Telegraph Act, who has been vested with the plenary powers to decide even on the questions relating to alignment of the line, adverting to the prejudice that may be caused to the persons affected.
7. The learned Senior Counsel further contends that while this Court acts under Article 226 of the Constitution of India, it does not generally interfere with the findings of fact entered into by the authority under Section 16 of the Indian Telegraph Act, adding that, in the case at hand, the first respondent had asked the petitioner to place on record their technical objections against the change of alignment and that the petitioner had shown nothing substantiable against it, except merely stating that such change of alignment would cost more than the present one, the said authority was completely WPC 36773/17 6 justified in issuing Exhibit P10 order. He draws my attention particularly to the response of the petitioner before the first respondent, namely Exhibit P5, wherein, according to him, the only reason stated by them in opposing the change of alignment is that the cost of construction will be escalated and that the lands belonging to certain other persons will be affected, since the rubber trees standing thereon will require to be cut and removed. He says that it is, therefore, perspicuous from Exhibit P5 that the petitioner had no objection against the technical aspects of the re-alignment but that they were only concerned about the cost and the requirement of land and nothing more. The learned Senior Counsel closed his submissions by saying that, as is clear from Exhibit R6(3) sketch, the change of alignment recommended by the Additional District Magistrate is only through the natural straight line and that the original alignment was certainly a 'warped one' traversing a greater length and therefore, totally unnecessary, except that it was intended to help certain other people to the detriment of respondents 3 and 4.
8. The learned counsel appearing for the petitioner refutes the afore submissions of the learned Senior Counsel by saying that, contrary to what is recorded in Exhibit P10, the petitioner had WPC 36773/17 7 specifically stated their technical and engineering objections against the change of alignment before the first respondent in Exhibit P8, wherein, they have categorically stated that it is not possible from the angle of installation and engineering of the towers, especially involving such large extent, to change the alignment, but that the first respondent did not consider the same at all merely saying in Exhibit P10 that the Electrical Inspectorate thinks otherwise. The learned counsel calls my attention to page 8 of Exhibit P10, wherein the first respondent says as under:
"But in the present case, a technical expert like the Electrical Inspectorate does not have the same view of the corporation and suggested an alternate route against the original route of the corporation as having the natural alignment, which is technically feasible with less length."
The learned counsel contends that, as is luculent from the afore- extracted portion, the first respondent was also aware that specific technical objections had been impelled by the petitioner but that it decided to disregard the same solely because the Electrical Inspectorate had spoken otherwise. He says that by allowing the Electrical Inspectorate to intervene in a project that was conceptualised and executed by the petitioner, in such a manner, the very integrity of the project may be compromised and that if, for any WPC 36773/17 8 reason, something is to happen on account of such change of alignment, even the Electrical Inspectorate cannot held responsible, thus causing a situation of great alarm for the project and for the residents of the area, through which the line is now running.
9. When I consider the submissions made as afore, one thing that immediately catches my attention is that through Exhibit P10 order, what has been done by the first respondent is to order change of alignment based on a report from the Electrical Inspectorate. The Electrical Inspectorate is an authority under the Government of Kerala invested with the powers to inspect the electrical installations and the works thereto, but is not authorised, even by the appealable Statute and Regulations, to prepare or change the alignments for such large installations. This is important because, in an installation of the kind we are concerned in this case, several large towers are to be erected, which requires detailed topographical study, environmental and ecological impact assessments, including a walk over and a detailed survey and it is only after a meticulous composite analysis of all these factors is an alignment is prepared, specifying the points where the individual towers have to be installed, as also the structure and design of such towers, so as to provide for the highest WPC 36773/17 9 integrity for the entire installation, not merely one tower.
10. Viewed thus, it becomes impossible even to think that an Electrical Inspector or the Officers of the Electrical Inspectorate can be allowed to decide the change of alignment of such a large installation and that their opinion can be given primacy over that of the experts who have propounded the alignment, that too in a small section of it. It does not require greater explication to understand that if something should go wrong on account of the order of the first respondent, based on the report and opinion of the Electrical Inspectorate, then neither can the said Inspectorate or the first respondent be held responsible and the entire integrity of the alignment may, therefore, suffer without anyone being responsible for the same. This certainly is a cataclysmic situation, which this Court is not in a position to countenance.
11. I am, therefore, of the specific view that the question as to change of alignment could have been decided by the first respondent only after considering the specific technical and engineering objections raised by the petitioner and he could have perhaps adverted to the opinion of the Electrical Inspectorate, but only as an opinion and nothing more and he should have then taken a carefully WPC 36773/17 10 thought out decision, rather than blindly following the recommendations of the Electrical Inspectorate and that too overruling the objections placed on record by the petitioner.
12. Resultantly, I am of the firm opinion that Exhibit P10 order cannot obtain the imprimatur of this Court and that the first respondent will have to re-consider all these issues, taking note of the specific objections placed before him by the petitioner. The first respondent is enjoined to act implicitly as per the mandate of Section 16 of the Indian Telegraph Act, specifically appreciating the objections raised by the petitioner with respect to the technical and engineering aspects of the project and thereafter issue an order, after affording all other parties an opportunity of being heard.
13. In summation, I set aside Exhibit P10 order and direct the first respondent to take a fresh decision within the parameters of Section 16 of the Indian Telegraph Act, after affording an opportunity of being heard to all parties and adverting specifically to the objections of the petitioner and to then issue an order in terms of law, as expeditiously as is possible but not later than six weeks from the date of receipt of a copy of this judgment.
WPC 36773/17 11
14. I make it clear that during this exercise, the first respondent will be at liberty to advert to the opinion of the Electrical Inspectorate but that no order can be issued based on such opinion alone, without taking note of the specific objections of the petitioner.
15. To facilitate an expeditious disposal of the matter as ordered herein, I direct all the parties to mark appearance in the office of the first respondent at 11 a.m. on 07.03.2019, so that the said authority can commence proceedings and complete it within the time frame fixed by this Court.
This writ petition is thus ordered.
Sd/-
Devan Ramachandran, Judge tkv WPC 36773/17 12 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 23/4/2010 OF THIS HON'BLE COURT IN WPC NO.13573 OF 2010 EXHIBIT P2 TRUE COPY OF THE ORDER REFERENCE NO.K-
DIS/26464/10/MS DATED 13/10/2010 BY THE 1ST RESPONDENT, ADDITIONAL DISTRICT MAGISTRATE, ERNAKULAM EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 18/11/2010 BY THIS HON'BLE COURT IN WPC NO.33962/2010 EXHIBIT P4 TRUE COPY OF THE OBJECTION DATED 01/01/2010 RAISED BY THE 4TH RESPONDENT SRI.MADHU GOPALAKRISHNAN AGAINST THE DRAWAL OF THE LINE THROUGH LOCATION NO.291/10 EXHIBIT P5 TRUE COPY OF THE SUBMISSION MADE BY THE PETITIONER CORPORATION BEFORE THE 2ND RESPONDENT AS REGARDS TO THE NON-
FEASIBILITY OF THE ALTERATION
EXHIBIT P5(A) TRUE COPY OF THE GOOGLE MAP OF THE ROUTE
ALIGNMENT OF LOCATION OF TOWER NO.288/0 TO
LOCATION TOWER NO.293/0
EXHIBIT P6 TRUE COPY OF THE REPORT REF. NO.T2-
15136/2010/EIC DATED 19/2/2011 ALONG WITH
THE SKETCH SUBMITTED BY THE ELECTRICAL
INSPECTOR
EXHIBIT P7 TRUE COPY OF THE ORDER PASSED BY THE 1ST
RESPONDENT REFERENCE NO.K.DIS/66696/10M5
DATED 22/2/2011
EXHIBIT P8 TRUE COPY OF THE WRITTEN SUBMISSION OF THE
PETITIONER TO THE 1ST RESPONDENT DATED
20/10/2016
WPC 36773/17 13
EXHIBIT P9 TRUE COPY OF THE LETTER OF ELECTRICAL
INSPECTOR REFERENCE NO.T4-17040/16/EIE
DATED 9/12/2016
EXHIBIT P10 TRUE COPY OF THE ORDER OF THE 1ST
RESPONDENT-ADDITIONAL DISTRICT MAGISTRATE, ERNAKULAM REFERENCE NO.K.DIS/73752/2010/MS DATED 25/3/2017 EXHIBIT P11 TRUE COPY OF THE INTERIM ORDER DATED 21/8/2017 OF THIS HON'BLE COURT IN WPC NO.26160/2017 AND CONNECTED MATTERS THEREIN EXHIBIT P12 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE PRESENT STATUS OF THE LOCATIONS IN THE SUBJECT AREA EXHIBIT P12 PHOTOGRAPHS SHOWING PROGRESS OF THE WORKS AT THE RELEVANT LOCATIONS REFERRED TO IN THE AFFIDAVIT.
EXHIBIT P13 TRUE COPY OF THE NOTIFICATION DATED 27.11.2003 PUBLISHED IN THE GAZETTE OF INDIA, EXTRAORDINARY, PART II, SECTION 3 - SUB-SECTION (II) EXHIBIT P14 TRUE COPY OF THE INTERNAL NOTE SHEET OF CONSTRUCTION AREA OFFICE, POWER GRID CORPORATION OF INDIA LTD, KOCHI APPROVING THE ABOVE ACTIVITIES VIDE NOTE SHEET REF NO.CAO/COCHIN/LINES/05/CAMP B'LORE DATED 23.8.2005 EXHIBIT P15 TRUE COPY OF THE INTERNAL NOTE SHEET OF CONSTRUCTIONS AREA OFFICE, POWER GRID CORPORATION OF INDIA LTD, KOCHI FINALISING THE CHECK SURVEY REPORT VIDE REF.NO.SR- II/KOC/TLC/F-411 DATED 9.9.2009 PERTAINING TO APPROVAL OF TOWERS EXHIBIT P15(a) TRUE COPY OF THE NOTE SHEET OF CONSTRUCTION AREA OFFICE, POWER GRID CORPORATION OF INDIA LTD, KOCHI FINALISING THE CHECK SURVEY REPORT VIDE REF.NO.SR-II/KOC/TLC/F-411 DATED 24.10.2009 PERTAINING TO APPROVAL OF TOWERS /true copy/ P.S. TO JUDGE