Madras High Court
Vellaichamy vs The State Of Tamilnadu on 22 August, 2014
Author: R.Mahadevan
Bench: R.Mahadevan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.08.2014 CORAM THE HONOURABLE MR.JUSTICE R.MAHADEVAN W.P(MD)No.10194 of 2009 AND W.P(MD)No.5629 of 2010 and M.P(MD)Nos.1 of 2010 & 1 of 2011 AND W.P(MD)No.6730 of 2011 and M.P(MD)Nos. 1 of 2011, 1 of 2012 & 1 of 2013 W.P(MD)No.10194 of 2009 Vellaichamy ... Petitioner Vs. 1.The State of Tamilnadu, represented by The Secretary to Government, Department of Electricity, Fort St. George, Chennai - 9. 2.The Tamilnadu Electricity Board, Anna Salai, Chennai, represented by its Chairman. 3.The Assistant Executive Engineer, High Tension Line Construction I, Tamilnadu Electricity Board, K.Pudur, Madurai - 7. 4.The District Collector, Virudhunagar District, Virudhunagar. ... Respondents (R4 impleaded as per order of this Court dated 07.02.2014 made in M.P(MD)No.1 of 2012 in W.P(MD)No.10194 of 2009.) Prayer Petition filed under Article 226 of the Constitution of India, to issue a writ of Certiorarified Mandamus to call for the records in the impugned order No.565/AEE/Pea.Va.Mi.Ka/Madurai Division/A.File/ dated 07.08.2009 passed by the third respondent and quash the same and direct the respondents 1 to 3 to pay compensation at the rate of Rs.15,000/- per cent for unlawfully depriving the petitioner of his property right in 0.44.00 Hectare equivalent to 1 acre and 9 cents of land comprised in Survey No.135/19A 2V of Kadambamkulam village, Kariapatti Taluk, Virudhunagar District, with 12% interest from the date of filing of this writ petition till the date of realization and within the time limit fixed by this Court. !For Petitioner ... Mr.C.Dhanaseelan ^For Respondents ... Mr.S.M.S.Johnny Basha, for R.1 to R.3 Mrs.S.Bharathi Govt. Advocate for R.4 * * * * W.P(MD)No.5629 of 2010: Velusamy ... Petitioner Vs. 1.The Chairman, Tamil Nadu Electricity Board, Chennai. 2.The Superintending Engineer, TNEB, GCC, K.Pudur, Madurai. 3.The Executive Engineer, TNEB, TLC, Pon Nagaram, Dindigul. 4.The Assistant Engineer, TNEB, TLC, Pon Nagaram, Dindigul. 5.The Inspector of Police, Aravakurichi Police Station, Karur District. ... Respondents Prayer Petition filed under Article 226 of the Constitution of India, to issue a writ of Mandamus to forbear the respondents herein from erecting any high tension electric tower in S.No.538 to an extent of 8.39.5 hectares in Periya Manjuveli village, Aravakurichi Taluk, Karur District. For Petitioner ... Mr.R.Vijayakumar For Respondents ... Mr.S.M.S.Johnny Basha, for R.1 to R.4 Mrs.S.Bharathi Govt. Advocate for R.5 * * * * W.P(MD)No.6730 of 2011: Rajalakshmi ... Petitioner Vs. 1.The Superintending Engineer, Tamil Nadu Electricity Board, Madurai. 2.The Executive Engineer, Tamil Nadu Electricity Board, (Tower Line Section), Tamil Nadu Electricity Board Complex, K.Pudur, Madurai. 3.The Assistant Engineer, Tower Line Section, Tamil Nadu Electricity Board, (Angu Nagar Sub Station), Dindigul. ... Respondents Prayer Petition filed under Article 226 of the Constitution of India, to issue a writ of Certiorarified Mandamus to call for the records pertaining to the impugned order passed on 31.05.2010 in letter No.U PO/PEMIVAKA/Dindu/Ko.Kattu/A.No.91/2010 and quash the same as illegal and further direct the third respondent not to install any high tension tower in Survey No.347, Alamarathupatti, Aravakuruchi Taluk, Karur District, without following the procedure established by the Electricity Act, 2003 and Telegraph Act, 1885. For Petitioner ... Mr.A.Abdul Kadhar for M/s.Eddy and Embboss Law Firm For Respondents ... Mr.S.M.S.Johnny Basha, for R.1 to R.3 * * * * :COMMON ORDER
Since the issue related to the erection of high tension electric lines and payment of compensation is similar in all the writ petitions, they are taken up for hearing together and disposed of by this common order.
2. W.P(MD)No.10194 of 2009 has been filed seeking a writ of Certiorarified Mandamus to call for the records in the impugned order No.565/AEE/Pea.Va.Mi.Ka/Madurai Division/A.File/ dated 07.08.2009 passed by the third respondent and quash the same and direct the respondents 1 to 3 to pay compensation at the rate of Rs.15,000/- per cent for unlawfully depriving the petitioner of his property right in 0.44.00 Hectare equivalent to 1 acre and 9 cents of land comprised in Survey No.135/19A 2V of Kadambamkulam village, Kariapatti Taluk, Virudhunagar District, with 12% interest from the date of filing of this writ petition till the date of realization and within the time limit fixed by this Court.
3. W.P(MD)No.5629 of 2010 has been filed seeking a writ of Mandamus to forbear the respondents herein from erecting any high tension electric tower in S.No.538 to an extent of 8.39.5 hectares in Periya Manjuveli village, Aravakurichi Taluk, Karur District.
4. W.P(MD)No.6730 of 2011 has been filed seeking a writ of Certiorarified Mandamus to call for the records pertaining to the impugned order passed on 31.05.2010 in letter No.U PO/PEMIVAKA/Dindu/Ko.Kattu/A.No.91/2010 and quash the same as illegal and further direct the third respondent not to install any high tension tower in Survey No.347, Alamarathupatti, Aravakuruchi Taluk, Karur District, without following the procedure established by the Electricity Act, 2003 and Telegraph Act, 1885.
5. The land owners are before this Court with the present writ petitions seeking the above relief.
6. Brief facts of the case of the petitioners are as follows:
6.1. The petitioner are all owners of their respective lands. When the respondents attempted to erect high tension towers, they have expressed their objections. The petitioners have contended that because of the erection of towers, the lands have lost their fertility. The erections of towers are without authority and only to suit to the private parties and are not in public interest. They have also stated that they have not been paid any compensation for the deprivation of the use of their land The objections of the petitioners have been rejected in W.P(MD)Nos.10194 of 2009 and 6730 of 2011. Insofar as W.P.(MD)No.5629 of 2010 is concerned, no order has been passed on the objections. Under these circumstances, these writ petitions have been filed.
6.2. The third respondent in W.P(MD).No.10194 of 2009 stated that as per Section 51 of the Electricity Act, 1910, the Government of Tamil Nadu conferred upon the Tamil Nadu Electricity Board, the licensee, the powers which the Telegraph Authority possessed under the Indian Telegraph Act, 1885.
Further, the said power line was erected in pursuance to the scheme as sanctioned by the Government of Tamil Nadu which came to be notified in Official Gazette in Gazette Notification vide part VI Section 3(6), dated 26.06.1996. This line consists of 76 locations out of which locations 68 and 69 are double pole structures. The operation of the double circuit line had been approved by the Chief Engineer/Transmission, Chennai, vide Memo No.SE/TR/EW/A1/F.1487/D.87/98 dated 07.03.1998. The said double circuit was installed nearly before 13 years and the petitioner claimed compensation after inordinate delay. The said work is being carried out in the interest of public. Hence, he prayed for the dismissal of the writ petition.
6.3. The fourth respondent in W.P(MD)No.5629 of 2010 denied the claim of the petitioner stating that the transmission line was schemed from Sempatty-Pugalur 110 KV line to Renganathapuram 230/110KV Sub Station. Out of 67 towers, 66 towers are passing through lot of land owners. The petitioner and his family members threatened the fourth respondent, consequent to which, a complaint had been lodged. The fourth respondent also denied the allegation that the transmission line is only for the private person or mill and stated that it is purely for the benefit of the public. Hence, he prayed for the dismissal of the writ petition.
6.4. The third respondent in W.P(MD)No.6730 of 2011 filed the counter affidavit stating that almost 95% of the work had been completed in the entire scheme, which is being stalled by the petitioner. As per Sections 10 and 16 of the Telegraph Act, 1885, no prior permission is necessary from the concerned land owners to lay transmission line and erect the tower. On 31.05.2010, a reply was sent by the petitioner to the notice issued on 24.04.2010 wherein, the petitioner objected to the project nearly after four years of its commencement. The petitioner can claim only the crop damages alone if he cultivated so in his land. Since it is a dry land, there is no possibility for claiming any compensation. This transmission line is installed for the larger interest of public and therefore, he prayed for the dismissal of the writ petition.
7. The learned Counsel for the Tamil Nadu Electricity Board submitted that almost 90% of the work had been completed and hence, no relief can be granted to the petitioners.
8. He further submitted that it is not mandatory to give notice to the land owners for laying down the High Tension Power line and it is only for the District Collector so as to look into the issue regarding compensation. The petitioners have raised a specific plea for payment of compensation which can be agitated only before the District Collector, for which, the Electricity Board cannot have any say in the matter.
9. The Counsel for the petitioner in W.P(MD)No.10194 of 2009 submitted that the petitioner was in Muscat when the High Tension Towers were erected on the land of the petitioner. The Counsel further contended that without acquisition, the respondents are not entitled to erect the towers and carry the lines. The Counsel also contended that the action of the respondents infringes the rights guaranteed under Article 300-A of the Constitution of India. The Counsel also contended that since the lines pass through the entire stretch of the petitioner?s land, the land could not be used for any purpose and therefore the petitioner is entitled for compensation and since the violation is continuing violation, the failure of the petitioner to raise objections to the notifications cannot be relied upon to deny the compensation and therefore sought for appropriate directions.
10. The learned Counsel appearing for the petitioner in W.P No 5629 of 2010 submitted that on 16.04.2010, the officials of the respondent Board visited the property of the petitioner for erection of second high tension tower. According to the petitioner, the second tower is being installed for effecting supply to a private mill. The erection of the tower is not as per the scheme of the Board and no cultivation can take place and would endanger the life of the petitioner and his family members as they reside about 50 feet away from the proposed site in which there is an open well and deep borewell. The Counsel further contended that without awarding any compensation, the respondents with the help of police authorities had commenced the work and therefore wanted this Court to pass appropriate orders curbing the illegal acts of the respondent Board. The Counsel also placed reliance upon the judgments reported in S.Senthil Kumar and another v. Executive Engineer (Distribution), TNEB reported in (2008) 4 MLJ 546 and T.Narayanan and others v. Power Grid Corporation (India) Ltd., and others reported in (2007) 7 MLJ 452 in support of his contentions.
11. The Counsel for the petitioner in W.P.(MD)No.6730 of 2011 contended that without following the due process, the respondents attempted to install a high tension tower. The Counsel further submitted that a detailed objection was sent to the respondents objecting to the erection. The Counsel assailed the impugned order contending that the notification in 2005 as per Electricity Act, 1948 is void ab initio as the Electricity Act 1948 was repealed and the new act came into force in 2003 and therefore, the finding in the impugned proceedings that since no objection was raised within the stipulated time is untenable. The Counsel further contended that even otherwise without notice to the petitioner as contemplated under Section 29, no work can be carried out and the due procedure contemplated under the Indian Telegraphic Act has to be followed. Under the above circumstances, the Counsel sought for appropriate orders as prayed. The Counsel also relied upon the judgments reported in T.Narayanan and others v. Power Grid Corporation (India) Ltd., and others reported in (2007) 7 MLJ 452 and the unreported judgment of this Court in W.P.No.20322 of 2010 decided on 21.09.2010 [Vinay Hirawat v. The Director, Transmission Projects, TNEB, Chennai, and two others].
12. Per contra, the learned Counsel for the Board contended that the allegations of the petitioners that the lines are erected for supply to private parties are false. The Counsel further contended that the towers are erected after proper notification and in exercise of power conferred under section 10 and 16 of the Indian Telegraph Act. The consent of the owners are not necessary and the opportunity is provided only to assess the loss if any to the owners and consider the possibility of realignment. The petitioners having failed to raise any objections within the stipulated time, cannot now raise any objections and the writ petitions are liable to be dismissed on the ground of laches. The Counsel further contended that the towers are erected based on a specific alignment and it is not possible to alter the alignment as it would affect the transmission and result in huge loss to the Board. Already, several towers have been erected in line with the suggested alignment after survey. The Counsel further submitted that erection of the tower is only for the benefit of the public at large and there is no endangerment to human life or to cattles. The Counsel further submitted that in view of the belated approach of the petitioners, they are not entitled to any compensation. The Counsel relied upon the orders of this Court in C.Ram Prakash and another v. Power Grid Corporation of India Limited [W.A.(MD)No.602 of 2011, decided on 23.08.2011] and Sri Vignesh Yarns Pvt. Ltd., v. S.Subramaniam reported in (2013) 1 MLJ 56 and sought the dismissal of the writ petitions.
13. Heard the submissions made on either side and perused the materials available on record.
14. The Electricity Act 2003, came into force on 10th june 2003. It was enacted to replace the (i) Indian Electricity Act, 1910, (ii) Electricity Supply Act, 1948 and (iii) Electricity Regulatory Commissions Act, 1908.
15. The relevant portion in the statement of objects and reasons for enacting the Act in the Bill, is as follows;
"5. The Bill seeks to replace the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commissions Act, 1998.
6. The Bill seeks to achieve the following objects:
(i) Generation is being delicensed and captive generation is being freely permitted. Hydro projects would, however, need approval of the State Government and clearance from the Central Electricity Authority which would go into the issues of dam safety and optimal utilization of water resources.
(ii) There would be a Transmission Utility at the Central as well as State level, which would be a Government company and have the responsibility of ensuring that the transmission network is developed in a planned and co-
ordinated manner to meet the requirements of the sector. The load despatch function could be kept with the Transmission Utility or separated. In the case of separation, the load despatch function would have to remain with a State Government organisation/company.
(iii) There is provision for private transmission licensees.
(iv) There would be open access in transmission from the outset with provision for surcharge for taking care of current level of cross subsidy with the surcharge being gradually phased out.
(v) Distribution licensees would be free to undertake generation and generating companies would be free to take up distribution licensees.
(vi) The State Electricity Regulatory Commissions may permit open access in distribution in phases with surcharge for -
(a) current level of cross subsidy to be gradually phased out along with cross subsidies; and
(b) obligation to supply.
(vii) For rural and remote areas stand alone systems for generation and distribution would be permitted.
(viii) For rural areas decentralised management of distribution through Panchayats, Users Associations, Co-operatives or franchisees would be permitted.
(ix) Trading as a distinct activity is being recognised with the safeguard of the Regulatory Commissions being authorised to fix ceilings on trading margins, if necessary.
(x) Where there is direct commercial relationship between a consumer and a generating company or a trader the price of power would not be regulated and only the transmission and wheeling charges with surcharge would be regulated.
(xi) There is provision for a transfer scheme by which company/companies can be created by the State Governments from the State Electricity Boards. The State Governments have the option of continuing with the State Electricity Boards which under the new scheme of things would be a distribution licensee and the State Transmission Utility which would also be owning generation assets. The service conditions of the employees would as a result of restructuring not be inferior.
(xii) An Appellate Tribunal has been created for disposal of appeals against the decision of the Central Electricity Regulatory Commission and State Electricity Regulatory Commissions so that there is speedy disposal of such matters. The State Electricity Regulatory Commissions is a mandatory requirement.
(xiii) Provisions relting to theft of electricity have a revenue focus."
16. Section 2 (38) and (39) of the Electricty Act, 2003 reads as follows:
"2(38): "licence" means a licence granted under section 14; 2(39): "licensee" means a person who has been granted a licence under section 14."
17. Section 14 of the Electricity Act 2003, reads as follows:
"14. Grant of licence.- The Appropriate Commission may, on an application made to it under section 15, grant a licence to any person -
(a) to transmit electricity as a transmission licensee; or
(b) to distribute electricity as a distribution licensee; or
(c) to undertake trading in electricity as an electricity trader, in any area as may be specified in the licence:
Provided that any person engaged in the business of transmission or supply of electricity under the provisions of the repealed laws or any Act specified in the Schedule on or before the appointed date shall be deemed to be a licensee under this Act for such period as may be stipulated in the licence, clearance or approval granted to him under the repealed laws or such Act specified in the Schedule, and the provisions of the repealed laws or such Act specified in the Schedule in respect of such licence shall apply for a period of one year from the date of commencement of this Act or such earlier period as may be specified, at the request of the licensee, by the Appropriate Commission and thereafter the provisions of this Act shall apply to such business:
Provided further that the Central Transmission Utility or the State Transmission Utility shall be deemed to be a transmission licensee under this Act:
Provided also that in case an Appropriate Government transmits electricity or distributes electricity or undertakes trading in electricity, whether before or after the commencement of this Act, such Government shall be deemed to be a licensee under this Act, but shall not be required to obtain a licence under this Act:
Provided also that the Damodar Valley Corporation, established under sub-section (1) of section 3 of the Damodar Valley Corporation Act, 1948 (14 of 1948), shall be deemed to be a licensee under this Act but shall not be required to obtain a licence under this Act and the provisions of the Damodar Valley Corporation Act, 1948 (14 of 1948) in so far as they are not inconsistent with the provisions of this Act, shall continue to apply to that Corporation:
Provided also that the Government company or the company referred to in sub-section (2) of section 131 of this Act and the company or companies created in pursuance of the Acts specified in the Schedule, shall be deemed to be a licensee under this Act:
Provided also that the Appropriate Commission may grant a licence to two or more persons for distribution of electricity through their own distribution system within the same area subject to the conditions that the applicant for grant of licence within the same area shall, without prejudice to the other conditions or requirements under this Act, comply with the additional requirements (relating to the capital adequacy, credit-worthiness, or code of conduct) as may be prescribed by the Central Government, and no such applicant who complies with all the requirements for grant of licence, shall be refused grant of licence on the ground that there already exists a licensee in the same area for the same purpose:
Provided also that in a case where a distribution licensee proposes to undertake distribution of electricity for a specified area within his area of supply through another person, that person shall not be required to obtain any separate licence from the concerned State Commission and such distribution licensee shall be responsible for distribution of electricity in his area of supply:
Provided also that where a person intends to generate and distribute electricity in a rural area to be notified by the State Government, such person shall not require any licence for such generation and distribution of electricity, but he shall comply with the measures which may be specified by the Authority under section 53:
Provided also that a distribution licensee shall not require a licence to undertake trading in electricity."
18. Section 164 of Electricity Act, 2003, reads as follows:
"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 (13 of 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."
19. The relevant provisions under the Indian Telegraphic Act reads as follows:
"Section 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 exercise the powers conferred by this section except for the purposes of a telegraph established or 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."
"Section 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, or as to the proportions in which the persons interested are 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 recover by suit the whole or any part of any compensation paid by the telegraph authority, from the person who has received the same."
20. The relevant provision under the Work of Licensees Rules, 2006 is as under:
"Rule 3. Licensee to carry out works.- (1) A licensee may -
(a) carry out works, lay down or place any electric supply line or other works in, through, or against, any building, or on, over or under any land whereon, whereover or whereunder any electric supply-line or works has not already been lawfully laid down or placed by such licensee, with the prior consent of the owner or occupier of any building or land;
(b) fix any support of overhead line or any stay or strut required for the purpose of securing in position any support of an overhead line on any building or land or having been so fixed, may alter such support:
Provided that in case where the owner or occupier of the building or land raises objections in respect of works to be carried out under this rule, the licensee shall obtain permission in writing from the District Magistrate or the Commissioner of Police or any other officer authorised by the State Government in this behalf, for carrying out the works:
Provided further that if at any time, the owner or occupier of any building or land on which any works have been carried out or any support of an overhead line, stay or strut has been fixed shows sufficient cause, the District Magistrate or the Commissioner of Police, or the officer authorised may by order in writing direct for any such works, support, stay or strut to be removed or altered.
(2) When making an order under sub-rule (1), the District Magistrate or the Commissioner of Police or the officer so authorised, as the case may be, shall fix, after considering the representations of the concerned persons, if any, the amount of compensation or of annual rent, or of both, which should in his opinion be paid by the licensee to the owner or occupier. (3) Every order made by a District Magistrate or a Commissioner of Police or an authorised officer under sub-rule (1) shall be subject to revision by the Appropriate Commission.
(4) Nothing contained in this rule shall effect the powers conferred upon any licensee under section 164 of the Act."
21. The conjoint reading of the above provisions results in the following conclusions:
(i) The Provisions of Electricity (Supply) Act, 1948, cannot be invoked after 10th June 2003;
(ii) The respondent Board is the licensee entrusted with duty of transmission;
(iii) The Board is entitled to erect towers in any land to ensure transmission of electricity;
(iv) The Board does not acquire any title over the land but is only a user of the land in public interest;
(v) The Board shall pay full compensation to all persons interested for any damage sustained by the owners of the land;
(vi) In case of any obstruction, the Board has to approach the District Magistrate who may in his discretion direct that the authority shall be permitted to carry out the work; and
(vii) The word ?may? used in Section 16 signifies an enquiry which is possible only after hearing the concerned parties.
With the above background, this Court shall deal with the issue on hand.
22. Insofar as W.P(MD)No.10194 of 2009 is concerned, the notification is claimed to have been effected in 1996. The case of the petitioner is that since he was in abroad, he could not submit his objections. The main contention of the petitioner is that the towers had already been erected in his absence, he is only seeking compensation and the reason for rejection is that more than 10 years have lapsed after the commissioning of the towers. Even though the right to hold a property is a constitutional right, right to electricity being a fundamental right falling part of Article 21 of the Constitution of India and the right to life would over ride the constitutional right. Therefore, in public interest, the Board is entitled to deprive the constitutional right to enforce the fundamental right of public at large. Even though as per the statutory provisions, the Board is only a user of the land, the provisions also contemplate payment of compensation. Once, towers are installed and lines are drawn through out the property, the land cannot be used for any other purpose. The payment of compensation in these circumstances is not a formality but becomes mandatory. The petitioner in his affidavit had clearly stated that he had returned to India only in February 2009. The deprivation of the land is a continuous loss and hence this Court is of the view that the petitioner is entitled for compensation.
23. Insofar as W.P(MD)No.5629 of 2010 is concerned, the writ petition has been filed before the installing of the second tower. As stated earlier, the Board is entitled to erect the tower. But at the same time, when an objection is raised, the matter has to be referred to the District Magistrate who has to conduct an enquiry and pass orders.
24. In the judgment reported in T.Narayanan and others v. Power Grid Corporation (India) Ltd., and others reported in (2007) 7 MLJ 452 , this Court has held as follows :
"20. It is no doubt true that all the judgments referred to by either side and discussed above arose out of the old Electricity Act. After the enactment of the Indian Electricity Act, 2003, the earlier provisions relating to Schemes etc., no longer hold the field. But however, the Indian Telegraph Act remains unchanged and therefore, the provisions of the Indian Telegraph Act cannot be wished away. Moreover, as we have seen already, the authorization given under Section 164 of the Act conferring powers on the licensee may be an absolute authorization or it could be a qualified or a modified or a limited authorization. The authorization granted to the Corporation is subject to their complying with the provisions of the Electricity Act, 2003. Therefore, the Corporation cannot be heard to say that it can ignore the provisions of sub-rule (4) of Rule 3. Even if one were to accept that, the Corporation cannot deny that its powers are limited by Section 16 of the Indian Telegraph Act. Therefore, when there are objections to the laying of telegraph lines or the erection of transmission towers as the case may be, the Corporation is bound to get the permission of the District Magistrate."
25. In yet another judgment relied upon by the Counsel for petitioner in S.Senthil Kumar and another v. Executive Engineer (Distribution) reported in (2008) 4 MLJ 546, it is held as follows:
"9. In such circumstances, when admittedly Section 135 relates to theft of electricity and Section 126 relates to unauthorised use of electricity, it is not acceptable that even before the criminal liability of theft is concluded as per Section 135 of the Act, any final assessment can be made without giving notice to the petitioners and giving opportunity to explain. In view of the same and on the ground that before making the provisional assessment into final order which is impugned in this writ petition, no show cause notice was issued to the petitioners, the impugned order is set aside. It is open to the respondents to give proper opportunity in accodance with the notification issued by the Government on 13.6.2007 and pass appropriate orders."
26. The judgment in S.Senthil Kumar and another v. Executive Engineer (Distribution) reported in (2008) 4 MLJ 546, is on different facts and is not applicable to present facts of the case. However, the judgment in T.Narayanan and others v. Power Grid Corporation (India) Ltd., and others reported in (2007) 7 MLJ 452, is applicable to the facts of the case. Even though the Electricity Act, 1948, stood repealed as on 10.06.2003, the Board still has powers under the Electricity Act, 2003 and the Indian Telegraphic Act, which has been held by the Division Bench of this Court in C.Ram Prakash and another v. Power Grid Corporation of India Ltd., [W.A.(MD)No.602 of 2011, decided on 23.08.2011], in paragraphs 23 and 24, held as under:
"23. Section 16 of the Indian Telegraph Act provides for a mechanism by which the respondent No.1 can approach the second respondent, if there is an obstruction or resistance. It is not necessary that in each and every case the respondent No.1 will have to approach the second respondent whenever there is an objection. The word objection has got a different connotation than the words resistance or obstruction. A resistance or obstruction would mean preventing the statutory body from carrying out the public duty. Whereas an objection is merely a form of protest. Further, under Section 16 of the Indian Telegraph Act, the respondent No.2 has got no power to go into the merits of the case and find out as to whether the alignment proposed is correct or not and there is any possibility of realignment. The prescription of Section 16 of the Indian Telegraph Act is very specific to provide aid to the respondent No.1 to perform its statutory duty. Considering the scope of Section 10 of the Indian Telegraph Act vis-a-vis Section 16 of the Indian Telegraph Act, it has been held by the Division Bench of the Delhi High Court in Scindia Potteries v. Purolator India Ltd., AIR 1980 Delhi 157 as follows:
"9. .. The exercise of power under Section 10 is not conditional on compliance with the provisions of Section 16(1) of the Act. The power given under Sec. 10 is absolute. It is only when there is a resistance or obstruction in the exercise of that power that the occasion to approach the District Magistrate arises. If there is no resistance or obstruction, there is no occasion for the telegraph authority to approach the District Magistrate. The alleged oral protest relied upon by the appellant appears to us to be a made up story. Two telegraph poles were affixed on the appellants' property in February, 1974. The telephone lines and connections were thereafter given from time to time. Till the landlord-tenant dispute arose between the appellant and M/s.Purolator India Ltd., no objection was raised by the appellant. No doubt in April, 1978 the appellant gave notice to the telegraph authority under Sections 17 and 19A of the Act and may be that the telephone connections in May, 1978 can be treated as the ones objected to but then Sections 17 and 19A have a different purport. The resistance and obstruction envisaged by Section 16(1) of the Act is different. This will be clear on a reading of sub-section (1) of Section 16 of the Act. It is for the purpose of Section 188 I.P.C. that an application is to be given under Section 16(1) of the Act to the District Magistrate. Section 188, I.P.C. makes the disobedience of an order duly promulgated by the public servant an offence. Section 16 is really in aid of the discharge of statutory duty and exercise of statutory power postulated by Section 10."
We are in respectful agreement with the ratio laid down therein.
24. The learned counsel for the appellants made reliance upon the judgment of the Full Bench of this Court in Arumugam v. State of Tamil Nadu, 2001 (4) CTC 353. We are afraid that the said case has no relevance to the present case on hand. The Full Bench of this Court was dealing with a conscious omission made by the legislature touching upon Article 21 of the Constitution of India, whereas considering the object behind the Indian Telegraph Act and the Electricity Act, 2003, and in view of the power available under Section 10 of the Indian Telegraph Act, 1885 the respondent No.1 has got every jurisdiction to erect the towers."
27. The Counsel for the respondent Board, placing reliance on the notification dated 11.03.2005, has contended that the notification was already effected inviting objections from the land owners concerned. Admittedly, a tower had already been erected and it is now proposed to erect a second tower. Since the petitioner had already raised an objection, the matter must be referred to a District Magistrate .
28. The facts in W.P.(MD)No.6730 of 2011 are also similar to both the above cases. The case was filed before the erection of the towers. The petitioner had already filed his objections. The petitioner also relied upon the very same judgment in T.Narayanan and others v. Power Grid Corporation (India) Ltd., and others reported in (2007) 7 MLJ 452 and another judgment in Vinay Hirawat v. The Director, Transmission Projects, TNEB, Chennai [W.P.No.20322 of 2010, decided on 21.09.2010], in which, a direction was given to the District Magistrate. Further, the learned Counsel for the petitioner in W.P(MD)No.6730 of 2011, placing reliance on the decision of this Court in R.Santhana Raj v. The Chief Engineer, Non-Conventional Energy Source reported in 2012 (1) CTC 504, contended that once protest is filed even in the form of a formal letter or notice, it would amount to obstruction within the meaning of Section 16(1) of the Telegraph Act, 1885 and in that event, the respondent Board have to obtain an order from the District Magistrate.
29. In R.Santhana Raj case (supra), this Court has elaborately discussed the principles regarding the erection of high tension electric towers by analysing the relevant laws governing the field and highlighted the procedures to be adopted, thus:
"62. Therefore, it is clear that the entire work has now been completed and the act of providing connection to the supply alone remains. In such circumstances, it may not be feasible to grant the prayer of the Petitioner for a writ of mandamus to forbear the Respondents from erecting the towers. I am not for a moment suggesting that the prayer has become infructuous. But the grant of the prayer for mandamus, after the entire exercise has been carried out, would result in serious consequences.
63. Even if I allow the prayer for mandamus, it would be open to the Respondents to seek the permission of the District Magistrate to pass an order under Section 16(1) of the Telegraph Act, 1885. If the District Magistrate chooses to exercise his discretion to direct the Petitioner to permit the erection of towers, nothing much could be done thereafter, since the power of judicial review over such exercise of discretion may be limited. On the other hand, even if I refuse the prayer for mandamus sought by the Petitioner, he would still have two types of remedies against the Respondents. They are (i) a remedy under Section 16(3) for determining the sufficiency of compensation and (ii) a remedy under Section 17(1) to require Section 17(2) to apply to the District Magistrate to direct the removal of the line or post. In other words, the grant of the prayer for mandamus after the Respondents have completed the erection of towers would leave the Respondents remedyless, while the refusal of the prayer for mandamus would not leave the Petitioner remedyless.
64. Therefore, the Writ Petition is dismissed. However, the Petitioner is granted liberty to apply to the District Magistrate under Section 17(2) of the Telegraph Act, 1885 for the removal of the towers or to seek compensation in terms of Section 16. There will be no order as to costs. Consequently connected Miscellaneous Petitions are closed."
(emphasis added.) A careful reading of the above decision would make it clear that the petitioners herein, on whose lands the high tension electric towers had already been installed, are not remedyless.
30. Whereas the learned Counsel for the respondent Board contended that the notifications were effected in the year 2005 and no objections were filed. The validity of the notifications under the 1948 Act has already been discussed by this Court in the preceding paragraphs. The erection works were commenced only just before the writ petition was filed and interim injunction was granted by this Court. In view of the same, this Court is of the view that the objections have to be decided by the District Magistrate.
31. The Counsel for the respondent Board has relied upon the judgment in Sri Vignesh Yarns Pvt. Ltd., v. S.Subramaniam reported in (2013) 1 MLJ 56, wherein the First Bench of this Court has held as follows:
"19. As we have observed earlier, as per the scheme of the Act, the District Collector was not empowered either under Section 16 or Section 17 of the Indian Telegraph Act to decide upon the route and his power was more in the nature of execution of a decision taken under Section 10 of the Act or under Section 67 or 68 of the Electricity Act, 2003. Therefore, when the experts namely the officials of the Board took a definite stand that the original route which was proposed was technically more feasible and it would be in the interest of the public, since the route was along the existing Panchayat road, we find there is absolutely no justification for the Collector to pass an order on 18.7.2011 to change the route which was not found to be technically feasible by the experts. Further, the entire work has been completed except for nine towers and at that stage it would be improper for the District Collector to alter the route, and adopt an alternate route which was found not technically feasible. It is stated that the expenses incurred so far is about Rs.150 crores for erecting lines, apart from Rs.3,000 crores which was spent for construction of the new Thermal Power Plant at Mettur and the power which has to be evacuated through its supply line is to provide uninterrupted power supply to both agriculture and industrial development. Therefore, by virtue of the delay, the power line could not be erected on time though the Power Plant was ready to generate about 600 MW power by the end of March, 2012."
32. Under such circumstances, this Court finds force in the contentions of the Counsel for the respondent Board and hence, holds that the feasibility of alternate route can also be considered by the District Magistrate.
33. In the result, the writ petitions in W.P(MD)Nos.5629 of 2010 and 6730 of 2011, are disposed of, with a direction to the respondent Board to approach the District Magistrate concerned within four weeks from the date of receipt of a copy of this order. The District Magistrate shall hear both the parties and pass orders in accordance with law, within four weeks thereafter. In case, the District Magistrate concerned decides against the petitioners herein, they are entitled to get compensation as per law. Similarly, the case of the petitioner in W.P(MD)No.10194 of 2009 shall be considered by the fourth respondent - District Collector, Virudhunagar District and compensation shall be paid as per law within a period of eight weeks from the date of receipt of a copy of this order. Accordingly, W.P(MD)No.10194 of 2009 is disposed of. Consequently, all the connected miscellaneous petitions are closed. No costs.
Note: Issue Order Copy on 25.08.2014.
Index : Yes / No 22.08.2014 Internet : Yes / No rsb To 1.The Secretary to Government, The State of Tamilnadu, Department of Electricity, Fort St. George, Chennai - 9. 2.The Chairman, Tamilnadu Electricity Board, Anna Salai, Chennai. 3.The Assistant Executive Engineer, High Tension Line Construction I,
Tamilnadu Electricity Board, K.Pudur, Madurai - 7.
4.The District Collector, Virudhunagar District, Virudhunagar.
5.The Superintending Engineer, TNEB, GCC, K.Pudur, Madurai.
6.The Executive Engineer, TNEB, TLC, Pon Nagaram, Dindigul.
7.The Assistant Engineer, TNEB, TLC, Pon Nagaram, Dindigul.
8.The Inspector of Police, Aravakurichi Police Station, Karur District.
9.The Executive Engineer, Tamil Nadu Electricity Board, (Tower Line Section), Tamil Nadu Electricity Board Complex, K.Pudur, Madurai.
10.The Assistant Engineer, Tower Line Section, Tamil Nadu Electricity Board, (Angu Nagar Sub Station), Dindigul.
R.MAHADEVAN,J.
rsb PRE-DELIVERY COMMON ORDER MADE IN W.P(MD)No.10194 of 2009 AND W.P(MD)No.5629 of 2010 and M.P(MD)Nos.1 of 2010 & 1 of 2011 AND W.P(MD)No.6730 of 2011 and M.P(MD)Nos. 1 of 2011, 1 of 2012 & 1 of 2013 22.08.2014