Madhya Pradesh High Court
Chhindwara Plus Developers Limited vs Union Of India on 4 July, 2017
Equivalent citations: AIR 2017 MADHYA PRADESH 173
1 W.P. No. 801/2017
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : JUSTICE MS.VANDANA KASREKAR
WRIT PETITION NO. 801/2017
Chhindwara Plus Developers Limited
Vs.
Union of India & Others
Shri Shashank Shekhar and Shri Bhoopesh Tiwari,
learned counsel for the petitioner.
Shri Rahul Jain, learned counsel for respondent No.
1.
Shri Mrigendra Singh, learned senior counsel with
Shri Saurabh Sunder, learned counsel for respondents No.
4 and 5.
Smt. J. Pandit, learned Government Advocate for
respondent Nos. 2, 3, 6 and 7.
ORDER
(04.07.2017) The petitioner has filed the present petition challenging the order dated 30.03.2016 passed by respondent No. 6 by which respondent No. 6 have permitted respondent No. 8 to erect "high-tension 2 W.P. No. 801/2017 electricity poles & lines" subject to compliance of Section 10 of the Indian Telegraph Act, Section 16 & 16 (1) of the Indian Telegraph Act and Section 42 of the Electric Supply Act, 1948.
2. The petitioner is a company known as M/s Chhindwara Plus Developers Limited. The company developing a Special Economic Zone in District Chhindwara comprising of approximate 4,000 acres of land. The project is one of the best projects for development of industries in Madhya Pradesh and specially the area in question which has huge population of Schedule Tribe. In the year 2007, an investors meet was organized by the State of Madhya Pradesh and the petitioner was also invited. In the investors meet, the State of Madhya Pradesh requested the petitioner to make investment in the State of Madhya Pradesh. In furtherance of the investors meet, an M.O.U was executed between the petitioner and the State of Madhya Pradesh and by way of M.O.U it was decided to establish a Special Economic Zone (SEZ) at Tehsil 3 W.P. No. 801/2017 Sausar of District Chhindwara. The establishment of SEZ is the dream project of State of Madhya Pradesh as the same would accommodate approximately 200 National and Multinational Industries which will provide employment to approximate one lac persons and would get investment of approximate 30,000 crores. For the purpose of developing a Special Economic Zone, the petitioner company has acquired land through sale-deeds, acquisition, through allotment and exchange. On the said piece of land, all necessary permissions have been obtained by the company. The competent authority has granted a formal approval in favour of the petitioner on 29.08.2016 issued under Sub- section 10 of Section 3 of the SEZ Act. The said approval is valid for a period of three years within which time the developer has to implement the project. In furtherance of the M.O.U executed between the State Government and the petitioner, the petitioner started the project of establishment of the Special Economic Zone by acquiring the land. So far as, the private lands are concerned, the 4 W.P. No. 801/2017 petitioner on behalf of the State Government acquired the private lands from their respective owners and paid the compensation in accordance with the new land acquisition Act. Further, the State Government itself allotted the land belonging to the State Government in favour of the petitioner for the purpose of establishment of the SEZ. The company has already established assets worth Rs. 1000 crores which include the land in question and other assets.
3. While, the petitioner was carrying on the project work, at that time, the petitioner came to know about the order dated 30.03.2016 passed by respondent No. 6 by which respondent No. 6 gave permission to Power Grid Corporation of India Limited to lay their high voltage line in various villages of Chhindwara, which includes the three villages namely Savanga, Koda Dongari & Dudhala Khurd i.e. the villages where the project is being implemented by the petitioner company. The said order was not within the knowledge of the petitioner company and it was somewhere between 18-19/12/2016 5 W.P. No. 801/2017 that the Revenue Officers as well as the officers of Power Grid Corporation visited the spot in question. After coming into the knowledge of the order dated 30.03.2016, the petitioner immediately moved a representation dated 20.12.2016 before the Collector, Chhindwara. In response to the said representation, it was informed to the petitioner that the project of Power Grid Corporation was approved for approximately 3000 crores i.e. the project of NTPC and as the project was to be completed soon and 70% work already stood completed, hence, they be permitted to lay the high tension lines across the project area.
4. The Power Grid Corporation then again vide letter dated 04.01.2017 requested the Collector to permit them to lay the high-tension lines through the Special Economic Zone project. The petitioner again submitted a representation on 05.01.2017 stating that the project in question was also a public project and was having importance in eyes of the State Government as it was supposed to churn profit development and progress for the 6 W.P. No. 801/2017 State. The project was under Special Economic Zone Act and as such, it was prayed that an alternative route for installation of high-tension lines be given to the Power Grid Corporation. The respondents have not taken any action in the matter, the petitioner has, therefore, filed the present petition.
5. Learned counsel appearing on behalf of the petitioner argues that the impugned order dated 30.03.2016 is void ab initio for the reason that the respondent Power Grid Warora Transmission Limited admittedly was not having authorization under Section 164 of the Electricity Act, 2003 (hereinafter referred to as "the Electricity Act") and as such, without conferring the powers of Telegraph Act by way of authorization under Section 164 of the Electricity Act, no authority can lay down the high-tension electricity lines and the powers of District Magistrate under Section 16 cannot be invoked until and unless the authority which is entrusted with the work of laying down the high- tension lines is conferred the powers of Telegraph Act. He 7 W.P. No. 801/2017 further submits that the Section 10 of the Telegraph Act provides for the powers of telegraph authority to place and maintain telegraph lines and posts.
6. The Section 10 provides for exercise of power by telegraph authority with regard to two kinds of properties i.e. the property vested in or the under control or management of local authority and private property. The Section 10 (c) provides that the telegraph authority shall not exercise the powers in respect of any property vested in or under the control of or management of any local authority without the permission of that authority. The Section 10 (d) provides for payment of compensation for the damages sustained by land owner by reason of the exercise of those powers. The Section 16 of the Telegraph Act provides for exercise of powers conferred by section 10, and disputes as to compensation, in case of property other than that of a local authority.
7. Thus, from bare perusal of Section 10 and Section 16 of the Telegraph Act, it is evidently clear that to 8 W.P. No. 801/2017 exercise the powers under Section 10 whether with or without the permission of the District Magistrate, the authority must be conferred with the power of Telegraph Authority. He further submits that the property in question falls within the purview of Section 10(c) of the Telegraph Act and the Development Commissioner being the local authority and, therefore, without the permission of Development Commissioner, no high-tension lines can be laid down over the property in question.
8. Learned counsel for the petitioner further submits that the work in question involves the installation of high-tension electricity polls and lines under the Electricity Act. It is submitted that Section 164 of the Electricity Act, 2003 provides for exercise of powers of telegraph authority in certain cases. As per Section 164 of the Electricity Act, the powers under Section 10 of the Telegraph Act are conferred by way of authorization upon any licensee or authority, so that, the authority or the licensee could exercise the powers of telegraph authority 9 W.P. No. 801/2017 while doing the work of laying down high-tension polls and lines. It is the authorization under Section 164 of the Electricity Act is a condition precedent for exercise of power under Section 10 of the Telegraph Act. He further submits that under Section 164 of the Electricity Act, it is the appropriate Government which is the competent authority to grant authorization under Section 164 of the Electricity Act, therefore, as per Section 2(5) of the Electricity Act, it is the Central Government which is the authority competent to grant licence under Section 164 of the Electricity Act. He submits that in the present case, respondent No. 8 is having no authorization as per Section 164 in its favour, therefore, the order impugned is illegal and deserves to be set aside.
9. Learned counsel for the petitioner further submits that the respondents in their return have submitted that respondent No. 8 is a subsidiary company of respondent Nos. 4 and 5 and as all licenses and permissions have been granted to respondent Nos. 4 & 5 10 W.P. No. 801/2017 that would be applicable to respondent No. 8 also. The learned counsel for the petitioner submits that this contention of the respondents is not acceptable as the subsidiary company enjoys an independent and separate legal entity and as such, it cannot be said that all the licenses and permissions granted to respondent No. 4 and 5 would be specifically applicable to respondent No. 8. He further submits that there are 8 more companies which are subsidiary company to respondent No. 4. Amongst 8 such companies, one is Power Grid Jabalpur Transmission Limited and this company is also a subsidiary company of respondent No. 4. The Power Grid Jabalpur Transmission Limited has also secured authorization under Section 164 of the Electricity Act regarding conferring of powers of Telegraph Authority. The Power Grid Jabalpur Transmission Limited in its independent capacity had moved an application before the competent authority for the purpose of securing authorization under Section 164 of Electricity Act, which was considered and approval was 11 W.P. No. 801/2017 granted by the competent authority on 15.09.2016. This fact clearly demonstrates that a subsidiary company is also required to obtain authorization under Section 164 of the Electricity Act and, therefore, the contention of respondent No. 4 that all licenses and permissions granted to respondent No. 4 would be applicable to its subsidiaries is incorrect.
10. Learned counsel for the petitioner further submits that respondent No. 8 company had also filed an application under Section 164 of the Act seeking grant of authorization and a public notice in that regard was also published in the Extra-Ordinary Gazette. Once respondent No. 8 itself applied for grant of authorization under Section 164 of the Electricity Act to confer upon him the powers of telegraph authority under Section 10 of the Telegraph Act, it is incorrect on the part of the respondent to submit that respondent No. 8 does not require authorization under Section 164 of the Electricity Act. In light of the aforesaid, learned counsel for the petitioner submits that the order 12 W.P. No. 801/2017 impugned dated 30.03.2016 is void ab initio, as respondent No. 8 was not having authorization under Section 164 of the Electricity Act.
11. Respondents No. 1, 2 and 7 have filed their reply and in the reply, the respondents have stated that the Special Economic Zone Scheme was introduced by the Government w.e.f. 01.04.2000, with the objectives to provide an internationally competitive and hassle-free environment for earning of foreign exchange, attract Foreign Direct Investment (FDI), generation of employment and to facilitate transfer of technology. The Government of India in the Ministry of Commerce & Industry enacted an Act known as Special Economic Zones Act, 2005 for establishment, development and management of the SEZs. The Rules were also formulated. Under the SEZ Scheme, the petitioner company was granted in- principle approval for development, operation and maintenance of a multi-product Special Economic Zone at Tehsil Sausar, District Chhindwara, vide order dated 13 W.P. No. 801/2017 30.07.2007. This approval was extended from time to time. Thereafter, formal approval was granted in favour of the petitioner company on 08.12.2016 and presently, the developer is in the process of setting up the SEZ. The respondents have further stated that the Development Commissioner is the authority to provide various sanction for SEZ, however, it is inherited only when the SEZ is finally notified. The Subject SEZ has been issued a formal approval for setting up the multi-product SEZ, which is yet to be finally notified. The respondents No. 1, 2 and 7 supports the stand of the petitioner.
12. The respondents No. 2, 3, 6 and 7 have also filed their return and submits that the order dated 30.03.2016 passed by the Collector is in the larger public interest in exercise of powers given under Section 16 and 16(1) of the Indian Telegraph Act, 1948, whereby permission has been granted to respondents No. 4 & 5 to enter and erect Power Grid/electrical lines on the land in question falling within the villages as enumerated in order 14 W.P. No. 801/2017 dated 30.03.2016. The respondents have further denied that before passing the impugned order no opportunity of hearing was given to the petitioner. It has been submitted that the proposed scheme of the Power Grid Corporation was notified by the Ministry of Electricity vide notification dated 08.07.2014 in the Extra-Ordinary Gazette issued by the Central Government on 09.07.2014 and under the provisions of Indian Telegraph Act as well as Electricity Act for erection of electric line/Power Grid line, there is no provision for giving any individual notice to the land owners. It has further been submitted that the petitioner has not placed on record any provision of law under which it could be said that SEZ Project being undertaken by the petitioner is to be given preference or would override project of electrification being undertaken by the Power Grid Corporation. She further relied on the judgement passed by the Apex Court in the case of Power Grid Corporation Vs. Sanctuary Textile and Industries Ltd. and others decided on 14.12.2016.
15 W.P. No. 801/2017
13. Respondents No. 4 and 5 have also filed their reply denying all adverse allegations made in the petition. The respondents have stated that the SEZ area has not been notified even till date. Hence, the land under subject is a bhoomiswami land, therefore, the answering respondents are within their right in construction of transmission lines over the petitioner's land. Respondents No. 4 and 5 have submitted that the respondent-company was incorporated as a Government Company as per Section 617 of the Companies Act and is a corporation owned and controlled by the Central Government as per Section 3 of the Land Acquisition Act. The answering respondents solely deals into the business of interstate transmission of electricity throughout the country and in no circumstances the answering respondents indulge into business of generation or trading of electricity. The project in question is being undertaken by the answering respondents as well as respondent No. 8.
14. As per the policy of the Government of India 16 W.P. No. 801/2017 with effect from 06.01.2011, all Inter State Transmissions (ISTS) Projects, except some specifically identified projects which are determined by the Ministry of Powers are being executed through tariff based competitive bidding and the same have been made mandatory for most of the transmission projects with new expansion. The objective of tariff based competitive bidding is to develop transmission capacities in India and to bring in potential investors from private and public sectors for developing such projects to put to a stage having preliminary survey work, identification of route, preparation of survey report, initiation of process of land acquisition, initiation of process of seeing forest clearance if required etc. and to conduct bidding process. As per the procedure for allocation of Inter State Transmission Projects, the bidding process coordinator invites proposal from interested developers for submission of the bids for report of the scheme for preliminary survey of the work, identification of rout, preparation of survey report etc. 17 W.P. No. 801/2017
15. The Government of India vide notification dated 24.12.2003 authorized the answering respondents to exercise all powers vested in the Telegraph Authority as per the Indian Telegraph Act, 1885. Further vide Gazette Notification dated 08.07.2014 and approval dated 26.11.2014, requisite permission under Section 68 of the Electricity Act were granted to the answering respondents for laying down Gadarwara STPS-Varora 765 KV D/C High Tension Line. The same was also published in the Gazette Notification dated 19.12.2015. After issuance of gazette notification for the construction of the transmission lines, a survey is conducted by the engineers and skilled technicians as appointed by the Government of India for the site which includes detailed survey of adjoining area where the foundation of the towers are to be laid. Apart from that a survey is also conducted of the entire area through which the overhead transmission lines will be passing. Once the survey team is satisfied that all the minimum safety and statutory standards are followed, a 18 W.P. No. 801/2017 survey report is prepared which is sent for approval. Once the survey report of the identified area for constructing the towers are approved, only, thereafter, the foundation stone of the towers for carrying the transmission lines are laid down. The bid submitted by respondent No. 8 was accepted. Respondent No. 8 is a company having 100% holding of the answering respondents and, therefore, all the licenses and permissions granted to the answering respondents are specifically applicable to respondent No. 8-company which was acquired for the sole purpose of laying high tension line from Gadarwara to Varora.
16. The project of respondent-company is also a public project. The transmission of electricity is done for providing electricity to various untouched places of the country wherein the same period of time use of electricity has become necessity. As of date, the answering respondents have completed 90% of the work of laying of towers and drawing of transmission line. The respondents have further submitted that the SEZ is not notified as on 19 W.P. No. 801/2017 date, therefore, provisions of SEZ Act would not be applicable in case of the petitioner. So far as, requirement of taken approval under Section 164 of the Electricity Act is concerned, the respondents have stated that the provisions of Section 164 would be applicable to the private company, however, as the respondent is a government company for transmission of electricity throughout the country, therefore, it would not be applicable in case of the petitioner.
17. Learned counsel for respondents No. 4, 5 and 8 had argued that under Section 11 of the SEZ Act no Development Commissioner has been appointed till date, therefore, the provisions of SEZ Act would not be applicable in the case of the petitioner. It has further been submitted that the SEZ has not yet come into an existence, as the same has not been notified under the Act. It has further been submitted that the approval was given to the petitioner-company only for one year i.e. 2007-2008. The land in question is a barren land. Learned senior counsel 20 W.P. No. 801/2017 for the respondent Nos 4 and 5 further argued that respondent No. 8 is the 100% subsidiary company of respondent No. 5 and respondent No. 5 is having all valid permissions and authorizations issued by the Central Government. He further relied on Section 14 of the Electricity Act.
18. Learned senior counsel has further submitted that during the pendency of the said writ petition, an approval under Section 164 of the Electricity Act has been granted in favour of respondent No. 8 vide Gazette notification dated 11.04.2017, therefore, the contention of learned counsel for the petitioner that respondent No. 8 is having no valid authorization cannot be accepted.
19. I have heard learned counsel for the parties and perused the record. From perusal of the record, it reveals that the petitioner company is a developer company. In the year 2007, an investors meet was organized by the State of Madhya Pradesh and the petitioner was also invited. In furtherance of the said meeting, an M.O.U was executed 21 W.P. No. 801/2017 between the petitioner and the State of Madhya Pradesh by which it was decided to establish a Special Economic Zone (SEZ) at Tehsil Sausar of District Chhindwara. The said Special Economic Zone has to be established in accordance with the Special Economic Zones Act, 2005. The formal approval was granted by the competent authority in favour of the petitioner on 29.08.2016. The said approval is valid for a period of three years. In furtherance of the M.O.U executed between the State Government and the petitioner, the petitioner started the project of establishment of SEZ. For the said purpose, the petitioner acquired an approximately 4,000 acres of land situated at Tehsil Sausar, District Chhindwara to establish the Special Economic Zone. The land includes the private land as well as the Government land. As per the petitioner, the petitioner has paid the compensation to the land owners of which the land has been acquired and also acquired some Government land. The petitioner came to know that in exercise of powers given under Section 16 of the 22 W.P. No. 801/2017 Telegraph Act, respondent No. 6 has passed an order dated 30.03.2016, by which it has been stated that the permission has been granted to respondent No. 8 to lay down the high- tension lines and it has further been submitted that the compensation would be paid for the damages. Being aggrieved by that order, the petitioner has filed the present petition.
20. The main contention of learned counsel for the petitioner is that the order dated 30.03.2016 is void ab initio for the reasons that respondent No. 8 was not having authorizations under Section 164 of the Electricity Act. The Section 164 of the Electricity Act reads as under:-
"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 23 W.P. No. 801/2017 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."
As per the Section 164 of the Electricity Act, it is the Appropriate Government who is the competent authority to grant authorization under Section 164 of the Electricity Act. The appropriate Government is defined under Section 2 (5) of the Electricity Act.
21. In the present case, the work in question is installation of inter-State transmission lines and, therefore, in light of Section 2 (5) of the Electricity Act, it is the Central Government which is the authority competent to grant license under Section 164 of the Electricity Act. The Section 10 of the Telegraph Act provides for the powers of telegraph authority to place and maintain telegraph lines on the posts. The said Section reads as under:- 24 W.P. No. 801/2017
"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 25 W.P. No. 801/2017 compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers.
22. A bare perusal of Section 10 of the Telegraph Act makes it clear that the Section 10 provides for exercise of powers by telegraph authority with regard to two kinds of properties i.e. the property vested in or under control or management of local authority and private property. The Section 10 (c) provides that the telegraph authority shall not exercise the powers in respect of any property vested in or under the control of or management of any local authority without the permission of that authority. However, the Section provides for exercise of powers in case of private properties are involved and as such it is provided that in exercise of powers conferred by Section 10, 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) i.e. private property shall pay full compensation to all persons interested for any damage sustained by them by reason of 26 W.P. No. 801/2017 the exercise of those powers.
23. The Section 16 of the Indian Telegraph Act provides for exercise of powers conferred by Section 10, and disputes as to compensation, in case of property other than that of a local authority.
24. A bare perusal of Section 10 and Section 16 of the Telegraph Act, it is clear that to exercise the powers under Section 10 whether, with or without, the permission of the District Magistrate under Section 16 (1), the authority must be conferred with the power of telegraph authority. The property in question falls within the purview of Section 10(c) of the Telegraph Act and the Development Commissioner happens to be the local authority. So far as, permission and authorization under Section 164 of the Electricity Act is concerned, the respondents in their written has stated that respondent No. 8-company is 100% subsidiary company of respondent Nos. 4 and 5 and respondent No. 4-company is having all valid permissions and licenses in its favour and being a subsidiary company 27 W.P. No. 801/2017 all permissions would be applicable to respondent No. 8 also. This, contention of learned counsel for the respondents is not accepted, as the subsidiary company enjoys an independent and separate legal entity and therefore, it cannot be said that all the licenses and permissions granted to respondent No. 4-company are specifically applicable to respondent No. 8. Further there are 8 more companies which are subsidiaries to respondent No. 4 and amongst 8 such companies, one is Power Grid Jabalpur Transmission Limited Company which is also a subsidiary company of respondent No. 4 and stands on same footing as of respondent No. 8. The Power Gride Jabalpur Transmission Company has also submitted an application for securing authorization under Section 164 of the Electricity Act regarding conferring of powers of Telegraph Authority. Thus, if the contention of respondent No. 4 to the effect that being a subsidiary company all licenses and permissions granted to respondent No. 4 are applicable to the subsidiary company, then there was no 28 W.P. No. 801/2017 requirement for Power Grid Jabalpur Transmission Limited to secure authorizations under Section 164 of the Electricity Act. The application preferred by the Power Gride Jabalpur Transmission Limited was considered and approval was granted on 15.09.2016. This fact clearly demonstrates that a subsidiary company is also required to obtain an authorization under Section 164 of the Electricity Act and, therefore, the contention of learned counsel for the respondents that all licenses and permissions granted to respondent No. 4 will be applicable to its subsidiaries is incorrect. It is also to be noted that respondent No. 8- company has also submitted an application under Section 164 of the Electricity Act seeking grant of authorization under Section 10 of the Telegraph Act.
25. During the pendency of the writ petition, the counsel for respondent No. 8 has placed on record a notification dated 11.04.2017, by which an authorization under Section 164 of the Act has been granted in favour of respondent No. 8.
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26. Learned counsel for the petitioner has also argued that the said authorization is not issued by the competent authority, however, whether the authorization issued under Section 164 of the Act is valid or not is a separate cause of action and the petitioner can challenge it before the appropriate forum.
27. Thus, from the aforesaid facts, it is clear that respondent No. 8 was not having authorization under Section 164 of the Electricity Act on the date when the impugned order dated 30.03.2016 has been passed, but this question has now become redundant as during the pendency of the writ petition, the authorization under Section 164 of the Act has been granted in favour of respondent No. 8, therefore, now respondent No. 8 can proceed with the work in question.
28. Accordingly, the writ petition is disposed of.
(Ms.Vandana Kasrekar) Judge ashish