Telangana High Court
M/S. Snm Developers Private Limited vs Union Of India on 29 April, 2022
Author: G. Radha Rani
Bench: G. Radha Rani
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Dr.GRR,J
WP No.8333 of 2022
HON'BLE Dr. JUSTICE G. RADHA RANI
WRIT PETITION No.8333 of 2022
ORDER:
This writ petition is filed by the petitioner questioning the action of the respondents No.1 to 3 in permitting the 4th respondent to lay overhead electricity transmission lines over and above property of the petitioner company in Sy.Nos.68, 68/A and 69 at Garvipally Village, Talakondapally Mandal, Mahaboobnagar District, as arbitrary and contrary to Articles 14, 21 and 300-A of the Constitution of India and the Electricity Act, 2003.
2. Heard the learned counsel for the petitioner and the learned counsel for the 4th respondent.
3. The learned counsel for the petitioner submitted that the petitioner was the owner and possessor of the lands in Sy.Nos.68, 68/A and 69 of Garvipally Village, Talakondapally Mandal, Mahaboobnagar District, total admeasuring 16.10 gts. The petitioner purchased the same vide three registered sale deeds dated 19.09.2008. After obtaining due approval and permission from the statutory authorities, the petitioner developed the land into well laid site plots by forming a layout. The subject property had 280 plots with an average plot size of 200 sq. yds.
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4. Subsequent to formation of layout, the plots had been sold by the petitioner to various third parties. The remaining unsold plots in the layout were in the possession and enjoyment of the petitioner being the developer of the layout. The market value of the concerned area was about Rs.15,000/- per sq.yard. While the matter stood thus, in the last week of January 2022, some unknown persons came over to the subject property and carried out reccee and survey. The staff of the petitioner company immediately rushed to the spot on being informed by their watchman / security guard and came to know that the 4th respondent was conducting a survey for laying overhead electricity line based on the licence issued by the respondents No.1 and 2. No prior notice was issued to the petitioner with regard to laying of any transmission line by the respondents. The petitioner company was not even heard in the matter as to the alignment of the transmission line. The transmission line which was proposed to be laid was cutting across the layout whereby about 67 plots including park area of about 240 sq. yards, were being affected. The corridor of the overhead transmission line through the subject property would clearly snatch away the property rights of the petitioner company. No compensation was paid or much less proposed to be paid by the petitioner company. No personal hearing was accorded to the petitioner company to submit their objections. The transmission line proposed to be laid was a 765 KV overhead line. Section 68 of the Electricity Act, 2003 would prescribe that approval of the appropriate 3 Dr.GRR,J WP No.8333 of 2022 Government was required before laying overhead line. No approval from the petitioner was obtained by the 4th respondent under Section 68 of the Electricity Act. Under Rule 3(a) of the Works of Licensees Rules, 2006, prior consent of the occupier or owner of the land was necessary for the purpose of laying overhead transmission line. The 4th respondent had not issued any notice under Rule 7 (2) of the Works of Licensees Rules, 2006. By virtue of laying the overhead transmission line, the utility of the land would be completely lost as no structure or building could be built underneath such high tension overhead transmission lines. It would amount to compulsory acquisition of the lands without following the due procedure established by law and without payment of compensation. The 1st respondent had not followed the provisions of the Telegraph Act, 1885 for payment of compensation to the petitioner and other plot owners. The action of the respondents in laying the overhead transmission lines over the lands of the petitioner was illegal and arbitrary and prayed to allow the writ petition.
5. An ex parte interim order of Status Quo was granted by this Court vide order dated 16.02.2022 in I.A No.1 of 2022.
6. The 4th respondent filed counter affidavit contending that the writ petition was neither maintainable in law nor on the facts and deserved to be dismissed in limini. He contended that establishment of overhead transmission 4 Dr.GRR,J WP No.8333 of 2022 line was effectively regulated by the provisions of the Electricity Act, 2003 and under Telegraph Act, 1885 and the Rules made thereunder. The Government of India, Ministry of Power, through Central Electricity Authority had provided prior approval to the 4th respondent under sub-Section (1) of the Section 68 of the Electricity Act, 2003 for construction of transmission line project "Additional Inter-Regional AC link for import into Southern Region i.e. Warora-Warangal and Chilakaluripeta-Hyderabad-Kurnool 765 KV Link" vide reference No.52/11(PFC, REC)/2015-psp&pa-II/310-311, dated 22.03.2016. The Central Electricity Regulatory Commission awarded transmission licence in favour of the 4th respondent under Section 14 of the Electricity Act, 2003 vide Licence No.44/Transmission/2016/CERC, dated 29.09.2016, on Build, Own, Operate and Maintain (BOOM) basis. The 4th respondent was entrusted with implementation of the transmission line as a transmission licensee. Based upon the said approvals, a public notice was issued in the local daily newspapers, namely, Surya (Telugu), Loksatta (Marathi) Hans India (English) dated 22.11.2016 informing the general public regarding the same and inviting objections. It was clearly mentioned in the public notice that the transmission line would pass through over, around and between the villages, towns and cities within the states of Maharashtra, Telangana and Andhra Pradesh and names of such villages, towns and cities were also provided in the public notice. It was also specified in the notice that copy of route alignment was available in the 5 Dr.GRR,J WP No.8333 of 2022 office of the 4th respondent and public were asked to make representations within two months from the date of publication of the notice dated 22.01.2017 in writing. The entire length of the transmission line traveling through various Districts of Maharashtra, Telangana and Andhra Pradesh was approximately 888 kilometers. The petitioner had not filed any objection or representation with the office of the 4th respondent in terms of the public notice.
6.1. Learned counsel further contended that the 4th respondent was not acquiring any part of the land or any interest or title therein in the land property of the petitioner. As a transmission licensee, he was only using the right of way on the land property for laying the said transmission line. The provisions of Rule-3 of Works of Licensee Rules, 2006 were not applicable in view of the provisions of Section 164 of the Electricity Act, 2003. The 4th respondent filed an application dated 17.07.2018 towards the right of way for laying transmission line. The Collector, Ranga Reddy District vide letter No.G1/2158/2018 dated 25.02.2019 by taking into consideration prevailing market value of the lands in the District, fixed the compensation @ Rs.4,50,000/- for per each tower base area. The respondents approached the petitioner time and again for issuance of notice, but the petitioner refused to accept the same. The compensation towards land and crop could not be disbursed for not producing the documents. The petitioner was entitled for compensation for the right of way in accordance with law and it was always 6 Dr.GRR,J WP No.8333 of 2022 open for the petitioner to raise dispute before the District Judge with respect to the sufficiency of compensation under sub-Section 3 of Section 6 of the Telegraph Act, 1885.
6.2. He further submitted that the construction work relating to casting of foundation for all the transmission towers preceding and succeeding the location No.25/1 had been completed by the respondent. The foundation work of 94% of the total transmission towers under the line had been completed throughout the project. If the ongoing activity of erecting the tower at location No.25/1 was stalled, it would tantamount to stalling the whole project, which would involve transmission of 3000 MW of power through the States of Maharashtra, Telangana and Andhra Pradesh. It would also affect the supply of power to every State including Telangana and Andhra Pradesh. More than 70% of the total project was completed till date. The project was required to be commissioned by October, 2022. The project once completed, would ease the power issues in the southern States and would provide stability and strength to power grid of India. He further submitted that he was undertaking construction of the said transmission line project after obtaining statutory approval and complying the due process of law and prayed to vacate the interim orders passed in I.A. No.1 of 2022 on 16.02.2022.
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7. Perused the record. Learned counsel for the respondent contended that the writ petition was not maintainable, existence of a legal right for performance of a statutory duty by the authorities against whom mandamus is sought was essential for issuing a writ of mandamus and relied upon the judgment of the Hon'ble Apex Court in Oriental Bank of Commerce v. Sunder Lal Jain1 and in State of Uttar Pradesh and another v. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti and others2.
8. The Hon'ble Apex Court in Oriental Bank of Commerce case (1 supra) had extracted the principles on which a writ of mandamus would lie, as follows:
"11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr. :
Note 187-- Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duly to which the party applying for the writ is entitled of legal right to have performed.
Note 192 --Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and 1 2008 (2) SCC 280 2 2008 (12) SCC 675 8 Dr.GRR,J WP No.8333 of 2022 specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and Tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.
Note 196-- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the Court, subject always to the well-settled principles which have been established by the Courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and Judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the Court may, and should, look to the larger public interest which may be concerned - an interest which private litigants are apt to over-look when striving for private ends. The Court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances.
Note 206.--.......... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action."
9. Therefore, in order to issue a writ of mandamus, there must be legal right that the party asking for the writ of Mandamus to compel performance of some statutory duty cast upon the authorities.
10. The status quo orders were issued by this Court considering the submissions of the learned counsel for the petitioner that the 4th respondent without obtaining prior consent of the petitioner and without following the procedure contemplated under the Electricity Act, 2003 and the Works of 9 Dr.GRR,J WP No.8333 of 2022 Licensee Rules, 2006 was laying the overhead transmission lines through the petitioner's property. On a perusal of the provisions of the Electricity Act, 2003, Section 14 pertains to Grant of licence. It reads as under:
"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:"
Section 68 of the Electricity Act, 2003 pertains to provisions relating to overhead lines. It reads as under:
"Section 68. (Provisions relating to Overhead lines): ----
(1) An overhead line shall, with prior approval of the Appropriate Government, be installed or kept installed above ground in accordance with the provisions of sub-section (2). (2) The provisions contained in sub-section (1) shall not apply-
(a) in relation to an electric line which has a nominal voltage not exceeding 11 kilovolts and is used or intended to be used for supplying to a single consumer;
(b) in relation to so much of an electric line as is or will be within premises in the occupation or control of the person responsible for its installation; or
(c) in such other cases, as may be prescribed. (3) The Appropriate Government shall, while granting approval under sub-section (1), impose such conditions (including conditions as to the ownership and operation of the line) as appear to it to be necessary.
(4) The Appropriate Government may vary or revoke the approval at anytime after the end of such period as may be stipulated in the approval granted by it 10 Dr.GRR,J WP No.8333 of 2022 (5) Where any tree standing or lying near an overhead line or where any structure or other object which has been placed or has fallen near an overhead line subsequent to the placing of such line, interrupts or interferes with, or is likely to interrupt or interfere with, the conveyance or transmission of electricity or the accessibility of any works, an Executive Magistrate or authority specified by the Appropriate Government may, on the application of the licensee, cause the tree, structure or object to be removed or otherwise dealt with as he or it thinks fit. (6) When disposing of an application under sub-section (5), an Executive Magistrate or authority specified under that sub-
section shall, in the case of any tree in existence before the placing of the overhead line, award to the person interested in the tree such compensation as he thinks reasonable, and such person may recover the same from the licensee."
Section 164 of the Electricity Act, 2003 provides with Exercise of Powers of Telegraph Authority in certain cases. It reads as under:
"Section 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, 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."
11. Thus, as per the provisions of Section 164 of the Electricity Act, 2003, the appropriate government may by order in writing confer upon the licensee any of the powers which the Telegraph Authority possesses under the Indian Telegraph Act, 1885 for placing of electric lines or electric plan for the 11 Dr.GRR,J WP No.8333 of 2022 transmission of electricity. The learned counsel for the 4th respondent submitted that the Government of India, Ministry of Power through Central Electricity Authority vide order dated 27.06.2017 published in Gazette of India No.1933, dated 10.07.2017 conferred the powers upon Warora Kurnool Transmission Limited which the Telegraph authority possessed under the Indian Telegraph Act, 1885 with respect to placing of Telegraph lines and posts for the purpose of telegraph established or maintained by the Government or to be established or maintained for installing the above mentioned interstate transmission line for interstate transmission of electricity.
12. Learned counsel for the 4th respondent contended that the provisions of Rule-3 of Works Licensee Rules, 2006 were not applicable in view of Section 164 of the Electricity Act, 2003 as per the judgment of the Hon'ble Apex Court in Power Grid Corporation of India Limited v. Century Textiles & Industries Limited3, wherein it was held that:
"21) It is not in dispute that in exercise of powers under the aforesaid provision, the Appropriate Government has conferred the powers of Telegraph Authority vide notification dated December 24, 2003 exercisable under Indian Telegraph Act, 1885 upon the Power Grid. It may also be mentioned that a Central Transmission Utility (CTU) is a deemed licensee under the second proviso to Section 14 of the Electricity Act, 2003.
Power Grid is a Central Transmission Utility and is, therefore, a deemed licensee under the Electricity Act, 2003. This coupled with the fact that Power Grid is treated as Authority under the Indian Telegraph Act, 1885, it acquires all such powers which 3 2017 (5) SCC 143 12 Dr.GRR,J WP No.8333 of 2022 are vested in a Telegraph Authority under the provisions of the Indian Telegraph Act, 1885 including power to eliminate any obstruction in the laying down of power transmission lines. As per the provisions of the Indian Telegraph Act, 1885, unobstructed access to lay down telegraph and/or electricity transmission lines is an imperative in the larger public interest. Electrification of villages all over the country and availability of telegraph lines are the most essential requirements for growth and development of any country, economy and the well-being/progress of the citizens. The legislature has not permitted any kind of impediment/ obstruction in achieving this objective and through the scheme of the Indian Telegraph Act, 1885 empowering the licensee to lay telegraph lines, applied the same, as it is, for laying down the electricity transmission lines."
13. He further relied upon the judgment of the High Court of Andhra Pradesh at Hyderabad in Sri Sai Surya Gardens (P) Ltd. V. Union of India (UOI) and others4, wherein it was held that:
"6. It is not the case of the petitioner that he is being deprived of the property. His case is that he is likely to suffer damages since he is deprived of the use of the land profitably. Challenge to the provisions is on the ground that the same are ultra vires the provisions of the Articles 14, 21 and 300-A of the Constitution of India. It is stated that the Petitioner's right to enjoy the property profitably has been deprived of by the unilateral exercise of Power and exercise of such an unbridled power is bad in law.
7. Right to property is not a fundamental right. The only right which is available to the citizens now is Article 300-A that no person shall be deprived of his property save by authority of law. As noticed, under the provisions of The Electricity (Supply), Act, 1948 read with Indian Telegraph Act, 1885, the petitioner may pray for payment of compensation.
8. A Full Bench of Kerala High Court in Bharat Plywood and Timber Products Private Limited v. Kerala State Electricity 4 2004 (4) ALD 291 13 Dr.GRR,J WP No.8333 of 2022 Board, Trivendram, (FB), after considering the legality and validity of the provisions of the Indian Electricity Act, 1910 challenged on the ground that the same are discriminatory held that since Section 51 of said Act empowered the authority to exercise powers available under the provisions of Chapter-III of the Indian Telegraph Act, 1885, the provisions are not open for challenge on the ground of discrimination. We are in full agreement with the view expressed by the Full Bench and following the said Full Bench decision of Kerala High Court, we hold that the ground of discrimination raised in the instant case falls to ground. Since the respondent-Corporation can exercise enough power to lay transmission lines across the property of the petitioner, except claiming compensation petitioner cannot validly challenge the action of the Board on the ground that it affects his valuable rights."
14. He further relied on the judgment of the High Court of A.P. in K. Subba Raju v. Executive Engineer, TLC Division, APTRANSCO and others5, wherein it was held that:
11. The provisions of the Works of Licensees Rules, 2006 made under Section 67(2) of the Electricity Act, 2003 are in pari materia to Section 12 of the repealed Indian Electricity Act, 1910. Admittedly the Works of Licensees Rules, 2006 are applicable only where the works have been taken up by the licensee under Section 67(1) of the Electricity Act, 2003. As clarified in G.V.S. Rama Krishna's case (supra), Section 67(1) of the Electricity Act, 2003 as well as the rules made under Section 67(2) govern the field only in the absence of an order under Section 164 of the Electricity Act, 2003. In a case where an order is passed by the appropriate government in exercise of the powers under Section 164 of the Electricity Act, 2003, the licensee is competent to exercise the powers which the Telegraph Authority possessed under the Indian Telegraph Act, 1885 with respect to the placing of telegraphic lines and posts for the purpose of a telegraph established by the Government.
Since the powers under Section 10 of the Indian Telegraph Act, 1885 can be exercised without acquiring the land in question, once an order is passed by the appropriate government under Section 164 of the Electricity Act, 2003, the public officer, 5 2010 (4) ALD 358 14 Dr.GRR,J WP No.8333 of 2022 licensee or any other person engaged in the business of supplying electricity shall be entitled to proceed with the works of placing the electric lines without acquiring the land in question."
15. In the judgment of the High Court of Andhra Pradesh in Bommi Reddy Narasimha Reddy and others v. Power Grid Corporation of India Ltd. and others6, it was held that:
"28. On the above analysis, this Court finds that there is no provision in the Act of 1885 which mandates prior notice or an opportunity of hearing to be provided to the owner/occupier of a premises affected by the laying of lines or posts and therefore, there is no question of such owner/occupier being put on notice or demanding an opportunity of hearing before grounding of the scheme. Section 17 postulates that such a right would arise only after laying of the lines or posts and upon the failure of the authority concerned to act upon a requisition to remove or relocate such lines or posts etc.
29. Insofar as Section 164 of the Act of 2003 is concerned, the judgments of this Court in G.V.S. Rama Krishna's case (supra) and K. Subba Raju's case (supra), put it beyond doubt that while exercising powers thereunder, the A.P. TRANSCO would not be required to either initiate acquisition of land or obtain consent from the owner. It was also held that in such a situation, Section 67 of the Act of 2003 and the Rules of 2006 framed thereunder would have no application. This Court respectfully agrees."
16. The above judgments would make it clear that no prior notice under Rule 7(2) of Works Licensee Rules, 2006 was required to be given to the petitioner or no procedure for acquisition of land need to be initiated or consent of the owner need to be obtained as per Section 164 of the Electricity Act, 2003 and the petitioner was only entitled to the right as a 'right of user' as per Section 6 2014 (1) ALD 697 15 Dr.GRR,J WP No.8333 of 2022 10 (b) of the Indian Telegraph Act, 1885 and was entitled for compensation as fixed by the 3rd respondent and if aggrieved by the same, he can challenge it before the District Judge under sub-Section (3) of Section 16 of the Indian Telegraph Act, 1885. Learned counsel for the 4th respondent further submitted that the compensation as fixed by the 3rd respondent would be instantly released to the petitioner upon furnishing his bank account details.
17. Considering the submissions of the learned counsel for the 4th respondent that the foundation work of 94% of the total transmission towers was completed throughout the project and the construction work related to casting of foundation for all the transmission towers preceding and succeeding the location No.25/1 was also completed by the respondent and due to filing of this writ petition and grant of interim orders, the whole project was stalled, it is considered fit to dismiss the writ petition by vacating the interim order granted on 16.02.2022 in I.A. No.1 of 2022.
18. In the result, the Writ Petition is dismissed. The interim order granted on 16.02.2022 in I.A. No.1 of 2022 is vacated. No order as to costs.
19. Miscellaneous Petitions pending, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J April 29, 2022 KTL