Kerala High Court
Minet Mathew vs The Power Grid Corporation Of India Ltd on 30 September, 2020
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
WEDNESDAY, THE 30TH DAY OF SEPTEMBER 2020/8TH ASWINA, 1942
W.P(C).No.18993 OF 2020(Y)
PETITIONER:
MINET MATHEW
AGED 36 YEARS
S/O.MATHEW,PULIKKATHAZHE HOUSE,
KANJIRAMKULAM.P.O,MUNDOOR VILLAGE,
PALAKKAD DISTRICT.
BY ADVS.SRI.M.SASINDRAN
SRI.S.SHYAM KUMAR
RESPONDENTS:
1 THE POWER GRID CORPORATION OF INDIA LTD.,
YELAHANKA 400/220 KV SUB-STATION,NEAR RTO DRIVING TEST
TRACK,SINGANAYAKANAHALLI,
OFF YELAHANKA-DODDBALLAPUR ROAD,
YELAHANKA HOBLI,BANGALORE-560 064
REPRESENTED BY ITS DEPUTY GENERAL MANAGER.
2 THE DISTRICT COLLECTOR/DISTRICT MAGISTRATE,
PALAKKAD, PALAKKAD DISTRICT-678001.
R1 BY ADV. SRI.MILLU DANDAPANI
R2 BY SRI.A.RAVIKRISHNAN, GOVT. PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 25-09-2020, THE COURT ON 30-09-2020 DELIVERED THE
FOLLOWING:
W.P.(C).No.18993/2020 :: 2 ::
JUDGMENT
The petitioner along with her sisters had purchased land extending to 12 acres in Kuzhanjampara Village, Palakkad District, for the purposes of establishing a coconut plantation. It is stated that the property, at the time of procurement by the petitioner, was an undeveloped property that was earlier used as a brick manufacturing unit, and after purchase, the petitioner had put in strenuous efforts to make the property suitable for coconut plantation. It is further stated that after planting the land with hybrid coconut saplings, the petitioner had constituted a company by name 'Coconectar Farms' for manufacturing 'Neera' products and attempts were being made to commercialize the same.
2. In the writ petition, the petitioner is aggrieved by the steps initiated by the 1st respondent Corporation for drawing of an electric transmission line through the property of the petitioner. It is stated that, by Ext.P1 notice dated 28.6.2020, issued under the Electricity Act, 2003 read with the Indian Telegraph Act, 1885, the petitioner was informed that a W.P.(C).No.18993/2020 :: 3 ::
portion of the 320kV HVDC, Pugalur - Thrissur line (Kerala portion) would pass through the property belonging to the petitioner, and that, while all care would be taken to minimise the damage to the standing crops and trees in the petitioner's property, the respondents would compensate the petitioner for the damages resulting from the cutting of trees and standing crops for the purposes of maintaining the right of way that the respondents claimed over the property of the petitioner in connection with the drawing of the line. The petitioner preferred Exts.P3 and P4 objections before the District Collector and also suggested an alternate route for the transmission line to pass, as evidenced by Ext.P2 produced along with the writ petition. The District Collector conducted a hearing on 7.9.2020 when the petitioner appeared before him and requested him to conduct a site inspection so as to understand the nature of the land, the damage that would be caused to the crops in the land and the prejudice that would be caused to the petitioner through the drawing of the electric line through her property. It would appear that, at the instance of the District Collector, a site inspection was carried out by the representatives of the 1 st respondent Corporation and Ext.P5 report submitted before the District Collector. Although the petitioner submitted Ext.P6 objection to the said report furnished before the District Collector by the 1st respondent Corporation, disputing the factual findings in the said report, and also opining that the District Collector ought to have personally inspected the site without having relegated the inspection W.P.(C).No.18993/2020 :: 4 ::
to the representatives of the 1 st respondent Corporation, the District Collector, by Ext.P7 order, overruled the objections, and permitted the 1 st respondent Corporation to draw the line through the property of the petitioner. In the writ petition, Ext.P7 order of the District Collector is impugned inter alia on the contention that the District Collector, while passing Ext.P7 order, considered irrelevant aspects such as the extent of work already completed by the 1st respondent in connection with the drawing of the line, and also failed to consider the feasibility of the alternate route suggested by the petitioner, which, according to the petitioner, would have minimised the damage/costs in connection with the drawing of the line. It is further contended that the District Collector did not exercise the discretion conferred on him under Section 16 of the Indian Telegraph Act, and had mechanically proceeded to accept the report submitted before him by the 1st respondent Corporation.
3. A counter affidavit has been filed on behalf of the 1 st respondent Corporation, wherein, Ext.P7 order of the District Collector is sought to be justified for the reasons stated therein. With particular reference to Ext.R1(e) Google sketch showing the alignment of the transmission line, especially over the petitioner's property, it is stated as follows at paragraphs 11 to 16 of the counter affidavit:
W.P.(C).No.18993/2020 :: 5 ::
"11. It is humbly submitted that, while selecting a route for any transmission line, many factors such as Geographical conditions, populated areas and towns, proximity to the villages, dwelling units, permanent roads, Forest areas, Railway lines, National Highways, State Highways, Power lines, P&T line, River crossings, Aerodromes, Places of worship, Marshy lands etc. are to be considered. Compliance of various statutory rules & regulations and other norms in vogue is essential. It is prudent that while selecting a route, prime importance is always given to avoid the dwelling units/highly populated areas etc., without compromising on the technical requirements in totality. It is also a fact that limited flexibility for positioning of towers due to fast urbanization taking place particularly in Kerala which is posing great difficulty for placing transmission line towers.
12. It is submitted that while fixing this transmission line route, only the most techno-economically feasible route is chosen causing least damage considering the entire length after complying with the statutory clearances. The transmission line takes the most techno-economically feasible route avoiding places of inhabitation, worship and available corridors to the maximum possible extent.
13. It is submitted that, out of 183 tower locations in Kerala section of the line, all 183 tower erections have been completed and Conductor Paying out part of Stringing is also completed for the entire line length of about 65 KMs including the petitioner's land. (i.e) 45 KMs final sag & 20 KMs paying out/rough sag completed. Final sagging works in 20 KMs is nearing completion and the Transmission Line is scheduled for charging by the end of this September' 2020.
W.P.(C).No.18993/2020 :: 6 ::
14. Commissioning of this - much needed -
transmission line would cater to the power requirements of the State of Kerala/requirements of its people and industries as this add up 2000 mega watt uninterrupted quality power from Raigarh (in Chathisgarh). This Respondent Corporation is working round the clock to complete the said project despite the pandemic threat.
15. The above writ petition preferred by the petitioner now challenged Ext.P7 order issued by the District Collector who heard the petitioner as well as the respondent Corporation on 07.09.2020.
The petitioner preferred objection before this Respondent Corporation vide Ext.P3. Similarly they also preferred Ext.P4 objection as per the statute before the 2nd Respondent.
As the request of the Petitioner and as directed by the 2nd Respondent during the enquiry on 07/09/20, a joint Inspection was conducted on the same day (i.e) 07/09/20 and Ext.P5 submitted on 08/09/20.
Ext.P5 enumerates the difficulty and the reasoning why this 1st Respondent cannot heed to the request preferred by the petitioner with the completion of all 183 Tower Foundations and with the completion of all 183 tower erections which includes the preceding and succeeding towers to the petitioner's property (i.e) as on the date of inspection.
16. It is true that the petitioner's property is about 12 acres of land where coconut trees are cultivated. As per standard cultivation procedure, considering @ 70 to 80 trees per acre, about 900 trees are expected in the garden. For drawing of the line through the petitioner's property only about 49 coconut trees have to be cut and removed. The petitioners have suggested an alternate route W.P.(C).No.18993/2020 :: 7 ::
before the 2nd Respondent. However, the same is not feasible because 85/0 is an angle type tower which turns to left thus avoid the crossing through the centre of the petitioner's property. Maximum utilization of the puramboku land on river bed is done and alignment is reaching 85/0 to 85/1. Thus by providing angle at 85/0 and reaching at 86/0, two big coconut gardens are saved except for few trees which belongs to the petitioners' property. Thus the 2nd respondent have taken into account of these aspects by passing Ext.P7 order. Thus there is no reason to interfere at this juncture by this Hon'ble Court."
4. At the time of hearing, the learned counsel for the petitioner submitted, relying on the Division Bench judgments of this Court in Balakrishna Pillai v. Additional District Magistrate, Alappuzha and Others - [2009 (1) KHC 311 (DB)] as also Valsamma Thomas v.
Additional District Magistrate - [1997 (2) KLT 979] that the District Collector was obliged, in terms of Section 16 of the Indian Telegraph Act, to exercise his discretion judicially after hearing the parties, and after taking such evidence as is required with regard to the objections raised. It is, in particular, pointed out that the function of the District Collector under Section 16 is not merely administrative, but judicial, and hence, any order passed by him must reflect a consideration of the objection of the petitioner as also a consideration on technical aspects such as the alternate route availability indicated by the petitioner. It is the petitioner's case that, in W.P.(C).No.18993/2020 :: 8 ::
Ext.P7 order, such a consideration is not to be found, and for the said reason, the order is vitiated.
5. Per contra, the learned counsel for the 1 st respondent Corporation would rely on the decisions in Managing Director, Ramakrishna Poultry Private Limited v. R. Chellappan and Others - [(2009) 16 SCC 743] and Power Grid Corporation of India Limited v. Century Textiles and Industries Limited and Others - [(2017) 5 SCC 143] to contend that the consideration by the District Collector in Ext.P7 order was in accordance with the discretion conferred on him under Section 16 of the Indian Telegraph Act, and it is not for the District Collector to second-guess the technical reports given by experts in the field, and to mechanically suggest an alternate route for drawing of the transmission line. The learned counsel for the 1st respondent would also emphasise on the extent of work that has already been completed in the areas leading up to the petitioner's property, and beyond the said property, to point out that a change in alignment of the transmission line vis-a-vis the petitioner's property at this stage would adversely affect the general alignment of the transmission line over the larger area that it covers within the territorial limits of the State.
W.P.(C).No.18993/2020 :: 9 ::
6. I have heard the learned counsel for the petitioner, the learned Standing counsel for the 1st respondent Corporation as also the learned Government Pleader for the 2nd respondent.
7. On a consideration of the rival submissions, and on a perusal of the Scheme under the Electricity Act read with the Indian Telegraph Act, I am of the view that Section 10 of the Indian Telegraph Act, 1885 empowers the telegraph authority to place and maintain a telegraph line under, over, along, or across, and posts in or upon any immovable property. Under Section 10(b), the Central Government is empowered to lay down telegraph lines through the property of a person and while doing so, it does not acquire any right other than that of a user in the property. In terms of Section 10(d) of the Indian Telegraph Act, the telegraph authority is also obliged to ensure that it causes as little damage as possible, and further, it is obliged to pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of the statutory powers. In the instant case, the 1st respondent has been conferred with the powers of a telegraph authority under Part III of the Indian Telegraph Act, 1885 by a Notification dated 24.12.2003 of the Ministry of Power, Government of India in accordance with Section 164 of the Electricity Act, 2003. In exercise of the said power, the construction of the 320kV HVDC Pugalur - Thrissur W.P.(C).No.18993/2020 :: 10 ::
transmission line was taken up by the 1 st respondent Corporation to import 2000MW of quality power to the Kerala Grid. It is stated that 6000MW power will be directly imported from Raigarh (in Chathisgarh) to Pugalur (in Tamil Nadu) through a 800kV HVDC system. Out of the 6000MW power that is imported, 4000MW is earmarked as Tamil Nadu's share and 2000MW is Kerala's share. Accordingly, from Pugalur, 2000MW power is to be transmitted to Kerala through the 320kV HVDC Pugalur - Thrissur transmission line which covers a distance of 140km of overhead line and about 30km of underground cable. It is stated that out of the 140km of overhead line, 75km passes through Tamil Nadu State and 65km falls within Kerala State. The overhead line terminates at a transition station at Vadakkancherry in Palakkad District in Kerala and from there, the underground cable is laid through the utility space available on the banks of the National Highway, and the said underground cable connects the transition station with the HVDC substation at Thrissur. The manner in which the 1st respondent is executing the project is detailed in the counter affidavit as follows:
"(i) A Straight line called "BEE LINE" is drawn from sending end substation to receiving end substation.
(ii) POWERGRID Engineers go along the "BEE LINE" as nearly as possible, avoiding settlements, Railway line, Road crossing, River, W.P.(C).No.18993/2020 :: 11 ::
Forest etc. (That is, a walk over survey is conducted).
(iii) Propose three alternate routes to find out which is the most economically and technically feasible route (During this process, approximate Angle points are also fixed using Global Positioning System (GPS)).
(iv) The above exercises are shown in Topographical Maps issued by Survey of India.
(v) The next stage is whatever is there in the Map is transferred to the ground viz., marked in the ground.
(vi) The angle points are fixed on ground by using Global Positioning System (GPS) instruments.
(vii) A Detailed survey is conducted. For every 20 meters, ground level measurement is taken & Geographical details are collected and line peg mark fixed.
(viii) A profile is made on the above details. Normally, the space between two towers is 400 meters. The span will depend on the ground level, road, railway track, river and settlements and technical aspects.
(ix) Then the tower schedule is prepared.
(x) On due approval of the above, check survey is
done.
(xi) Exact tower point is fixed with the help of survey
instrument. [It is only at this stage, we know the exact survey number over which the tower is to be located].
(xii) After fixing the tower location, the details as to W.P.(C).No.18993/2020 :: 12 ::
the ownership and the person who is the owner of the land are obtained from the revenue authorities."
8. It is also significant to note that out of the 183 tower locations in the Kerala section of the transmission line, the erection of towers has been completed, and the work of conductor paying/stringing has also been completed for the entire length of 65kms including over the petitioner's land. The final sagging works in 20kms is stated to be nearing completion and the 1st respondent hopes to charge the transmission line by the end of this month. It is in the above factual backdrop that the objection of the petitioner before the District Collector has to be analysed. As will be recalled, the objection of the petitioner is essentially with regard to the transmission line passing above her coconut plantation, and her suggestion before the District Collector was to take the transmission line through an alternate route that would avoid her property. The report submitted by the 1st respondent Corporation before the District Collector opined that the alternate route suggested by the petitioner was not feasible since tower 85/0 was an angle type tower which turns to the left so as to avoid the drawing of the transmission line through other parts of the property belonging to the petitioner and her sisters. The present alignment is stated to have been adopted so as to ensure maximum utilisation of the puramboke land on the W.P.(C).No.18993/2020 :: 13 ::
river bed while the alignment proceeds from tower 85/0 to 85/1. It is stated that while providing the angle at tower 85/0, the respondent Corporation was able to avoid two large coconut gardens, and align the transmission line in such a way that only the few trees in the petitioner's property would have to be cut and removed to maintain the corridor. In Ext.P7 order of the District Collector, the above facts were taken note of, and it was seeing the practicality of the said alignment suggested by the respondent Corporation that permission was given to the 1 st respondent to draw the transmission line in accordance with the said alignment. The question then arises as to whether this Court ought to interfere with the exercise of discretion by the District Collector, as borne out in Ext.P7 order. This Court had occasion to examine the said issue in Indu Chandran v. Kerala State Electricity Board Ltd. - [2017 (3) KLT 420], when an order passed by the District Magistrate in exercise of the discretion conferred upon him under Section 16 was called in question before this Court. While dismissing the said writ petition, this Court observed that inasmuch as Section 16 of the Indian Telegraph Act contemplates the exercise of a discretion by the District Magistrate, a judicial review of the decision of the District Magistrate could be resorted to only in accordance with the well settled parameters that inform the exercise of the said power. Thus, this Court would be justified in interfering with the discretion exercised by the District Magistrate only in cases of established illegality, irrationality, procedural impropriety or where W.P.(C).No.18993/2020 :: 14 ::
the decision is found to be unreasonable in the 'Wednesbury' sense or vitiated by mala fides, either factual or legal. While the possibility of this Court undertaking a merits review of the decision of the District Magistrate was also recognised, it was clarified that such instances must necessarily be rare and confined only to cases where such legal rights of citizens are breached, the need for protection of which, far outweighs the public interest sought to be attained through the exercise of the discretion. It was further observed that when examining the rationality of the decision, as also the reasonableness of the measure, this Court had to defer to the opinion of experts in the field, and if the decision of the District Magistrate was found to be based on the opinion of the experts, then this Court was not to interfere with the said decision. A similar approach was taken by the Supreme Court in Power Grid Corporation of India Limited v. Century Textiles and Industries Limited and Others - [(2017) 5 SCC 143], where the fact that, it was unfeasible to change the alignment at a time when almost the entire work had already been completed by the time the writ petitioner protested against the move for drawing the line, was taken into consideration to reject the prayer of the writ petitioner to draw the line through an alternate route.
In the light of the law laid down through the judgments referred W.P.(C).No.18993/2020 :: 15 ::
above, I am of the view that the petitioner has not made out a case warranting an interference with Ext.P7 order of the District Collector in these proceedings under Article 226 of our Constitution. The private interests urged by the petitioner must yield to the larger public interest that is sought to be served through the drawing of the transmission line in question. I do not find Ext.P7 order of the District Collector to be vitiated on account of any erroneous exercise of discretion that would prejudice any overriding right or interest of the petitioner that is superior to the public interest that is sought to be achieved through the drawing of the transmission line in question. The writ petition, in its challenge to Ext.P7 order, therefore fails, and is accordingly dismissed.
Sd/-
A.K.JAYASANKARAN NAMBIAR
JUDGE
prp/
W.P.(C).No.18993/2020 :: 16 ::
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE NOTICE DATED 28.6.2020.
EXHIBIT P2 A TRUE COPY OF THE SKETCH SHOWING THE
ALTERNATE ROUTE SUGGESTED BY THE
PETITIONER.
EXHIBIT P3 A TRUE COPY OF THE OBJECTION MADE BEFORE
THE 1ST RESPONDENT
EXHIBIT P4 A TRUE COPY OF THE OBJECTION MADE BEFORE
THE 2ND RESPONDENT
EXHIBIT P5 A TRUE COPY OF THE REPORT SUBMITTED BY THE
OFFICIALS OF THE FIRST RESPONDENT BEFORE
THE DISTRICT COLLECTOR DATED 08.09.2020.
EXHIBIT P5(A) A TRUE COPY OF THE AREAL MAP OF THE LINE
ROUTE.
EXHIBIT P6 A TRUE COPY OF THE OBJECTION SUBMITTED BY
THE PETITIONER DATED 09.09.2020,BEFORE THE
DISTRICT COLLECTOR.
EXHIBIT A TRUE COPY OF THE ORDER NO.DCPKD
7781/2020/C4 DATZED 09.09.2020 OF THE
DISTRICT COLLECTOR,PALAKKAD.
RESPONDENTS EXHIBITS:
EXHIBIT R1 (A) TRUE COPY OF THE ORDER PASSED BY THE
GOVERNMENT OF INDIA VIDE GAZETTE OF INDIA
NO.1148 DATED 24/12/2003.
W.P.(C).No.18993/2020 :: 17 ::
EXHIBIT R1 (B) TRUE COPY OF THE APPROVAL OF MINISTRY OF
POWER, CENTRAL ELECTRICITY AUTHORITY
GOVEERNMENT OF INDIA UNDER REF
NO.52/11(PGCIL)/2015-PSP & PA-II/251-252
DATED 29/09/2015.
EXHIBIT R1 (C) TRUE COPY OF THE GOVERNMENT ORDER GO(MS)
NO.7/2019/POWER DATED 04/05/2019.
EXHIBIT R1 (D) TRUE COPY OF THE GOVERNMENT ORDER GO(MS)
NO.15/2019/POWER DATED 19/07/2019.
EXHIBIT R1 (E) TRUE COPIES OF THE GOOGLE SKETCH PERTAINING
TO DRAWAL OF THE LINE OVER THE PETITIONER'S
PROPERTY EVIDENCING PERFECT ALIGNMENT.
//TRUE COPY//
P.S. TO JUDGE