Madras High Court
Ponnusamy vs The Union Of India on 19 April, 2021
W.A.No.1178 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.04.2021
CORAM :
THE HONOURABLE MR. JUSTICE M.M.SUNDRESH
AND
THE HONOURABLE MS. JUSTICE R.N.MANJULA
W.A.No.1178 of 2021
1.Ponnusamy
2.Balasubramaniyam
3.Manimekalai
4.Varadharajan
5.Krishnasamy Gounder
6.Venkidusamy
7.Shanmugasundaram
8.Rukmani
9.Subramaniyam
10.Saraswathy
11.Vijayaraj ..Appellants
Vs
1.The Union of India
Rep. by its Secretary to Government,
Ministry of Power,
Shram Shakti Bhawan,
Rafi Marg, New Delhi.
2.Central Electricity Authority,
Ministry of Power,
Government of India,
Rep. by its Chairman,
Sewa Bhawan, R.K.Puram,
New Delhi - 110 066.
3.The State of Tamil Nadu
Rep. by its Principal Secretary to Government,
Energy Department,
Fort St.George, Chennai - 09.
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W.A.No.1178 of 2021
4.Power Grid Corporation of India Ltd.,
Rep. by its Managing Director,
B-9, Qutab Institutional Area,
Katwaria Sarai,
New Delhi - 110 016.
5.The District Collector,
Office of the District Collector,
Tiruppur District, Tiruppur.
6.The Chief Manager,
Power Grid Corporation of India Ltd.,
Coimbatore Main Road,
K.Paramathy (Post),
Karur District - 639 111.
7.The Revenue Divisional Officer,
Tiruppur,
Tiruppur District.
8.The Deputy Superintendent of Police,
Palladam Range,
Tiruppur District.
9.The Tahsildar,
Palladam Taluk,
Tiruppur District.
10.K.Sivasubramaniyan
11.Balasubramanian
12.Sivagami
13.N.Palanichamy
14.Thirumalaisamy
15.Radha Jeyalakshmi ..Respondents
Prayer: Appeal filed under Clause 15 of the Letters Patent against
the order dated 10.03.2021 in W.P.No.19113 of 2020.
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W.A.No.1178 of 2021
For Appellants : Mr.V.Raghavachari
for Mr.M.Guruprasad
For Respondents : Mr.AR.L.Sundaresan,
Senior Counsel
for M/s.Aiyar and Dolia for R6
Mr.R.Thyagarajan,
Senior Counsel
for M/s.Aiyar and Dolia for R4
Mr.Issac Mohanlal,
Senior Counsel
for Mr.P.Nethaji
for R10 to R15
JUDGMENT
(Delivered by M.M.SUNDRESH, J.)
This writ appeal has been preferred by the owners of the
land challenging the order passed by the District Collector dated
28.10.2020 invoking Section 16(1) of the Indian Telegraph Act,
1885 read with Section 14 of The Electricity Act, 2003, facilitating
the completion of the over head towers. The learned Single Judge
after elaborately considering the contentions raised, dismissed the
writ petition and hence the present appeal.
2. We may note that on the very same Scheme, though for
a different area dealing with the similar issues argued by the same
counsel, the Division Bench of this Court in W.A.No.79 of 2019 by
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W.A.No.1178 of 2021
judgment dated 11.04.2019 dismissed the appeal filed by the land
owners and the Special Leave Petition filed against the same was
also dismissed.
3. The facts as dealt with by the Division Bench in
W.A.No.79 of 2019 are reproduced hereunder for better
understanding and appreciation:
"2. Facts in brief:
(i)Before proceeding further to deal with the
submissions made by the learned counsel appearing for
the parties, it would be appropriate to place on record the
background facts including the role of the second
respondent, scope of the enactments coupled with
jurisdiction of this Court.
(ii)The second respondent is a Government of
India Enterprise and The Central Transmission Utility
working under the aegis of the Ministry of Power. We are
concerned in this appeal with the role of the second
respondent in the project undertaken by it, as can be
seen from the following paragraphs of the affidavit filed
by it:
“3......... It is a Corporation of National
Importance incorporated as a “Government Company”,
under the provisions of the Companies Act, 1956, and is
established with a view to develop an efficient Power
Transmission System Network and is responsible for
planning and coordination of inter-state transmission
system and also responsible for establishment and
operation of the Regional and National Power Grids, to
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W.A.No.1178 of 2021
facilitate transfer of power within and across the regions
and is a Deemed Transmission Licensee in the capacity
of “Central Transmission Utility” as envisaged under
Sections 38 & 40 of The Electricity Act, 2003 as notified,
vide Notification dated 27th November, 2003, published
vide Gazette of India No.1084 dated 4th December
2003.
4. I submit that the Corporation is
empowered under the provisions of the Electricity Act,
2003 (hereinafter referred to as the Electricity Act) and
the Indian Telegraph Act, 1885 (hereinafter referred to
as the Telegraph Act) to place and maintain power
transmission Towers and to draw transmission lines
under, over, along or across, and posts in or upon, any
immovable property. Further, the aforesaid statutes,
provide for the manner of removal of
resistance/obstructions coming in the way of exercise of
the powers conferred. The relevant provisions of the
aforesaid enactments are discussed hereunder:
a. As per Section 14 of 'The Electricity
Act,2003','Central Transmission Utility' shall be
deemed to be a 'Transmission Licensee' under the Act.
b. As per Sec.164 of 'The Electricity Act,2003' the
Appropriate Government may by order in writing for
the placing of electric lines or electrical plant for the
transmission of electricity confer upon the 'Licensee'
any of the powers which the Telegraph Authority
possesses under the Indian Telegraph Act, 1885.
c. The Government of India in exercise of powers
conferred under Sec.164 of “The Electricity Act 2003'
had passed an Order dated 24.12.2003, vide Gazette
of India No.1148 authorizing this Respondent to
exercise all powers vested in the Telegraph Authority
under part III of the Indian Telegraph Act,1885, in
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W.A.No.1178 of 2021
respect of Electrical Lines and Electrical plants
established or maintained, or to be so established or
maintained for Transmission of Electricity or for the
purpose of Telephonic or Telegraphic communication,
necessary for the proper co-ordination of the works.
d. This Respondent submits that Part III of the Indian
Telegraph Act, 1885, relates to power to place
Telegraph Lines and Posts. Under Section 10 thereof,
the telegraph authority may, from time to time, place
and maintain telegraph lines under, over, along or
across, and posts in or upon, any immovable property,
provided that (a)..... (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 Telegraphic
Line or Post, and (c) ..... , (d) in the exercise of the
powers conferred by Section 10, the telegraphic
authority shall do as little damage as possible, and
when it has exercised those powers in respect of any
property other than that of the local authority, it shall
pay compensation, to all persons interested, for any
damage sustained by them by reasons of exercise of
those powers. Section 11 empowers the telegraphic
authority at any time, for the purpose of examining,
repairing, altering or removing any telegraph line or
post, to enter on the property under, over, along,
across, in or upon which the line or post has been
placed.”
x x x
6.I submit that this Respondent has been entrusted with
the task of construction/execution of scheme/s-
(i) Raigarh – Pugalur 6000 MW HVDC System
(ii)AC System strengthening at Pugalur end
(iii) Pugalur – Trichur 2000 MW VSC Based HVDC
System, under prior approval of Ministry of Power,
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W.A.No.1178 of 2021
Central Electricity Authority- Government of India under
Ref No.52/11(PGCIL)/2015-PSP&PA-II/251-252 dated
29.09.2015.
The subject matter of this Writ Petition pertains to
Raigarh-Pugalur 6000 MW HVDC system with a 800 kV
HVDC Transmission Line without any tapping in between
connecting Raigarh in the State of Chattisgarh and
Pugalur in the State of Tamil Nadu to facilitate evacuation
and transfer of power various Generation plants located
in the State of Chattisgarh state which passes through
Chattisgarh, Maharashtra, Telangana, Andhra Pradesh &
Tamil Nadu. The total length of the transmission line is
1843 Kms out of which 345 Kms passes through the
State of Tamil Nadu. This project is one of the biggest
power transmission project in India and the State of
Tamil Nadu is the major beneficiary.
7. I state that the total cost of the project is
about Rs.24,000 crores. The cost of the Transmission
Project connecting Raigarh and Pugalur is estimated at
Rs.19,000 crores including the Sub-stations at Raigarh
and Pugalur. Under Scheme I of the project ±800 kv
Bipole HDVC link connects Raigarh (Chattisgarh) HDVC
Station and Pugalur (Tamil Nadu) HDVC Station. The line
length is 1,843 Kms directly connecting both the HDVC
Terminal having capacity of 6000 MW. Under Scheme II,
AC system strengthening, there are 5 double circuit 400
kV HVAC lines connecting Pugalur, Arasur, Udumalpet,
Tiruvallam, (POWERGRID) and Edayarpalayam
(TANTRANSCO) Sub-stations. Under the Scheme, major
beneficiary is the State of Tamil Nadu.
8.Under Scheme I, viz., the line connecting
Raigarh and Pugalur the length of the transmission line is
about 345 kms in the State of Tamil Nadu consisting of
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W.A.No.1178 of 2021
966 towers. The schedule for project completion is May
2019. As on date, foundation works for erection of 620
Towers have been completed for the entire project area.
Erection of towers numbering 483 has been completed.
Stringing work of about 45KMs has also been completed
and the balance works are in full swing. I state that as far
Dharmapuri District is concerned, 184 towers are
proposed covering 69 kms. Out of 184 towers, foundation
works in 170 locations have been completed. Erection of
towers numbering 152 have been completed and the
stringing of 8.44 km out of 69 km completed and the
works are in progress. I state that in Dharmapuri District,
out of 500 land owners (approx), 261 have received crop
compensation to the tune of Rs.5.51 crores and tree
compensation to an extent of Rs.7.91 crores.”
3.While implementing the erection of towers,
the following procedure is adopted:
“Procedure for erection of towers
1.The entire distance of 1845 kms from Raigarh to
Pugalur is divided into packages viz., 10 packages.
2.Each package is for about 180 kms.
3.For Tamil Nadu, 345 kms is divided into 2 packages
viz., Package 9 and 10.
4.A straight line is drawn between Raigarh and Pugalur.
5.Regarding Tamil Nadu, the starting point is Chittoor. A
straight line called “BEE LINE” is drawn from Chittoor to
Pugalur.
6.The Engineers go along the BEE LINE as nearly as
possible avoiding settlements, Railway line, Road
crossing, River, Forest.
7.They conduct a walk over survey.
8. They propose three alternate routes to find out which
is the most economically and technically feasible route.
9. Then the Angle points are also fixed.
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W.A.No.1178 of 2021
10.Thereafter, a detailed survey is made.
11. The above exercises are shown in the Map.
12. The next stage is whatever is there in the Map is
transferred to the ground viz., marked in the ground.
13. The angle points are fixed on ground by using Global
Positioning System (GPS) instruments.
14.The ground level is then checked. Geographical details
are collected and line peg mark fixed.
15. A profile is made on the above details.
16.Then for every 20 meters, ground level measurement
is taken.
17. 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.
18. Then the tower schedule is prepared.
19. On due approval of the above, check survey is done.
20. Exact tower point is fixed with the help of survey
instrument.
21.It is only at that stage, we know that exact survey
number over which the tower is to be located.
22.After fixing the tower location, the details as to the
ownership and the person who is the owner of the land
are obtained from the revenue authorities.”
4. Thus, the second respondent does not
know the exact survey numbers, extent of land and the
identity of the persons on whose lands, transmission
towers were to be erected. Once suit lands are identified,
approval is accorded for erecting the transmission towers.
5. It appears that the transmission tower lines
were proposed to pass through the lands of the
appellants. They raised their objections and further writ
petitions were filed and directions were issued to the first
respondent to consider them. The second respondent also
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W.A.No.1178 of 2021
approached the first respondent seeking to invoke Section
16 of the Act. Summons were issued to the appellants for
their appearance. While declining to appear, the
appellants sought for numerous documents running to 14
numbers. Incidentally, they made requests to make
measurements in their presence along with an expert of
their own. As the requests made were not acceded to,
they declined to appear before the first respondent.
Having no other option and taking note of the fact that
the second respondent has also sought for removal of
obstruction, the impugned orders had been passed, inter
alia, holding that the project is an absolute necessity in
public interest and the short term crops can be raised at
the places in which the lines were drawn, adequate
compensation would be paid there is no possibility of
considering the alternative route and the project nearing
completion. Accordingly, the orders were passed in favour
of the second respondent granting permission under
Section 16 (1) of the Act."
4. Now, about eighty percent of the work has been
completed except 11 towers being the subject matter of the
impugned order.
5. As the appellants raised objections, the contesting
respondents approached the fifth respondent for appropriate orders
invoking Section 16(1) of the Indian Telegraph Act read with Section
14 of the Electricity Act.
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W.A.No.1178 of 2021
6. Mr.V.Raghavachari, the learned counsel appearing for
the appellants made the following submissions:
(i) There is a change of alignment from the one
proposed in the year 2017 to in the year 2019
pursuant to which the towers are sought to be
laid.
(ii) The learned Single Judge is not correct in
holding that the appellants are not entitled to
be heard.
(iii) The opinion given by the learned Attorney
General (as he then was) has not been taken
into consideration with respect to the laying of
towers. and
(iv) The principle of natural justice has not been
followed in letter and spirit.
7. Mr.AR.L.Sundaresan, learned Senior Counsel appearing
for one of the respondents submitted that the learned Single Judge
satisfied himself with respect to the violations of the principle of
natural justice. Even in the subsequent communications given by
the appellants, as could be seen from the documents filed on their
behalf, they have acknowledged the factum of the notices having
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W.A.No.1178 of 2021
been served on them but refused. Some of them have received the
notices and given their objections. There is no malice in law which is
involved. There was no straight line in the year 2017 as claimed by
the appellants and, therefore, the only approved route alignment
has been made in the year 2019 and the same is given effect to.
Therefore, the appeal deserves to be rejected.
8. The learned Single Judge considered all the objections
raised. On the very same issue of the subsequent alignment, the
learned Single Judge rightly held that it is factually incorrect. Even
in the Division Bench judgment referred supra, it has been held that
there is no malice in law. The fact remains that majority of the
project, which is in public interest has already been done. The total
cost of transmission is about Rs.21,735 crores. The project runs
through different States such as Karnataka, Telangana, Andhra
Pradesh and Tamil Nadu. Therefore, the finding rendered by the
learned Single Judge does not warrant interference with respect to
the allegations of the change in alignment.
9. On the scope and applicability of Sections 10 and 16 of
the Indian Telegraph Act, the Division Bench of this Court after
taking note of the earlier decisions rendered, has held as follows:-
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W.A.No.1178 of 2021
"9. We do not wish to reproduce various judgments on
the interpretation of the provisions governing. They have
been dealt with in extenso by this Court and the Apex
Court in numerous cases. Suffice it to refer to the recent
judgment of the Apex Court in Power Grid Corporation
(India) Limited Vs. Century Textiles and Industries
Limited and Others ((2017) 5 SCC 143), wherein it has
been held as under:
“23. Section 10 of the Indian Telegraph Act, 1885
empowers the Telegraph Authority place and maintain
a telegraph line under, over, along or across and posts
in or upon any immovable property. The provision of
Section 10(b) of the Indian Telegraph Act, 1885
makes it abundantly clear that while acquiring the
power to laydown telegraph lines, the Central
Government does not acquire any right other than that
of user in the property. Further, Section 10(d) of the
Indian Telegraph Act, 1885 obliges the Telegraph
Authority to ensure that it causes as little damage as
possible and that the Telegraph Authority shall also be
obliged to pay full compensation to all person
interested for any damage sustained by them by
reason of the exercise of those powers.”
Thus, Section 10 of the Act confers powers to
the second respondent to place and maintain telegraphic
lines and posts. We have no difficulty in holding that
there is an adequate authorisation given to the second
respondent by the Government of India in exercise of
power under Section 164 of The Electricity Act, 2003 by
the order dated 24.12.2003.
10. On the scope of Section 16 of the Act vis-
a-vis Section 10, the Division Bench of this Court in
(ii)C.Ram Prakash and Another Vs. Power Grid
Corporation (India) Limited and Others (2011-4 L.W.
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W.A.No.1178 of 2021
924) in which one of us (MMSJ) is a party and author has
held as follows:
“22. Scope of Sections 10 and 16 of the Indian
Telegraph Act, 1885:The power under Section 10 of
the Indian Telegraph Act, 1885 is rather wide and
extensive. While exercising the power, it is not
necessary for the Respondent No. 1 to put the
individuals, who owned the land on notice. Admittedly,
the Respondent No. 1has got power under Sections 10
and 16 of the Indian Telegraph Act, 1885. Such a
power has been conferred upon the Respondent No. 1
in public interest. The exercise of the said power by
erecting the towers with overhead lines would not
amount to an acquisition. It is true that such an action
would diminish the value of the property of an
individual, but at the same time it cannot be termed
as an acquisition. Since Section 16 of the Indian
Telegraph Act, 1885 provides mechanism of
compensation,the Appellants can have no grievance.
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
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W.A.No.1178 of 2021
possibility of realignment. The prescription of
Section16 of the Indian Telegraph Act is very specific
to provide aid to the Respondent No. 1to 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.MANU/DE/0189/1980 : 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 Section 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
Section16(1) of the Act to the District Magistrate.
Section 188, I.P.C. makes the disobedience of an order
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W.A.No.1178 of 2021
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.”
11. Thus, in view of the same, nothing more is
to be stated. In fact, we have also called the officer
concerned and perused the records. We also permitted
the learned counsel for the appellants to do so. The
officer has also explained the procedure which we have
recorded supra. We do not find any malice in law or fact.
The second respondent is carrying out its statutory duty.
Now the entire project is over insofar as the appellants
are concerned. We may note that two of the writ
petitioners also joined the other in filing the writ petitions
after receiving compensation, which cannot be
appreciated. Similarly, one of the appellants has also
received the compensation amount. It is the appellants
who approached the first respondent and for the reasons
known, they did not appear for hearing. They have asked
for numerous documents, which is for the purpose of
dragging on the proceedings. Order under Section 16(1)
of the Act was passed not only on the request of the
appellants but also that of the second respondent. The
role available to first respondent is rather limited. It is
neither a supervisory nor an adjudicating authority over
the second respondent. When the element of expertise is
involved and the same is undertaken by the statutory
body as per law, the power of judicial review will have to
be entertained with extreme caution. We cannot interfere
with the matter on some apprehension expressed by the
appellants. ....."
10. Thus, nothing more is required to be considered in this
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regard.
11. The appellants themselves tacitly acknowledged in the
subsequent representations that they did refuse to receive the
notices issued. We have already reiterated the view taken in the
earlier round of litigation touching upon the very same project on
the question of law involved as upheld by the Apex Court.
Therefore, we do not wish to undertake to re-do the said exercise.
The question of compensation is the issue, which has to be dealt
with separately. The views expressed by the learned Attorney
General (as he then was) do not deal with the provisions of the
enactment and it is nobody's case that the appellants are not going
to get adequate compensation. We find overwhelmingly the public
interest involved in giving effect to the project which has already
been delayed by the present proceedings. However, we record the
submission made on behalf of the learned counsel appearing for the
respondents that adequate compensation would be paid within a
period of two weeks from the date of completion of work in tune
with the impugned order passed.
12. The writ appeal stands dismissed accordingly. No
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costs. Consequently, connected C.M.P.Nos.7483 and 7484 of 2021
are closed.
(M.M.S., J.) (R.N.M., J.)
19.04.2021
Internet : Yes/No
ssm
To:
1.The Secretary to Government,
Union of India
Ministry of Power,
Shram Shakti Bhawan,
Rafi Marg, New Delhi.
2.The Chairman,
Central Electricity Authority,
Ministry of Power,
Government of India,
Sewa Bhawan, R.K.Puram,
New Delhi - 110 066.
3.The Principal Secretary to Government,
State of Tamil Nadu
Energy Department,
Fort St.George, Chennai - 09.
4.The Managing Director,
Power Grid Corporation of India Ltd.,
B-9, Qutab Institutional Area,
Katwaria Sarai,
New Delhi - 110 016.
5.The District Collector,
Office of the District Collector,
Tiruppur District, Tiruppur.
6.The Chief Manager,
Power Grid Corporation of India Ltd.,
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W.A.No.1178 of 2021
Coimbatore Main Road,
K.Paramathy (Post),
Karur District - 639 111.
7.The Revenue Divisional Officer,
Tiruppur,
Tiruppur District.
8.The Deputy Superintendent of Police,
Palladam Range,
Tiruppur District.
9.The Tahsildar,
Palladam Taluk,
Tiruppur District.
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W.A.No.1178 of 2021
M.M.SUNDRESH,J.
and
R.N.MANJULA,J.
(ssm)
W.A.No.1178 of 2021
19.04.2021
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