Madras High Court
P.Chinnasamy vs The District Collector on 3 February, 2021
W.P.Nos.17334 & 15896 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED DATE : 03.02.2021
PRONOUNCED DATE : 31.03.2021
CORAM
THE HONOURABLE THIRU JUSTICE B.PUGALENDHI
W.P.Nos.17334 and 15896 of 2020
and
W.M.P.Nos.21457 and 19758 of 2020
W.P.No.17334/2020
1. P.Chinnasamy
2. C.Ponanthal Petitioners
Vs.
1. The District Collector,
Collectorate,
Palladam Road,
Tiruppur 641 664.
Tiruppur District.
2. The Chairman,
Tamil Nadu Electrical
Transmission Corporation,
144, Anna Salai,
Chennai 600 002.
3. The Superintending Engineer,
General Construction Circle,
Electrical Wire Line Construction,
Tamilnadu Electrical
Transmission Corporation,
Tatabad, Coimbatore 641 012.
4. The Executive Engineer,
1/77
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Electrical Wire Line Construction,
General Construction Circle,
Tamilnadu Electrical
Transmission Corporation,
Perundurai, Erode District.
5. M/s.Suzlon Global Services Ltd.,
rep. by its Managing Director,
104, 1st Floor, Delta Wing,
Raheja Towers,
177, Anna Salai, Chennai 600 002. Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of Writ of Certiorarified Mandamus, to call for the
records relating to the impugned order in Na.Ka.No.6450/2020/E5
dated 8.10.2020 passed by the first respondent, quash the same and
consequently forbear the respondents from interfering with the
petitioners' right to property measuring 6 acres in New S.F.No.772/1
(Old S.No.750-B) and 2.13 acres in New S.F.No.773 (Old S.No.750-
A), Suriyanallur Village, Dharapuram Taluk, Thiruppur District.
For Petitioner : Mr.N.Manokaran
For R1 : Mr.S.N.Parthasarathi,
Government Advocate
For RR2 to 4 : Mr.Abdul Saleem, Special Govt.
Pleader
For R5 : Mr.Ajmal Khan, Senior Counsel for
M/s.Ajmal Associates.
W.P.No.15896 of 2020
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1. Jayanthi
2. S.Bhuvaneswari
3. S.Parimala Devi
4. Shanthi
5. T.Govindaraj
6. S.Venkidusamy
7. T.Kangeya Gounder
8. T.Palanisamy
9. A.Balasubramaniam
10. Subramaniam
11. Ganesamoorthy Petitioners
vs
1. The State of Tamil Nadu,
rep. by its Principal Secretary
to the Government,
Energy Department,
Fort St. George,
Chennai 600 009.
2. The Joint Managing Director,
Tamil Nadu Generation & Distribution
Corporation (TANGEDCO),
10th Floor, NPKRR Maligai,
144 Anna Salai, Chennai 600 002.
3. The District Collector,
Office of the District Collector,
Tiruppur District, Tiruppur.
4. The Chief Engineer/NCES,
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Tamil Nadu Generation & Distribution
Corporation (TANGEDCO),
2nd Floor, Eastern Wing,
NPKRR Maligai, 144 Anna Salai,
Chennai 600 002.
5. The Superintendent Engineer,
General Construction Circle,
TANTRANSCO,
Dr.Subbarayan Road,
Tatabad, Coimbatore-12.
6. The Executive Engineer,
General Construction Circle,
TANTRANSCO, Ellamedu, Ingur,
Perundurai Taluk,
Erode District.
7. The Superintendent of Police,
Tiruppur District Police,
Tiruppur.
8. The Deputy Superintendent of Police,
Dharpapuram Range, Tiruppur District
9. M/s.Sulzon Energy Ltd.,
rep. by its General Manager,
104, 1st Floor, Delta Wing,
Raheja Towers,
177 Anna Salai,
Chennai 600 002. Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of Writ of Certiorari to call for the records of the
impugned orders in Na.Ka.No.6450/2020/E5 dated 8.10.2020 (in
respect of all the petitioners) of the 3rd respondent and quash the
same as illegal, unlawful and unconstitutional.
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W.P.Nos.17334 & 15896 of 2020
For petitioner : Mr.V.Raghavachari for
Mr.M.Guruprasad
For RR1, 3, 7 & 8 : Mr.S.N.Parthasarathi,
Government Advocate
For RR2, 4, 5, 6 : Mr.Abdul Saleem, Special Govt.
Pleader
For R9 : Mr.Ajmal Khan, Senior Counsel for
M/s.Ajmal Associates.
COMMON ORDER
(This matter is taken up through Video Conferencing)
The petitioners are agriculturists having their lands at
Suriyanallur Village and Kolumanguli Village, Dharapuram, Tiruppur
District and have filed these writ petitions as against the orders of
the District Collector, Tiruppur dated 8.10.2020 in and by which the
District Collector has given enter upon permission to the power
generating company called M/s.Suzlon Energy Limited to erect High
Tension Towers in the petitioners' lands on certain conditions with the
powers conferred upon him under Section 16(1) of the Indian
Telegraph Act.
2. M/s.Suzlon Global Services Ltd., (hereinafter referred to as
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SUZLON) the power generating Company is in the process of laying
26 High Tension Towers to carry the power generated by them by
way of Windmills from Nezhali 110/33 Sub Station located at Nezhali
Village of Kangayam Taluk, Tiruppur District to the Rasipalayam 400
KV Substation and during such process, they faced some difficulty in
entering into the lands earmarked for such erection of Towers. The
land owners/farmers of the area in question, having certain
apprehensions that if the Towers are permitted to be erected, the
access to their land would be restricted, the land value would
decrease, they may not be in a position to get any financial
assistance with the bankers against their property and it would be
rendered unusable, made certain objections to the District Collector
for the laying of the towers through their agricultural lands.
3. Due to the objections raised by the petitioners, M/s.Suzlon
Global Services Limited had also filed a petitions before the District
Collector, for necessary order to enter upon on 5.8.2020 and
28.8.2020. Based on such petitions, the District Collector issued a
notice to the respective petitioners for enquiry scheduled on
11.9.2020, 18.9.2020 and 1.10.2020. Despite issuance of such
notices, some of the petitioners/land owners did not participate in the
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enquiry and some of the petitioners/land owners participated in the
enquiry and expressed their grievance and the consequences they
apprehended that the access to their land would be restricted, the
land value would decrease, they may not be in a position to get any
financial assistance with the bankers against their property and it
would be rendered unusable.
4. The District Collector, after considering the grievance
expressed some of the land owners, has passed the impugned orders
granting permission to the power generating company SUZLON to
erect the Towers in view of the larger public interest involved in the
matter viz., adequate power requirement of future and such
impugned orders are under challenge in these writ petitions.
5. Mr.N.Manokaran, learned counsel appearing for the
petitioners in W.P.No.17334 of 2020 and V.Raghavachari, learned
counsel for the petitioners in W.P.No.15896 of 2020, in support of
their writ petitions, made their submissions that already during the
period from 1989 to 1999, a 400 KV line to connect Rasipalayam and
Anaikadavu was laid in some of the lands of the same locality without
getting any order 'enter upon permission' and also without paying
any compensation to the land owners concerned and now once again
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the present project is initiated without even properly serving any
notice to some of the petitioners/land owners concerned. It is further
submitted by the learned counsels that the 'enter upon permission'
was obtained by SUZLON under the provisions of Indian Telegraph
Act by misleading as if they are the Authorities under the Indian
Telegraph Act when they have no such authority and if at all, they
ought to have proceeded only under Section 10 of the Electricity Act,
2003. The learned counsels for the petitioners have also sought to
canvass the grievances of the petitioners that the access to their
land would be restricted, the land value would decrease, they may
not be in a position to get any financial assistance with the bankers
against their property and it would be rendered unusable. In
addition to the above submissions, the learned counsels for the
petitioners assailed the impugned order on the ground of audi
alteram partem rule.
6. The impugned orders refer to the objection made by the
petitioners for erection of towers and therefore, SUZLON has
approached the District Collector as per the provisions of the
Telegraph Act. The District Collector, in all fairness, ought to have
conducted an enquiry with all the petitioners, but without providing
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an opportunity has simply followed the Report of the officials as
summons were served on the petitioners and proceeded with the
enquiry even in the absence of some of the petitioners.
7. According to the learned counsel for the petitioners, the
petitioners never received any summons or notice and they have not
refused the same and those notices alleged to have been served
through the officials did not have the names of the petitioners and
the attempted service on a non-existing person is not a service. All
along these petitioners are making their representations to the
Competent Authority viz., the District Collector on various dates.
When the petitioners are agitating the issue from several months, the
stand of the District Collector that they have refused to participate in
the enquiry is unbelievable and a created effort to defeat the interest
of the petitioners. When these petitioners have approached the
Competent Authority time and again the District Collector hurriedly
passed the impugned orders based on the representation of SUZLON.
As per Section 68 and Section 164 of the Indian Electricity Act
combined with Section 10 and 16 of the Indian Telegraph Act, the
District Collector, the Competent Authority ought to have given a fair
opportunity to all the petitioners/land owners and conducted an
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enquiry with an open mind and should have ensured whether SUZLON
has to be permitted to erect the Towers based on the representation
of the petitioners.
8. In support of their submissions, the learned counsels for the
petitioners has relied on the following judgments;
(i)K.S.Natarajan & others Vs. Government of India &
others, reported in 2018(8) MLJ 321 dated 17.09.2018.
(ii)Mr.Periyasamy & others Vs. The District Collector &
others in W.P.No.5444 of 2019 dated 26.02.2019.
(iii)P.Balamani & another Vs. The District Magistrate &
others reported in 2008 (2) CTC 555 dated 14.03.2008
(iv)K.Pechimuthu & others Vs. Power Grid Corporation &
others reported in 2018 SCC OnLine Mad 3418.
9. The relevant portions of the judgments cited by the learned
counsel for the petitioner are as follows:-
(i)K.S.Natarajan & others Vs. Government of India &
others, reported in 2018(8) MLJ 321 dated 17.09.2018.
"15. Needless to mention that any statute, which
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provides for the action being taken against the
citizens of this country is to be taken only by
following the principles of natural justice to say
the least. Even in the absence of any particular
provision, the fundamental principles of natural
justice are to be read in every statutory scheme.
Otherwise, any consideration by the official
concerned and the grievance of the citizens
would render the decision making process
meaningless and nugatory. What is to be
expected from the second respondent is to
consider the objections raised by the petitioners
independently, without being guided by the
deliberation, which took place outside the realm
of consideration. That would alone be in
fulfilment of the statutory responsibility cast on
the Authority concerned. This is become more
imperative, when the land owners are being
deprived of the full land value and would suffer
curtailment of rights in substantial measure
while dealing with their own lands, once erection
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of high voltage transmission wires takes place.
In such view of the matter, the least that could
be done in the matter by the second respondent
is to give an opportunity of personal hearing to
the petitioners before passing any orders. In this
case, the second respondent appears to have
not considered the objections of the petitioners
in all earnestness, however, chosen to dispose of
the objections with little application of mind."
(ii)Mr.Periyasamy & others Vs. The District Collector &
others in W.P.No.5444 of 2019 dated 26.02.2019.
"7. Perusal of the notice dated 14.01.2019
would show that the petitioners were called
upon to appear on 21.01.2019 with their reply
to the common counter filed by the 2nd
respondent. Further, perusal of the track
consignment issued by the Postal Department
clearly indicate that the said notice dated
14.01.2019 was served on petitioners only on
22.01.2019. Therefore, it is evident that the
said notice, stipulating the date of hearing as
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21.01.2019, was served on the petitioner only
on the next day i.e., 22.01.2019. Therefore, the
petitioners are justified in contending that the
impugned orders were passed without hearing
them and in violation of principles of natural
justice. At the same time, this Court is not
expressing any view on the rival contentions
made by the parties in respect of the
merits of the matter, as it is for the 1st
respondent to consider and decide. Since, this
Court is satisfied that the impugned orders are
passed in violation of principles of natural
justice as discussed supra, this Writ Petition is
allowed and the impugned orders are set aside.
Consequently, the matter is remitted back to
the 1st respondent for issuing fresh notice to
the petitioners by indicating the date of hearing.
After receipt of such notice, the petitioners
should appear on the said date without fail and
cooperate with the enquiry so as to enable the
1st respondent to pass fresh orders on merits
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and in accordance with law. The 1st respondent
shall issue such notice within a period of two
weeks from the date of receipt of a copy of this
order by indicating the date of hearing. On
conducting such enquiry, the first respondent
shall pass fresh orders within a period of four
weeks thereafter. It is open to the petitioners to
seek for such of those documents which are
relevant for considering the objections raised by
the petitioners in the enquiry before the first
respondent. No costs. Consequently, connected
miscellaneous petition is closed."
(iii)P.Balamani & another Vs. The District Magistrate &
others reported in 2008 (2) CTC 555 dated 14.03.2008
"25. A careful analysis of the impugned
proceedings passed by the District
Magistrate/District Collector, pursuant to the
orders of this Court, would go to show that they
are non-speaking orders, as the District
Magistrate has not at all gone into the objections
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in detail to consider the same independently, by
applying his mind. Reasoning is the heartbeat of
every conclusion and without the same, the
conclusion becomes lifeless. The rationale behind
it is that the affected party can know why the
decision has gone against him. One of the
salutary requirements of natural justice is
spelling out reasons for the order made.
Therefore, I am not inclined to go into the other
aspects of the matter, which the learned counsel
on either side have advanced their arguments. I
am only inclined to interfere with the impugned
orders, as they are non-speaking ones. As such,
the impugned orders cannot be sustained and
are set aside, remitting the matters back to the
District Collector for consideration. "
(iv)K.Pechimuthu & others Vs. Power Grid Corporation &
others reported in 2018 SCC OnLine Mad 3418.
"10. Irrespective of the rival submissions, this
Court is of the view that since the objections
raised by the petitioners by way of
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representations dated 31.01.2018 to the
respondents are stated to be pending, it would
be appropriate to direct the same to be disposed
of, in accordance with law, before the proposed
action is taken by the respondents.
11. Accordingly, the respondents are
directed to consider the http://www.judis.nic.in
petitioners' representations dated 31.01.2018
and pass appropriate orders on merits and in
accordance with, after affording an opportunity
of personal hearing to all the parties, within a
period of six weeks from the date of receipt of a
copy of this order."
10. Per contra, Mr.Ajmal Khan, learned Senior Counsel
appearing for SUZLON submitted that this is a project of erecting 26
High Tension Towers to carry the power generated by them by way of
Windmills from Nezhali 110/33 Sub Station located at Nezhali Village
of Kangayam Taluk, Tiruppur District to the Rasipalayam 400 KV
Substation so as to carry the uninterrupted power supply to rural
areas. He would further submit that out 26 towers, they do not have
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any difficulty with erection of 15 towers and compensation for the
land owners concerned is also paid and it is only due to the
objections in erection of these 11 towers in question, the total project
is stalled now and in fact, with regard to these 11 towers also, it is
not exactly erection of towers, but, only the case of carrying the
overhead power line. With regard to the objections raised by the
petitioners that it is by misleading the competent authority, SUZLON
has obtained the 'enter upon permission', the learned Senior Counsel
Mr.Ajmal Khan would submit that TANGEDCO, by its proceedings
dated 21.7.2015, had authorized SUZLON to execute the works and
the TANGEDCO being the authority notified under Section 164 of the
Electricity Act, 2003 by the Government of Tamil Nadu, SUZLON need
not necessarily be a licensee to obtain the 'enter upon permission'
under the provisions of the Indian Telegraph Act.
11. The learned Senior Counsel appearing for SUZLON has
relied upon the following judgments in respect of his contention:-
(i) W.A.No.464 of 2008 dated 10.04.2008 in R.Kannan Vs.
Power Grid Corporation (India) Limited.
(ii) C.Ram Prakash and another –Vs- Power Grid
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Corporation of India Ltd., reported in 2011 (4) MLJ 924 in
W.A.(MD).No.602 of 2011 dated 23.08.2011.
(iii) Sri Vignesh Yarns Pvt. Ltd., rep. by its Managing
Director, Sri. T.Sivakumar, Tiruppur –Vs- S.Subramaniam, S/o.
Sennimalai Gounder and others reported in (2013) 1 MLJ 56 in
W.A.Nos.1049 etc., of 2012 dated 16.11.2012.
(iv) Power Grid Corporation of India Limited –Vs- Century
Textiles and Industries Limited and others reported in (2017) 5
SCC 143 in C.A.No.10951 of 2016 dated 14.12.2016.
(v) R.Raja and 3 others –Vs- The District Collector,
Dharmapuri District, Dharmapuri and another dated 11.04.2019
in W.A.No.79 of 2019.
(vi) Vai Palanisamy and 10 others –Vs- Union of India,
rep. by its Secretary, Ministry of New and Renewable Energy
and 10 others dated 26.06.2019 in W.P.No. 15077 of 2019.
(vii) S.Selvaraj –Vs- The District Collector, Erode District
and others etc dated 16.07.2019 in W.A.No.2032 of 2019.
(viii) R.Raja & others Vs. District Collector & others in SLP
(C) No.11596 of 2019 dated 22.07.2019.
(ix) Vai Palanisamy Vs. Union of India & others in
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W.A.No.2167 of 2019 dated 29.07.2019.
(x) M.Duraisamy Vs. The District Collector & another in
WP (MD) No.17167 of 2019 dated 27.08.2019.
(xi) Mr.P.Duraisamy Maharajha Rice Mills (P) Ltd., Vs The
District Collector cum District Magistrate in W.A.No.3913 of
2019 dated 25.11.2019.
12. The relevant portions of the judgments cited by the learned
Senior Counsel appearing for SUZLON are as follows:-
(i) W.A.No.464 of 2008 dated 10.04.2008 in R.Kannan Vs.
Power Grid Corporation (India) Limited.
"9. On behalf of the Corporation, the original
plans were produced before us and on
examination of the materials placed on record,
we are satisfied that the route selected by the
Corporation is the best possible route and in
any event, in our opinion, it is not permissible
to the District Magistrate to accept such opinion
of the technical expert and to suggest another
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route for the purpose of laying down the
transmission lines. It is required to be noted
that the route selected by the Corporation is
the shortest route cutting through the Reserve
Forest area, which is also in consonance with
the directions of the Supreme Court and in fact,
the Corporation has also approached the
Supreme Court and is awaiting orders for
cutting the required number of trees in the
Gudalur Forest Area, where three towers would
be erected. Moreover, under Section 16(1) of
the Indian Telegraph Act, the only question
which the District Magistrate is empowered to
decide is whether to permit the authority to
exercise the power under Section 10 of the Act
and the jurisdiction cannot be expanded to
empower the District Magistrate to suggest
alternative route for the purpose of laying down
the transmission lines on the basis of the so-
called report, when it is on record that the
Corporation has chosen the most techno-
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economically feasible route."
(ii) C.Ram Prakash and another –Vs- Power Grid
Corporation of India Ltd., reported in 2011 (4) MLJ 924 in
W.A.(MD).No.602 of 2011 dated 23.08.2011.
"11. Definition of the word 'Post'.:
Section 3 of the Indian Telegraph Act, 1885
defines the word 'post' in the following manner:
"3. (5) "post" means a post, pole, standard,
stay, strut or other above ground contrivance for
carrying, suspending or supporting a telegraph
line;" There is absolutely no substance in the
arguments of the learned counsel for the
appellants that the word 'post' does not include a
'tower', since the definition is rather exhaustive.
While defining the word 'post', it has been
specifically stated that it would also include other
above ground contrivance for carrying,
suspending or supporting a telegraph line.
12. It is one of the principles of
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interpretation of a provision that the general
words which follow specific words will have to be
read by applying the principle of ejusdem
generis. The Act was introduced in the year
1885. Therefore, there would not have been any
possibility to include the word 'tower' at that
time since it is a subsequent scientific innovation.
Considering the object and reasoning and the
wider amplitude provided under the clause, by
applying the principle of ejusdem generis, we
have no doubt in our mind, the word tower would
also form part of the definition of the word
'post'."
(iii) Sri Vignesh Yarns Pvt. Ltd., rep. by its Managing
Director, Sri. T.Sivakumar, Tiruppur –Vs- S.Subramaniam, S/o.
Sennimalai Gounder and others reported in (2013) 1 MLJ 56 in
W.A.Nos.1049 etc., of 2012 dated 16.11.2012.
"19. As we have observed earlier, as per the
scheme of the Act, the District Collector was not
empowered either under Section 16 or Section
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17 of the Indian Telegraph Act to decide upon
the route and his power was more in the nature
of execution of a decision taken under Section 10
of the Act or under Section 67 or 68 of the
Electricity Act, 2003. Therefore, when the
experts namely the officials of the Board took a
definite stand that the original route which was
proposed was technically more feasible and it
would be in the interest of the public, since the
route was along the existing Panchayat road, we
find there is absolutely no justification for the
Collector to pass an order on 18.7.2011 to
change the route which was not found to be
technically feasible by the experts. Further, the
entire work has been completed except for nine
towers and at that stage it would be improper for
the District Collector to alter the route, and adopt
an alternate route which was found not
technically feasible. It is stated that the
expenses incurred so far is about Rs.150 crores
for erecting lines, apart from Rs.3,000 crores
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which was spent for construction of the new
Thermal Power Plant at Mettur and the power
which has to be evacuate through its supply line
is to provide uninterrupted power supply to both
agriculture and industrial development.
Therefore, by virtue of the delay, the power line
could not be erected on time though the Power
Plant was ready to generate about 600 MW
power by the end of March, 2012."
(iv) Power Grid Corporation of India Limited –Vs- Century
Textiles and Industries Limited and others reported in (2017) 5
SCC 143 in C.A.No.10951 of 2016 dated 14.12.2016.
"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 24-12-2003 exercisable under the
Telegraph Act, 1885 upon the Power Grid. It may
also be mentioned that a Central transmission
utility (CTU) is a deemed licensee under the
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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 Telegraph Act, 1885, it acquires all such
powers which are vested in a telegraph authority
under the provisions of the Telegraph Act, 1885
including power to eliminate any obstruction in
the laying down of power transmission lines. As
per the provisions of the 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
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objective and through the scheme of the
Telegraph Act, 1885 empowering the licensee to
lay telegraph lines, applied the same, as it is, for
laying down the electricity transmission lines.
22. Powers of the telegraph authority
conferred by Sections 10, 15 and 16 of the
Telegraph Act, 1885, stand vested in and are
enjoyed by the Power Grid. These provisions are
reproduced below:
“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
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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,
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the telegraph authority shall do as
little damage as possible, and,
when it has exercised those
powers in respect of any property
other than that referred to in
clause (c), shall pay full
compensation to all persons
interested for any damage
sustained by them by reason of
the exercise of those powers.
* * *
15. Disputes between telegraph
authority and local authority.—(1) If any
dispute arises between the telegraph
authority and a local authority in
consequence of the local authority refusing
the permission referred to in Section 10
clause (c), or prescribing any condition
under Section 12, or in consequence of the
telegraph authority omitting to comply with
a requisition made under Section 13, or
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otherwise in respect of the exercise of the
powers conferred by this Act, it shall be
determined by such officer as the Central
Government may appoint either generally
or specially in this behalf.
(2) An appeal from the determination of
the officer so appointed shall lie to the
Central Government; and the order of the
Central Government shall be final.
16. Exercise of powers conferred by
Section 10, and disputes as to
compensation, in case of property other
than that of a local authority.—(1) If the
exercise of the powers mentioned in
Section 10 in respect of property referred
to in clause (d) of that section is resisted or
obstructed, the District Magistrate may, in
his discretion, order that the telegraph
authority shall be permitted to exercise
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them.
(2) If, after the making of an order
under sub-section (1), any person resists
the exercise of those powers, or, having
control over the property, does not give all
facilities for their being exercised, he shall
be deemed to have committed an offence
under Section 188 of the Indian Penal
Code, 1860 (45 of 1860).
(3) If any dispute arises concerning the
sufficiency of the compensation to be paid
under Section 10 clause (d), it shall, on
application for that purpose by either of the
disputing parties to the District Judge
within whose jurisdiction the property is
situate, be determined by him.
(4) If any dispute arises as to the
persons entitled to receive compensation,
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or as to the proportions in which the
persons interested are entitled to share in
it, the telegraph authority may pay into the
court of the District Judge such amount as
he deems sufficient or, where all the
disputing parties have in writing admitted
the amount tendered to be sufficient or the
amount has been determined under sub-
section (3), that amount; and the District
Judge, after giving notice to the parties and
hearing such of them as desire to be heard,
shall determine the persons entitled to
receive the compensation or, as the case
may be, the proportions in which the
persons interested are entitled to share in
it.
(5) Every determination of a dispute by
a District Judge under sub-section (3) or
sub-section (4) shall be final:
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Provided that nothing in this sub-section
shall affect the right of any person to
recover by suit the whole or any part of
any compensation paid by the telegraph
authority, from the person who has
received the same.”
(emphasis supplied)
23. Section 10 of the 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. The provision of Section 10(b) of the
Telegraph Act, 1885 makes it abundantly clear
that while acquiring the power to lay down
telegraph lines, the Central Government does not
acquire any right other than that of user in the
property. Further, Section 10(d) of the 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
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obliged to pay full compensation to all persons
interested for any damage sustained by them by
reason of the exercise of those powers."
(v) R.Raja and 3 others –Vs- The District Collector,
Dharmapuri District, Dharmapuri and another dated 11.04.2019
in W.A.No.79 of 2019.
"7. Mr.V.Raghavachari, learned counsel
appearing for the appellants vehemently
contended that every thing is shrouded with
mystery. There is a reasonable apprehension
that the original plan was deviated for the
reasons known. The documents sought for ought
to have been furnished. A narrow restrictive
interpretation cannot be given to Section 10 r/w
16 of the Act. This Court can certainly exercise
its extraordinary jurisdiction and come to the aid
of the appellants. In support of his submission,
reliance has been made on the following
decisions:
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(i) R.Santhana Raj Vs. The Chief Engineer, Non-
Conventional Energy Source (2012 (1) CTC 504)
(ii)The State of U.P. vs. Raj Narain and Others
((1975) 4 SCC 428)
(iii)P.Arimutharasu Vs. The Superintending
Engineer (Wind Farm Project) TNEB & Others
(Madurai Bench) (2015-1 L.W. 353)
(iv)P.Balamani and Others Vs. The District
Magistrate and District Collector and Ors.
(2008(2) CTC 555)
(v)Reliance Petrochemicals Ltd., Vs. Proprietors
of Indian Express News Papers, Bombay Pvt.
Ltd., and Others ((1988) 4 SCC 592)
(vi)M.Nagaraj and Others Vs. Union of India and
Others ((2006) 8 SCC 212)
(vii)Natwar Singh Vs. Director of Enforcement
and Another ((2010) 13 SCC 255)
(viii)Indian Soaps and Toiletries Makers
Association Vs. Ozair Husain and Others ((2013)
3 SCC 641)
(ix) Chingleput Bottlers Vs. Majestic Bottling
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Company ((1984) 3 SCC 258)
(x) N.Lakshmi Vs. The District Collector, Erode
and Others (W.P.No.20360 of 2016 dated
19.04.2017)
(xi)Indu Bhushan Dwivedi Vs. State of Jharkhand
and Another ((2010) 11 SCC 278)
... ....
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. 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
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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
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the Respondent No. 1 will have to
approach the second Respondent
whenever there is an objection. The
word objection has got a different
connotation than the words resistance
or obstruction. A resistance or
obstruction would mean preventing the
statutory body from carrying out the
public duty. Whereas an objection is
merely a form of protest. Further, under
Section 16 of the Indian Telegraph Act,
the Respondent No. 2 has got no power
to go into the merits of the case and
find out as to whether the alignment
proposed is correct or not and there is
any possibility of realignment. The
prescription of 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
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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
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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
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Magistrate. Section 188, I.P.C. makes
the disobedience of an order duly
promulgated by the public servant an
offence. Section 16 is really in aid of the
discharge of statutory duty and exercise
of statutory power postulated by Section
10.We are in respectful agreement with
the ratio laid down therein.”
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.
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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.
Now the substantial part of the project is over
insofar as the appellants are concerned. We are
not dealing with an acquisition per se. There is
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no material available to controvert the reasoning
in the impugned orders. Admittedly, there is
overwhelming public interest exists in favour of
the second respondent. Every delay would cause
serious financial implications among others. It
might have a spiralling effect on the project as
well. The appellants cannot ask the first
respondent to direct the second respondent to
furnish all the documents which they seek. There
is no arbitrariness in the procedure adopted by
the second respondent. Certainly, the appellants
can seek for appropriate compensation for the
diminishing value of their lands caused by the
overhead lines and erection of towers. Thus, we
do not find any merits in this appeal."
(vi) Vai Palanisamy and 10 others –Vs- Union of India,
rep. by its Secretary, Ministry of New and Renewable Energy
and 10 others dated 26.06.2019 in W.P.No. 15077 of 2019.
"17. It is a sorry state of affairs that despite
clear
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pronouncements of this Court on various
occasions on this project, time and again under
one pretext or other, writ petitions are filed on
mis-information being percolate among public
through sensational and irresponsible news.
Those persons are bound to introspect
themselves whether they are truly exposing the
cause of public.
18. After enjoying all comforts of electricity
in their homes and business establishment,
making fake protest for public consumption and
mislead the pubic to stall the project, which by
and large going to provide uninterpreted
electricity supply, is only an attempt by some
vested interest through the petitioners to keep
the state in dark and perennial starvation for
electricity. This Court cannot be privy to the said
evil design."
(vii) S.Selvaraj –Vs- The District Collector, Erode District
and others etc dated 16.07.2019 in W.A.No.2032 of 2019.
"8. The source and scope of the authority or
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power of the respondents to take up the work of
the implementation of the scheme of laying of
transmission line has to be considered. The
permission granted by the State Government in
pursuance of the power under Section 164 of the
Electricity Act, 2003 constitutes the source of the
authority, TANTRANSCO. It would be only
appropriate to examine Section 164 of the
Electricity Act, 2003. Section 164 of the
Electricity Act, 2003, 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 such
conditions and restrictions, if any, as
the Appropriate Government may
think fit to impose and to the
provisions of the Indian Telegraph
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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.”
.... .....
13. Section 10 that grants authority only
for the limited purpose of establishing or
maintaining a telegraph. It does not provide any
other right to the telegraph authority. It is only a
user in respect of the property over, which a
telegraph line passes. By exercising such power,
the authority does not become owner of the
property and all that it gets is right of user of the
property. The Section does not contemplate any
notice or hearing before exercising such power to
draw a telegraph line, although it envisages
payment of compensation. However, it would not
make exercise of power under Section 10,
arbitrary or violative of the principles of Natural
Justice as contemplated under Articles 14 and 21
of the Constitution. The right to property under
Article 300A is a Constitutional right. It is not
absolute and it can be taken away by authority
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of law.
14. But Section 10 of the Telegraph Act,
1885, does not take away any right to property.
It only creates some restrictions on the
enjoyment of right to property by creating a right
of user in the telegraph authority. Proviso (a) to
Section 10 restricts the power of the telegraph
authority only to the draw a telegraph line. It
does not grant the Authority provision to use the
power for any other purpose. The object is to
provide to the Government or to any other
licensee to place telegraph lines and posts which
are projects, eminently in public interest.
Further,
under Proviso (d) the Authority should cause as
little damage as possible while undertaking the
work. It also mandates that the Authority must
pay compensation to the affected person for the
damage caused by reason of exercise of the
power. Thus, Section 10 prescribes a just and
fair procedure for placing limitations on full
enjoyment of property. It therefore, cannot be
said to be arbitrary and violative of Articles 14
and 21 or 300-A of the Constitution of India, just
because it does not contain any provision for
issuance of notice or giving hearing to affected
person before the work is undertaken.
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15. When the provision of Section 10 is
read with Sections 16 and 17, it would become
clear that under the scheme of Part-III of the
Telegraphic Act, 1885 a balance has been struck
between the necessity of public interest and the
individual need by addressing the grievance of
the aggrieved. Notice and hearing have to be
read in these sections as they confer a discretion
upon the District Magistrate to adjudicate on the
justifiability of the objection or acceptability of
the suggestion and no public authority can
exercise a
discretion arbitrarily. Any exercise of such
discretion is likely to have ripple effects and civil
consequences for the owner or occupier of the
private land on the one hand and the escalation
in cost and delay in execution on the other hand.
Therefore, provision of fair opportunity of hearing
in exercise of such a discretion is in consonance
with the mandate of Articles 14 and 21. We hold
that Section 10 by virtue of Sections 16 and 17,
on the whole provides for a fair procedure for a
partial deprivation of right to property and
simultaneous right to TANTRANSCO to enter
upon the property only as an user to lay electric
Towers.
16. We are conscious of the fact that
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finalization of route of transmission line is a
highly technical and specialized subject. Also, the
route of transmission line in this case runs into
several hundreds of kilometers and it passes
over different lands of different persons.
.... .....
23. As a matter of fact, discussion on these
aspects had been made by the Hon'ble Supreme
Court in (2017) 5 SCC 143 [Power Grid
Corporation of India Limited Vs. Century Textiles
and Industries Limited and Others]. In the said
case, Century Textiles and Industries Limited had
challenged laying of transmission lines by Power
Grid Corporation of India Limited, a Government
of India Undertaking, parallel to the existing lines
over a cement manufacturing unit for which they
had a registered lease deed executed with the
State Government. In that case also, excavation
work for erection of towers had started. The
transmission lines were to pass through the
property leased out. Rejecting the challenge over
erection of towers and establishment of overhead
lines, the Hon'ble Supreme Court examined the
provisions and implications of Sections 68 & 69
of the Electricity Act 2003 and also Rules 3 and
10 of the Works of Licensees Rules 2006 and
held as follows:-
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“15. It is further submitted that there is
violation of Sections 68 and 69 of the
Electricity Act, 2003 as well as Rules 3
and 10 of the Works of Licensees Rules,
2006 (hereinafter referred to as “the
2006 Rules”) in laying down the
overhead lines and, therefore, the High
Court erred in law in permitting the
same.
16. In order to appreciate the
contentions of the writ petitioner, it is
necessary to have a glimpse of the
provisions of the Electricity Act, 2003 as
well as the Rules on which reliance has
been placed by Mr Shrivastava.
17. Sections 68 and 69 of the
Electricity Act, 2003 fall in Part VIII with
the caption “Works”. These two
provisions directly deal with the
overhead lines. As per Section 68, an
overhead line can be installed or kept
installed above ground “with prior
approval of the appropriate
Government”. “Appropriate Government”
is defined under Section 2(5) of the
Electricity Act, 2003 and it is not in
dispute that in the instant case, it would
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be the Central Government as it is the
Central Government which is the
appropriate Government in respect of a
generating company wholly or partly
owned by it and Power Grid is a
company which is owned by the Central
Government. The argument was that no
such prior approval from the Central
Government was obtained in terms of
the aforesaid provision.
18. We find that this assertion is
factually incorrect. The learned Single
Judge specifically noted that the Power
Grid had obtained prior approval of the
Central Government under Section 68(1)
of the Electricity Act, 2003. Though, an
attempt was made that this finding is
incorrect, we do not agree with the said
submission of the writ petitioner as the
learned ASG pointed out to us the
document containing such an approval.
19. Another submission made was that
permission of the writ petitioner was not
obtained which was needed as per Rule 3 of the
2006 Rules. Rule 3(a) reads as under:
“3. Licensee to carry out works.—(1)
A licensee may—
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(a) carry out works, lay down or place
any electric supply line or other works
in, through, or against, any building, or
on, over or under any land whereon,
whereover or whereunder any electric
supply line or works has not already
been lawfully laid down or placed by
such licensee, with the prior consent of
the owner or occupier of any building or
land;”
20. In the instant case, the aforesaid Rule
is not applicable in view of Section 164 of the
Electricity Act, 2003, which 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
coordination 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
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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.”
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
24.12.2003 exercisable under the 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
Telegraph Act, 1885, it acquires all such powers
which are vested in a telegraph authority under
the provisions of the Telegraph Act, 1885
including power to eliminate any obstruction in
the laying down of power transmission lines. As
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per the provisions of the 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
Telegraph Act, 1885 empowering the licensee to
lay telegraph lines, applied the same, as it is, for
laying down the electricity transmission lines.
22. Powers of the telegraph authority conferred
by Sections 10, 15 and 16 of the Telegraph Act,
1885, stand vested in and are enjoyed by the
Power Grid. These provisions are reproduced
below:
“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—
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(a) the telegraph authority shall not
exercise the powers conferred by this
section except for the purposes of a
telegraph established or maintained by the
Central Government, or to be so established
or maintained;
(b) the Central Government shall not
acquire any right other than that of user
only in the property under, over, along,
across, in or upon which the telegraph
authority places any telegraph line or
post; and
(c) except as hereinafter provided, the
telegraph authority shall not exercise those
powers in respect of any property vested in
or under the control or management of any
local authority, without the permission of
that authority; and
(d) in the exercise of the powers conferred
by this section, the telegraph authority shall
do as little damage as possible, and, when
it has exercised those powers in respect of
any property
other than that referred to in clause (c),
shall pay full compensation to all persons
interested for any damage sustained by
them by reason of the exercise of those
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powers.
***
15 Disputes between telegraph authority
and local authority.—(1) If any dispute
arises between the telegraph authority and
a local authority in consequence of the local
authority refusing the permission referred
to in Section 10 clause (c), or prescribing
any condition under Section 12, or in
consequence of the telegraph authority
omitting to comply with a requisition made
under Section 13, or otherwise in respect of
the exercise of the powers conferred by this
Act, it shall be determined by such officer
as the Central Government may appoint
either generally or specially in this behalf.
(2) An appeal from the determination of the
officer so appointed shall lie to the Central
Government; and the order of the Central
Government shall be final.
16. Exercise of powers conferred by Section
10, and disputes as to compensation, in
case of property other than that of a local
authority.—
(1) If the exercise of the powers mentioned
in Section 10 in respect of property referred
to in clause (d) of that section is resisted or
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obstructed, the District Magistrate may, in
his discretion, order that the telegraph
authority shall be permitted to exercise
them.
(2) If, after the making of an order under
sub-section (1), any person resists the
exercise of those powers, or, having control
over the property, does not give all facilities
for their being exercised, he shall be
deemed to have committed an offence
under Section 188 of the Indian Penal
Code, 1860 (45 of 1860).
(3) If any dispute arises concerning the
sufficiency of the compensation to be paid
under Section 10 clause (d), it shall, on
application for that purpose by either of the
disputing parties to the District Judge within
whose jurisdiction the property is situate,
be determined by him.
(4) If any dispute arises as to the persons
entitled to receive compensation, or as to
the proportions in which the persons
interested are entitled to share in it, the
telegraph authority may pay into the court
of the District Judge such amount as he
deems sufficient or, where all the disputing
parties have in writing admitted the amount
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tendered to be sufficient or the amount has
been determined under sub-section (3),
that
amount; and the District Judge, after giving
notice to the parties and hearing such of
them as desire to be heard, shall determine
the persons entitled to receive the
compensation or, as the case may be, the
proportions in which the persons interested
are entitled to share in it.
(5) Every determination of a dispute by a
District Judge under sub-section (3) or sub-
section (4) shall be final:
Provided that nothing in this sub-section
shall affect the right of any person to
recover by suit the whole or any part of any
compensation paid by the telegraph
authority, from the person who has
received the same.”
23. Section 10 of the 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. The provision of Section 10(b) of the
Telegraph Act, 1885 makes it abundantly clear
that while acquiring the power to lay down
telegraph lines, the Central Government does not
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acquire any right other than that of user in the
property. Further, Section 10(d) of the 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 persons
interested for any damage sustained by them by
reason of the exercise of those powers.
24. As Power Grid is given the powers of
telegraph authority, Rule 3(1) of the 2006 Rules
ceases to apply in the case of Power Grid by
virtue of exception clause contained in sub-rule
(4) of Rule 3 which reads as under:
“3. (4) Nothing contained in this rule shall
effect the powers conferred upon any
licensee under Section 164 of the Act.”
25. We, thus, have no hesitation in rejecting the
argument of the writ petitioner that the
impugned action of the Power Grid was contrary
to the provisions of the Electricity Act, 2003.”
.... .....
32. In view of the above reasons and particularly
in view of the fact that the challenge to the two
projects are also found to be motivated with
personal interest overriding larger public interest,
we have no hesitation in holding that the Writ
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Appeals are devoid of merits and deserve to be
dismissed. We direct the respondents to produce
a copy of this order before all forums, Civil,
Judicial or Quasi Judicial to ensure that the
project or such other projects are not injuncted
from further progress by order of any Court or
any Judicial Authority."
(viii) R.Raja & others Vs. District Collector & others in SLP
(C) No.11596 of 2019 dated 22.07.2019.
In the above, SLP, the order passed by a Division
Bench of this court stood confirmed as against
the petitioners.
(ix) Vai Palanisamy Vs. Union of India & others in
W.A.No.2167 of 2019 dated 29.07.2019.
"9. The issue in this regard has been discussed
in detail by two Division Benches of this Court by
the aforesaid quoted portions. The position of law
is fairly well settled by the dismissal of the
Special Leave Petition by the Honourable
Supreme Court, wherein it is held that the
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projects of public importance like setting up of
power transmission lines do not call for
interference by the Courts of law in the first
instance. As we have seen above, the filing of
the writ petition itself was premature. The
petitioners seems to have made no effort in
eliciting the necessary information from the
respondents. They rather came to the Court to
initiate such enquiry by this Court, which could
not have been encouraged. The right to receive
compensation by the individuals, whose land is
being used for setting up of such power
transmission line or power, is not even in
question. The compensation paid by the
respondent Corporation in such case shall be
paid in accordance with the provisions of law and
there is no dispute on that. It seems the
petitioners / appellants approached this Court on
a foundationless apprehension against the public
notice itself, without making the necessary
enquiry from the respondent Corporation. If their
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land was to be used for setting up a transmission
line in question, the compensation procedure and
payment of compensation would have definitely
ensued, but just putting the project of public
importance into litigation seems to have been the
aim of the writ petitioners / appellants. We have
also quoted above the procedure to be adopted
by the Power Grid Corporation, which was duly
quoted by the learned Single Judge as well as
the Coordinate Bench. Whenever the land in
question is identified with the survey numbers,
the respondent Corporation put to notice all the
individuals concerned under the provisions of the
Indian Telegraph Act, 1885, and the
determination of compensation also takes place
on the other hand. Such details of the land were
not only produced before the learned Single
Judge, but was duly noted by the learned Single
Judge in the order impugned before us.
... ....
11. It is indeed unfortunate that the pendency of
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this litigation and other similar litigations in such
cases unnecessarily interferes with the execution
of such projects of public importance, even
though there are no stay orders passed in such
cases. Indirect costs are incurred by the public
authorities in the form of escalation of costs by
delay in projects etc., and the public at large are
deprived of the benefit of such projects of public
importance. "
(x) M.Duraisamy Vs. The District Collector & another in
WP (MD) No.17167 of 2019 dated 27.08.2019.
"In this case, the learned Single Judge of this
court has decided the issue as against the
petitioner therein by following the decision in
R.Raja and others v. The District Collector,
Dharmapuri and others in W.A.No.72 of 2019
dated 11.4.2019."
(xi) Mr.P.Duraisamy Maharajha Rice Mills (P) Ltd., Vs The
District Collector cum District Magistrate in W.A.No.3913 of
2019 dated 25.11.2019.
"6. The power to enter upon any of the land
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and erect towers remains undisputed in view of
the provisions of the Indian Telegraph Act,
1885. Nonetheless, there is no bar for a person,
who contests his claim, otherwise invoking the
common law remedy. But the Act being a
Special Act, also provides for compensatory
relief by moving an application to be considered
by the District Judge concerned. We, therefore,
find that the right to enjoy the property and not
to be dispossessed otherwise than in
accordance with law in view of Article 300-A of
the Constitution of India, has been taken care
of in the 1885 legislation itself. The said Code is
a complete Code and the appellant has remedy
to claim compensatory damages from the
department in the event the appellant is
aggrieved on account of crossing of High
Tension Transmission Line over its lands
causing any damage, which, in our opinion, can
always be compensated in terms of money. We,
therefore, do not intend to assess the alleged
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loss or sufferance being complained of by the
appellant in exercise of the extraordinary
jurisdiction under Article 226 of the Constitution
of India. This, therefore, in our opinion, would
not be the appropriate remedy. It is for the
appellant to approach the appropriate forum for
redressal of any grievance and if any such
application is filed, the same shall be dealt with
in accordance with law. "
12. In addition to the above, the learned Senior Counsel
appearing for SUZLON has relied upon an unreported recent
judgment of a Division Bench in W.A.Nos.1096 and 1098 of 2020 and
970 of 2020 dated 20.1.2021 wherein it has been held as under:-
Judgment 1096 and 1098 of 2020 dated 20.1.2021.
"12. We are concern with the larger public
interest. Secondly, the law on the subject is
quite settled and repeated on number of
occasions by this Court. We do not want to
reproduce the law laid down once again. The
role of the District Collector, while exercising
the power under Section 16 of the Act in an
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application filed under Section 10 of the Act, is
very limited, which is to facilitate the
completion of the project by removing the
obstruction, if any. Unfortunately, the District
Collector, Karur has misconstrued the
provisions and the role required to be played
by him. As a District Magistrate, he is not
concerned with the project. He is neither the
appellate authority nor an adjudicating one.
13. The project has been conceived by a
Government of India undertaking, after
conducting elaborate study through an expert
body. Such a wisdom resulting in the project
being conceived is not justifiable nor the same
has been questioned before us. As stated, the
scope and ambit of Section 164 of the
Electricity Act and Sections 10 and 16 of the
Act has been completely misconstrued. We may
add that the learned single Judge has not been
furnished with the appropriate judgments
governing the field, which we are concern with.
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We do not wish to say anything more. Even on
facts, the project is almost nearing completion.
The project is to be completed by laying down
towers connecting the overhead lines.
Certainly, there is a public interest involved.
The private respondents are merely executing
the work. Ultimately, the project has been
conceived and to be executed by M/s.Solar
Energy Corporation of India Ltd., which is a
Government of India undertaking. We do not
find any malice in law or fact. On the question
of transparency, we are not inclined to
consider, as the project is nearing completion.
14. Thus, looking from any perspective,
we are constrained to hold that the District
Collector, Karur is required to pass appropriate
orders to facilitate the completion of the work."
13. This Court paid its anxious consideration to the rival
submissions made and also perused the materials placed on record.
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14. The power generating company viz., M/s.Suzlon Global
Services Ltd., (in short SUZLON) is a TANGEDCO authorized
Company in the process of laying 26 High Tension Towers to carry the
power generated by them by way of Windmills from Nezhali 110/33
Sub Station located at Nezhali Village of Kangayam Taluk, Tiruppur
District to the Rasipalayam 400 KV Substation which was initiated
with an object of uninterrupted supply of electricity to rural areas and
in that process, after completing the erection of 15 towers and when
they intended to erect another 11 towers and carry the overhead
lines through the lands of the petitioners, the same was objected to
by the petitioners and hence the SUZLON had to approach the
competent Authority viz., the District Collector, who, in turn, had
passed the 'enter upon permission' which is the subject matter of
these writ petitions.
15. The major grounds raised by the writ petitioners is that the
order of 'enter upon permission' is passed without properly serving
notice to some of the land owners and without considering the
grievances expressed by some of the land owners who had
participated in the enquiry conducted by the competent authority and
such order has been obtained by SUZLON by misleading as if they are
the authority under the Indian Telegraph Act.
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W.P.Nos.17334 & 15896 of 2020
16. On the above grounds raised by the writ petitioners, this
court frames the following issues for deciding this case:-
i) Whether the petitioners/land owners are entitled for
any notice before passing the impugned order under the
Telegraph Act granting permission to enter upon?
ii) Whether there is any violation of principles of natural
justice on the audi alteram partem?
17. Issue No.1:- Whether the petitioners/land owners are
entitled for any notice before passing the impugned order
under the Telegraph Act granting permission to enter upon?
On this issue, a Division Bench of this Court in S.Selvaraj –Vs-
The District Collector, Erode District and others etc dated
16.07.2019 in W.A.No.2032 of 2019 wherein a similar issue was
involved with a similar request on the same project but, in some
other area, has elaborately dealt with and with regard to the
requirement of a notice to the landlords has also been discussed and
held as follows:-
"13. Section 10 that grants authority only for the
limited purpose of establishing or maintaining a
telegraph. It does not provide any other right to
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the telegraph authority. It is only a user in respect
of the property over, which a telegraph line passes.
By exercising such power, the authority does not
become owner of the property and all that it gets is
right of user of the property. The Section does not
contemplate any notice or hearing before exercising
such power to draw a telegraph line, although it
envisages payment of compensation. However, it
would not make exercise of power under Section
10, arbitrary or violative of the principles of Natural
Justice as contemplated under Articles 14 and 21 of
the Constitution. The right to property under Article
300A is a Constitutional right. It is not absolute and
it can be taken away by authority of law.
14. But Section 10 of the Telegraph Act,
1885, does not take away any right to property. It
only creates some restrictions on the enjoyment of
right to property by creating a right of user in the
telegraph authority. Proviso (a) to Section 10
restricts the power of the telegraph authority only
to the draw a telegraph line. It does not grant the
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Authority provision to use the power for any other
purpose. The object is to provide to the
Government or to any other licensee to place
telegraph lines and
posts which are projects, eminently in public
interest. Further, under Proviso (d) the Authority
should cause as little damage as possible while
undertaking the work. It also mandates that the
Authority must pay compensation to the affected
person for the damage caused by reason of
exercise of the power. Thus, Section 10 prescribes
a just and fair procedure for placing limitations on
full enjoyment of property. It therefore, cannot be
said to be arbitrary and violative of Articles 14 and
21 or 300-A of the Constitution of India, just
because it does not contain any provision for
issuance of notice or giving hearing to affected
person before the work is undertaken.
15. When the provision of Section 10 is read
with Sections 16 and 17, it would become clear that
under the scheme of Part-III of the Telegraphic Act,
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1885 a balance has been struck between the
necessity of public interest and the individual need
by addressing the grievance of the aggrieved.
Notice and hearing have to be read in these
sections as they confer a discretion upon the
District Magistrate to adjudicate on the justifiability
of the objection or acceptability of the suggestion
and no public authority can exercise a discretion
arbitrarily. Any exercise of such discretion is likely
to have ripple effects and civil consequences for the
owner or occupier of the private land on the one
hand and the escalation in cost and delay in
execution on the other hand. Therefore, provision
of fair opportunity
of hearing in exercise of such a discretion is in
consonance with the mandate of Articles 14 and 21.
We hold that Section 10 by virtue of Sections 16
and 17, on the whole provides for a fair procedure
for a partial deprivation of right to property and
simultaneous right to TANTRANSCO to enter upon
the property only as an user to lay electric Towers.
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16. We are conscious of the fact that
finalization of route of transmission line is a highly
technical and specialized subject. Also, the route of
transmission line in this case runs into several
hundreds of kilometers and it passes over different
lands of different persons.
17. TANTRANSCO had acquired only right of
user in the lands in question and that too in lieu of
payment of full compensation for the damages
caused. The Rule of Natural Justice is subserved by
the procedure laid down in Part III, particularly in
Sections 10, 16 and 17 of the Telegraph Act, 1885.
Thus, we find that it is not necessary to give notice
to the owners or occupants of private lands at the
time of finalization of the route of the transmission
line or even at the time of commencement of the
project."
18. In view of the above specific finding of this court in the
above referred decision, this court holds that no notice is required to
be issued by the respondent.
19. Issue No.2:- Whether there is any violation of
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principles of natural justice on the audi alteram partem?
A perusal of the impugned order and the materials available on
record would disclose that the prior to passing of the impugned order
on 8.10.2020, notice was served for the enquiry scheduled on
different dates viz., 11.9.2020, 18.9.2020 and 1.10.2020 and to the
land owners who appeared for enquiry on the scheduled dates, the
relevant documents were supplied vide letter in Reference
No.Na.Ka.No.6450/2020/E5 dated 15.9.2020 and they were given a
chance to participate in the enquiry on 1.10.2020 and to express their
grievances and despite such an opportunity, some of the land owners
have not appeared for the enquiry and some of them have appeared
and expressed their grievances and after considering such
grievances and also the future necessity of electricity and
uninterrupted power supply to the rural areas, the District Collector
has proceeded to pass the order of 'enter upon permission'.
20. With regard to non service of notice upon some of the land
owners, Mr.Elumalai, learned Additional Government Pleader, who
assisted the court, on behalf of the State has produced the relevant
documents on the attempt made by the District Collector in serving
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the notice to the petitioners and has proceeded after their refusal as
discussed above. This contention with regard to the service of notice
has not been denied by the petitioners in their common rejoinder filed
by them and this court has also decided the issue that the
petitioners are not entitled for a notice before passing the impugned
order under Section 10 of the Telegraph Act.
21. A perusal of the grounds raised by the petitioners in
W.P.No.17334 of 2020 reveals that the petitioners came through the
notices served to the neighbouring land owner about the project,
however, they have not initiated any step to participate in the
enquiry. When the petitioners were aware of the enquiry and has also
perused the contents of the summons and they have abstained from
participating in the enquiry, whatever their objections may be, they
should have participated in the enquiry and submitted their views in
the enquiry. After keeping away from the enquiry, the petitioners are
not entitled to agitate by contending that there is violation of
principles of natural justice. Therefore, the second issue is also
decided in favour of the respondents that there is no violation of
principles of natural justice.
22. Accordingly, the writ petitions are dismissed. The
Respondents 7 and 8 in W.P.No.15896 of 2020 shall provide adequate
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police protection for erection of tower lines as and when a request is
made for the same. The District Collector shall hold an enquiry with
regard to payment of compensation to be paid to the petitioners for
their lands and order a fair compensation within a period of two
months from the date of receipt of a copy of this order. No costs. The
connected Miscellaneous Petitions are also dismissed.
31.3.2021.
Index: Yes/No.
ssk/mrm.
To
1. The District Collector,
Collectorate,
Palladam Road,
Tiruppur 641 664.
Tiruppur District.
2. The Chairman,
Tamil Nadu Electrical
Transmission Corporation,
144, Anna Salai, Chennai 600 002.
3. The Superintending Engineer,
General Construction Circle,
Electrical Wire Line Construction,
Tamilnadu Electrical
Transmission Corporation,
Tatabad, Coimbatore 641 012.
4. The Executive Engineer,
Electrical Wire Line Construction,
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W.P.Nos.17334 & 15896 of 2020
General Construction Circle,
Tamilnadu Electrical
Transmission Corporation,
Perundurai, Erode District.
5. The State of Tamil Nadu,
rep. by its Principal Secretary
to the Government,
Energy Department,
Fort St. George,
Chennai 600 009.
6. The Joint Managing Director,
Tamil Nadu Generation & Distribution
Corporation (TANGEDCO),
10th Floor, NPKRR Maligai,
144 Anna Salai, Chennai 600 002.
7. The Chief Engineer/NCES,
Tamil Nadu Generation & Distribution
Corporation (TANGEDCO),
2nd Floor, Eastern Wing,
NPKRR Maligai, 144 Anna Salai,
Chennai 600 002.
8. The Superintendent of Police,
Tiruppur District Police,
Tiruppur.
9. The Deputy Superintendent of Police,
Dharpapuram Range, Tiruppur District
10.M/s.Suzlon Global Services Ltd.,
rep. by its Managing Director,
104, 1st Floor, Delta Wing,
Raheja Towers,
177, Anna Salai, Chennai 600 002.
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W.P.Nos.17334 & 15896 of 2020
B.PUGALENDHI,J.
ssk/mrm.
P.D. Order delivered in
W.P.Nos.17334 and 15896 of 2020
Delivered on
31.3.2021
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