Jayanthi vs The State Of Tamil Nadu
2021 Latest Caselaw 11297 Mad

                                                                       W.A. No. 1365 of 2021

                             IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 06.05.2021

                                                     CORAM:

                              THE HON'BLE MR.JUSTICE R.SURESH KUMAR
                                               and
                             THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU

                                              W.A. No. 1365 of 2021
                                                      and
                                             C.M.P. No. 8490 of 2021

                      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                                    ... Appellants

                                                         Vs.

                      1.The State of Tamil Nadu,
                        Represented by its Principal Secretary
                        to the Government,
                        Energy Department, Fort St. George,
                        Chennai – 600009.

                      2.The Joint Managing Director,
                        Tamil Nadu Generation & Distribution
                         Corporation (TANGEDCO),
                        10th Floor, NPKRR Maligai,
                        144, Anna Salai, Chennai – 600002.
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                                                                   W.A. No. 1365 of 2021



                      3.The District Collector,
                        Office of the District Collector,
                        Tiruppur District, Tiruppur.

                      4.The Chief Engineer / NCES,
                        Tamil Nadu Generation & Distribution
                          Corporation (TANGEDCO),
                        II Floor, Eastern Wing,
                        NPKRR Maligai, 144, Anna Salai,
                        Chennai – 600002.

                      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,
                        Dharapuram Range, Tiruppur District.

                      9.M/s Sulzon Energy Ltd.,
                       Represented by its General Manager,
                       104, 1st Floor, Delta Wing,
                       Raheja Towers,
                       177, Anna Salai,
                       Chennai – 600002.                           ... Respondents




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                                                                                W.A. No. 1365 of 2021

                              This Appeal has been filed under Clause 15 of Letter Patent

                      Appeal against the order dated 31.03.2021 passed in W.P. No. 15896 of

                      2020.


                              For Petitioner      : Mr. V.Raghavachari
                                                    For Mr. M.Guruprasad

                              For Respondents : Mr.Ajmal Khan, Senior Counsel
                                                For M/s. Ajmal Associates (For R9)

                                                   Mrs. A.Srijeyanthi (For R1 to R3,R7,R8)
                                                   Special Government Pleader

                                                   Mr. Abdul Saleem (For R4 to R6)

                                                     JUDGMENT

(through video conference) (Order of the Court was made by P.D.AUDIKESAVALU, J)

Heard Mr. V.Raghavachari, Learned Counsel appearing for the

Appellants, Mrs. A.Srijeyanthi, Learned Special Government Pleader,

who takes notice for the First to Third, Seventh and Eighth Respondents,

Mr. Abdul Saleem, Learned Counsel, who takes notice for the Fourth to

Sixth Respondents and Mr. Ajmal Khan, Learned Senior Counsel

of M/s. Ajmal Associates, Learned Counsel for the Caveator / Ninth

Respondent, and perused the materials placed on record, apart from the

pleadings of the parties.

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W.A. No. 1365 of 2021

2. The Appellants had filed the Writ Petition in W.P. No. 15896 of

2020 in this Court impeaching the orders in Na.Ka. No. 6450/2020/E5

dated 08.10.2020 passed by the Third Respondent granting permission to

the Ninth Respondent to erect electric towers in the respective lands of

the Appellants under Section 16(1) of the Indian Telegraph Act, 1885

(hereinafter referred to as 'the Act' for brevity). The grievance ventilated

by the Appellants in the Writ Petition was that the 'enter upon permission'

was granted without proper service of notice to the land owners and

without considering the objections raised by those who had participated

in the enquiry, and that the Ninth Respondent had mislead the Third

Respondent as if it was an 'Authority' under the Act. The Writ Court after

referring to the various decisions governing the controversy arrived at the

conclusion that neither the Appellants were entitled to any notice before

granting any permission nor there was any violation of principles of

natural justice and dismissed the Writ Petition, which is assailed in this

Writ Appeal.

3. The primordial contention of the Learned Counsel appearing for

the Appellants in this Appeal is that though a specific contention had http://www.judis.nic.in

W.A. No. 1365 of 2021

been raised before the Writ Court that the Ninth Respondent was not an

'Authority' entitled to invoke Section 16 of the Act, the same has not been

considered while rejecting the other contentions raised. It is brought to

notice by the Learned Counsel appearing for the Ninth Respondent that

in the order dated 30.11.2011 in W.P. No. 22967 of 2011, etc., batch

filed by similarly placed land owners against the Ninth Respondent, this

Court has held that no license was required for generating company for

establishing, operating or transmitting a dedicated transmission line,

except the conditions mentioned therein and its compliance was not

disputed. However, on appeal, the Division Bench of this Court by order

dated 12.01.2012 in W.A. No. 2401 of 2011, etc., batch modified that

order based upon a subsequent agreement entered between the parties,

meaning thereby the order passed in that batch of Writ Petitions cannot

be said to have attained finality on the proposition of law now canvassed

by the Appellants in this case. It is also stated by the Learned Counsel

appearing for the Ninth Respondent that most of the Appellants have

entered into compromise with the Ninth Respondent for erection of

towers in their respective lands and receive compensation after the order

was passed in the Writ Petition and it is only in respect of one tower, the

erection is yet to be completed. Learned Counsel appearing for the http://www.judis.nic.in

W.A. No. 1365 of 2021

Appellants expresses his inability to confirm the said facts without

instructions from the concerned persons.

4. Though there does not appear to be any infirmity in the impugned

order dated 31.03.2021 in W.P. No. 15896 of 2020 upholding permission

granted to the Ninth Respondent under Section 16(1) of the Act to enter

upon the property of the Appellants to erect the electric towers in the

respective lands of the Appellants, it would be necessary at this juncture

to refer to Section 17 of the Act, which reads as follows:-

“ 17. Removal or alteration of telegraph line or post, on property other than that of a local authority :—

(1) When, under the foregoing provisions of this Act, a telegraph line or post has been placed by the telegraph authority under, over, along, across, in or upon any property, not being property vested in or under the control or management of a local authority, and any person entitled to do so desires to deal with that property in such a manner as to render it necessary or convenient that the telegraph line or post should be removed to another part thereof or to a higher or lower http://www.judis.nic.in

W.A. No. 1365 of 2021

level or altered in from, he may require the telegraph authority to remove or alter the line of post accordingly: Provided that, if compensation has been paid under section 10, clause (d), he shall, when making the requisition, tender to the telegraph authority the amount requisite to defray the expense of the removal or alteration, or half of the amount paid as compensation, whichever may be the smaller sum.

(2) If the telegraph authority omits to comply with the requisition, the person making it may apply to the District Magistrate within whose jurisdiction the property is situate to order the removal or alteration.

(3) A District Magistrate receiving an application under sub-section (2) may, in his discretion, reject the same or make an order, absolutely or subject to conditions, for the removal of the telegraph line or post to any other part of the property or to a higher or lower level or for the alteration of its form; and the order so made shall be final.”

It is evident from the same that even after 'enter upon permission' has

been granted under Section 16(1) of the Act, a land owner is entitled to http://www.judis.nic.in

W.A. No. 1365 of 2021

make an application to the jurisdictional District Magistrate for removing

or re-locating the electric towers that have been erected under Section 17

of the Act. Having regard to the pragmatic considerations of cost

effectiveness and time saving measures in the larger public interest, it

would be appropriate at this stage taking into account the aforesaid rival

submissions made by the Learned Counsel appearing for the parties that

that enquiry under section 17(2) of the Act can be immediately conducted

by the Third Respondent to examine all the contentions that are raised by

the Appellants, including as to whether the Ninth Respondent is an

'Authority' entitled to invoke section 16 of the Act, the route for locating

the electric towers, the amount of compensation payable and the

compromise said to have been entered by the Ninth Respondent with the

Appellants. In view of that proposed enquiry, the further implementation

of the orders in Na.Ka. No. 6450/2020/E5 dated 08.10.2020 passed by

the Third Respondent under section 16(1) of the Act shall be kept in

abeyance and the parties shall maintain status quo till its completion.

Depending upon its outcome, further action shall proceed in accordance

with law. Though obvious, it is made clear that no view is expressed by

this Court on the correctness or otherwise on the rival contentions of the

parties in this regard.

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W.A. No. 1365 of 2021

5. In order to expedite the proceedings, Learned Special Government

Pleader, on instructions, states that enquiry under section 17(2) of the Act

would be conducted at 11.00 a.m. on 21.05.2021 before the Third

Respondent and all the parties concerned including the Appellants and

the Ninth Respondent may appear on the said date. The Appellants shall

place their objections in writing before the Third Respondent on the said

hearing and no further extension of time shall be granted for the same. If

the Third Respondent is not in a position to take up the matter for hearing

on that date, the adjourned date of hearing shall be informed to all parties

concerned in the prescribed manner. As it is stated that the practice has

been prevalent that parties can be accompanied by their legal practitioner

to represent on their behalf, they may avail such benefit. After affording

full opportunity of personal hearing to all parties concerned including the

Appellants and the Ninth Respondent and making necessary inspection of

the property through the concerned officials, if necessary, the Third

Respondent shall deal with each of the contentions raised by the

respective parties and shall pass reasoned orders on merits in accordance

with law and shall communicate the decision taken to them under written

acknowledgement and file a report of such compliance before the http://www.judis.nic.in

W.A. No. 1365 of 2021

Registrar (Judicial) of this Court by 30.06.2021 without fail.

In the result, the Writ Appeal is disposed on the aforesaid terms.

No costs.

[R.S.K., J.] [P.D.A., J.] 06.05.2021 Index: Yes/No

Internet: Yes/No

Maya

Note : Issue order copy by 13.05.2021.

To

1.The Principal Secretary to the Government, Energy Department, Fort St. George, Chennai – 600009.

2.The Joint Managing Director, Tamil Nadu Generation & Distribution Corporation (TANGEDCO), 10th Floor, NPKRR Maligai, 144, Anna Salai, Chennai – 600002.

3.The District Collector, Office of the District Collector, Tiruppur District, Tiruppur.

4.The Chief Engineer / NCES, Tamil Nadu Generation & Distribution Corporation (TANGEDCO), II Floor, Eastern Wing, http://www.judis.nic.in

W.A. No. 1365 of 2021

NPKRR Maligai, 144, Anna Salai, Chennai – 600002.

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, Dharapuram Range, Tiruppur District.

9.M/s Sulzon Energy Ltd., Represented by its General Manager, 104, 1st Floor, Delta Wing, Raheja Towers, 177, Anna Salai, Chennai – 600002.

Copy to

1. Jayanthi W/o. K.Vijayakumar 144, Bommanaickanpatti Poolavadi Post Dharapuram Taluk Tiruppur District – 642206.

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W.A. No. 1365 of 2021

2. S.Bhuvaneswari W/o. Sampath Kumar Munduvelampatti Village Dharapuram Taluk Tiruppur District.

3. S.Parimala Devi W/o. Subramaniam Uththampalayam Pappini Village Kangeyam Taluk Tiruppur District.

4. Shanthi W/o. Sundaravadivel 24, Senthil Nagar Udaiyampalayam Coimbatore Taluk & District.

5. T.Govindaraj S/o. Thirumalaisamy Gounder Semmampalayam Dhayampalayam (Post) Uthiyur (Via) Tiruppur District – 638703.

6. S.Venkidusamy S/o. Subbaraya Gounder Semmampalayam Dhayampalayam (Post) Uthiyur (Via) Tiruppur District – 638703.

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W.A. No. 1365 of 2021

7. T.Kangeya Gounder S/o. Thirumalaisamy Gounder Semmampalayam Dhayampalayam (Post) Uthiyur (Via) Tiruppur District – 638703.

8. T.Palanisamy S/o.Thirumalaisamy Gounder 37, Murungapalayam Cross Street Kumar Nagar, Gandhi Nagar (Post) Tiruppur – 641603.

9. A.Balasubramaniam S/o. Appukutti Gounder Semmampalayam Dhayampalayam (Post) Uthiyur (Via) Tiruppur District – 638703.

10. Subramaniam S/o. Chinnasamy Gounder Thamburettipalayam Athikattu Thottam Dhayampalayam (Post) Uthiyur (Via) Tiruppur District – 638703.

11. Ganesamoorthy S/o. Palanisamy 35, Mahalakshmi Garden Second Street Sornapuri Avenue 15-Velampalayam Tiruppur District – 641652.

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W.A. No. 1365 of 2021

R.SURESH KUMAR, J.

and P.D.AUDIKESAVALU, J.

Maya

W.A. No. 1365 of 2021

Dated : 06.05.2021

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