Madras High Court
Seerathal vs The Union Of India on 14 August, 2023
W.P.(MD).No.4715 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 22.09.2023
DELIEVERED ON: 05.10.2023
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD).No.4715 of 2020
and
W.M.P.(MD).Nos.4088, 8780 and 8781 of 2020
Ramaswamy (Died)
1.Seerathal
2.Rajamani
3.Rajalakshmi ... Petitioners
(P1 to P3 are substituted vide Court Order dated 14.08.2023 in
W.M.P.(MD).No.15921 of 2023 in W.P.(MD).No.4715 of 2020)
Vs.
1.The Union of India,
Through its Secretary,
Ministry of Poer, Shram Shakti Bhavan,
Rafi Marg, New Delhi – 110 001
(R-1 is substituted vide Court Order dated 14.08.2023 in
WMP(MD).No.15925 of 2023 in W.P.(MD).No.4715 of 2020)
1/20
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W.P.(MD).No.4715 of 2020
2.The Government of Tamil Nadu,
Through its Secretary,
Department of Energy,
Fort St George,
Chennai – 600 009.
3.The Tamil Nadu Transmission Company Limited,
Anna Salai, Chennai – 2,
Through its Managing Director
4.The Tamil Nadu Electricity Department,
Generation and Distribution Corporation,
Anna Salai, Chennai – 2.
5.The District Collector,
Karur District,
Karur.
6.The Deputy General Manager,
Power Grid Corporation of India Limited,
400/230 KV, Sub Station, Coimbatore Main Road,
K.Paramathi Post, Karur District. ... Respondents
(R-6 impleaded vide Court Order dated 06.08.2020 in
W.M.P.(MD).No.8186 of 2020 in W.P.(MD).No.4715 of 2020)
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarified Mandamus, to call for the
records of the G.O.Ms.No.86 dated 30.10.2019 on the file of the second
respondent and quash the same and further direct the respondents to acquire the
petitioner's land in S.No.1138 in Kodanthur South Village, Aravakurichi Taluk,
Karur District with interest from the date of occupation calculated as per the
2/20
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W.P.(MD).No.4715 of 2020
provisions of “The Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013”.
For Petitioner : Mr.T.S.R.Venkata Ramana,
Senior Counsel,
For M/s.V.Janaki Devi
For R-1 : Mr.M.D.Poornachari
For R-2 and R-5 : Mr.C.Baskaran,
Government Advocate.
For R-3 and R-4 : Mr.S.Deenadhayalan
Standing Counsel
For R-6 : Mr.S.Suresh,
For M/s. Aiyar and Dolia
ORDER
This Writ Petition is filed to quash the impugned order G.O.Ms.No.86
Energy (A1) Department dated 30.10.2019 on the file of the second respondent
and further direct the respondents to acquire the petitioner's land in S.No.1138
in Kodanthur South Village, Aravakurichi Taluk, Karur District with interest
from the date of occupation calculated as per the provisions of “The Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013”, (hereinafter referred to Right to Fair Compensation
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W.P.(MD).No.4715 of 2020
Act, 2013).
2. The brief facts are that the petitioner is an agriculturist owning 2.05
acres of land in S.No.1138, Kodanthur South Village Aravakurichi Taluk, Karur
District. The fifth respondent Collector by an order dated 21.06.2019 has
permitted the fourth respondent to enter into the petitioner’s land and erect high
tension tower base and stringing corridor area to transmit electricity from
Pugalur to Thiruvalam, which passes through the petitioner's land. The Union
and State Government are making a National Grid for supply of electricity and
it is for the general public. But while erecting, the Government is taking away
the lands of citizens. Hence, the Government is liable to pay just and equitable
compensation under the Right to Fair Compensation Act. The third and fourth
respondents are agencies belonging to the Government of Tamil Nadu, who are
executing the transmission project in Tamil Nadu, through the contractors. The
District Collector is helping the other respondents to establish a National Power
Grid. In the present case, the Power Grid Corporation is transmitting 400 KV
power, which is a high voltage and dangerous power. The high velocity power,
when touched can destroy men and matters in a fraction of second. Nothing
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W.P.(MD).No.4715 of 2020
can survive under the line to the depth of 10 meters (32 feet 10 inches) and 60
meters width (200 feet). The respondents are aware of this danger to society
under the High Transmission Power. Hence, the Government should pay
compensation for the entire land of 2.05 acres and the petitioner is entitled to be
paid just and fair compensation for the land on which the tower base is
established and as well as the line crossing in the petitioner's property. The
contention of the petitioner is that the entire area would become unusable. But
the respondents 3 to 5 are giving out that the petitioner is entitled to
compensation under G.O.Ms.No.86, but only pittance is paid for the tower base
area of three cents, for four legs of the tower are embedded into the soil and the
stringing corridor area will be paid 20% of the assets value of the land. Since
the G.O. is not paid just and fair compensation by calculating the area which
has become unusable, the said GO is illegal, arbitrary and unconstitutional and
suffers from the vires of excessive delegation and exercise of unjust executive
power. Hence, the petitioner is before this Court.
3. Pending Writ Petition, the petitioner died on 07.09.2020 and the legal
heirs of the deceased petitioner are substituted as parties. It was the case of the
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W.P.(MD).No.4715 of 2020
third and fourth respondents that the project belongs to Power Grid Corporation
India Limited and the said Company had filed a petition to implead themselves
as party which was allowed on 06.08.2020. The petitioner has impleaded
Union of India through another impleading petition.
4. The sixth respondent Power Grid Corporation of India Limited, has
filed counter stating that it is the Government of India Enterprise and the
Central Transmission Utility coming under the Ministry of Power. It is a
Corporation of National Importance incorporated as a “Government Company”,
under the provisions of the Companies Act, 1956. The sixth respondent is
empowered under the provisions of Electricity Act, 2003 and the Indian
Telegraph Act, 1885 to place and maintain power transmission towers and to
draw transmission lines in any immovable property. As per Section 14 of the
Electricity Act, 2003, the 'Central Transmission Utility' shall be deemed to be a
'Transmission Licensee', under the Act. As per Section 164 of 'The Electricity
Act, 2003', the appropriate Government may by order in writing for the placing
of electric lines or electrical plant for the transmission of electricity confer upon
the Licensee any of the powers which the Telegraph authority possesses under
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W.P.(MD).No.4715 of 2020
the Indian Telegraph Act, 1885. The Government of India, in exercise of
powers conferred under Section 164 of the Electricity Act, 2003, has passed an
order dated 24.12.2003 vide Gazette of India No.1148 authorizing the Power
Grid Corporation of India Limited to exercise all powers vested in the
Telegraphic Authority. Under Section 10 of the Telegraph Act, 1885, the
authority is empowered to draw lines, however cause minimum damage to the
lands. Under Section 16(1) of Telegraph Act, 1885, if any person resists or
obstructs, the District Magistrate may in his discretion permit to exercise their
duty. Based on these powers, the 6000 MW capacity HVDC Bi-pole link was
proposed and recommended by Southern Regional Power Committee (SRPC).
Therefore, in order to evacuate the power, imported through this link to
different parts of State of Tamil Nadu, the associated 400KV Lines were
recommended by Southern Regional Power Committee and approved by the
Ministry of Power, Government of India. The said Pugalur Transmission Lines
run through 50 kms routed through Karur and Tirupur Districts with 138 towers
was completed and commissioned on 30.03.2020. The respondent Corporation
has successfully executed about 1,64,511 Circuit Kilometers of Power
Transmission Lines and there are 249 numbers of sub-stations having
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W.P.(MD).No.4715 of 2020
transformation capacity of about 4,14,774 MVA (Mega Volt Ampere) all over
the nation of India. The transmission lines have stood the test of time and had
not had any impact on human beings, animals, plants or any geological or on
ecological system and there has been no complaint due to effects of electric
field. It is approved by International Standards and Designs which are
absolutely safe. With regard to the relief sought for production of G.O.Ms.No.
281 dated 07.09.2017, Guidelines dated 15.10.2015, G.O.Ms.No.63 dated
22.11.2017 are concerned, the same are all available in the public domain. It is
pertinent to point out here that G.O.Ms.No.86 dated 30.10.2019 which is the
subject matter of challenge in the instant Writ Petition was issued in
supersession of G.O.Ms.No.63 dated 22.11.2017 and the same is referred to in
the Government Order dated 30.10.2019 as well. Hence, the petitioner should
have been aware about the issuance of G.O.Ms.No.63 dated 22.11.2017. With
regard to production of impact assessment report is concerned, the same is not
relevant for the adjudication of the present Writ Petition. And the
Environmental Impact Assessment Notification will apply only in respect of
projects conceived in Eco-Sensitive Zones around National Parks and Wildlife
Sanctuaries and not otherwise. The Power Transmission Line Projects of this
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W.P.(MD).No.4715 of 2020
respondent do not require environmental clearance. When such is the position,
the question of furnishing the social environmental and other impact
assessment report as sought for, does not arise. The transmission lines were
drawn as per the prescribed law and norms. Hence, the respondents prayed to
dismiss this Writ Petition.
5. The first respondent has filed counter stating that the appropriate
authority is the sixth respondent and the challenge to G.O. is passed by the
State of Tamil Nadu and the petitioner has not sought any relief against the first
respondent. Hence, the first respondent prayed to pass appropriate orders.
6. Heard Mr.T.S.R.Venkat Ramana, learned Senior Counsel, for
M/s.V.Janaki Devi, for the petitioner, Mr.M.D.Poornachari, learned counsel for
the first respondent, Mr.C.Baskaran, learned Government Advocate, for the
respondents 2 and 5 and Mr.S.Deenadhayalan, learned Standing Counsel for the
respondents 3 and 4 and perused the records.
7. The sum and substance of the argument of the petitioner is that
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W.P.(MD).No.4715 of 2020
beneath the line, there is electromagnetic field and it is dangerous for human
existence and no plants will grow, for which the petitioner is relying on a
booklet issued by as Association namely, Uyarmin Gopurangaluku Ethirana
Vivasaya Sangangalin Kootam Iyakkam (cah;kpd; nfhg[uq;fSf;F vjpuhd
tptrha rq;fq;fspd; Tl;L ,af;fk;) wherein, pictures are exhibited, wherein it
shows a person was holding a tube light underneath the High Tension Tower
and the tube light is illuminated. Small plants like Guava were affected due to
the electromagnetic transmission. The human body being a conductor of
electricity is conducting the electricity for which the petitioner shows it by
using a screw driver, where it could be seen a light is illuminated inside the
screw driver. By showing these pictures, the petitioner contended that the
respondents ought to have taken note of the stringing corridor area which
passes through the petitioner’s land. Therefore, the petitioner is submitted that
the compensation granted only for the four legs which stands in 3 cents of land
is absolutely unjust, unfair compensation. The compensation ought to be
calculated for the land even where the stringing corridor area are crossing
through.
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8. The learned Senior Counsel elaborately narrated that right to own
property is a fundamental right guaranteed under the Constitution of India.
Therefore, any damage caused to the land ought to be adequately reasonably
compensated. The learned Senior Counsel further submitted that the
respondents are ‘acquiring’ the said land and hence the new Fair Compensation
Act, 2013 is applicable and not G.O.Ms.No.86. The learned Senior Counsel
submitted that using of land also amount to acquiring the land. This Court is
not able to accept such contention, since under Section 10 of the Telegraph Act,
1885, specifically uses the phrase of “using the land” and no where it has been
stated the land is acquired. The relevant Section is extracted hereunder:
PART III
POWER TO PLACE TELEGRAPH LINES AND POSTS
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 established or maintained by the [Central
Government], or to be so established or maintained;
b. the [Central Government] shall not acquire any right
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W.P.(MD).No.4715 of 2020
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 powers.
9. Section 10 of the Telegraph Act, 1885 was elaborately discussed in
several judgments and consistently, it has held that the Telegraph authority is
only using the land and not acquiring the land. In such circumstances, the Fair
Compensation Act will never be applicable to the present case. In the case of
T.S.T. Kaznavi Vs. Tamil Nadu Electricity Board in W.P.No.36566 of 2007 vide
judgment dated 28.01.2008 it has been held the respondents are only using the
land and there is no question of acquisition, hence it is not necessary to issue
any notice before using the said land. The relevant portion is extracted
hereunder:
“25. It was in E.Venkatesan and others Vs. Chariman, Tamil Nadu Electricity
Board, Madras and others (AIR 1997 Madras 64), S.S.Subramani,J. while
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construing Section 51 of the Electricity (Supply) Act,1948 along with Section 10
of the Indian Telegraph Act,1885, has held that while coordinating the work of
transmission, the Electricity Board need not acquire lands and therefore, no
notice is required to the owner before laying poles or constructing any tower, nor
any consent is required, as the lands are used only for the purpose of laying electric
lines. After analysing the entire case law as well as the provisions of the Act, in
detail, the learned Judge held as under:
“19. From the above settled position of law, it is clear that when the
Electricity Board exercises power under Section 51 of the Electricity Act
read with Section 10 of the Telegraphs Act, they are not acquiring any land.
They are only making use of the land for the purpose of laying electric
lines for which full compensation is given for the damage caused. It is also
clear therefrom that no notice is required to the owner before laying the
poles or constructing any tower, nor any consent is required from them.”
….
28. In any event, on the facts and circumstances of this case, the major point which
is urged by the petitioner is that the property was sought to be acquired without
following due process of law and by virtue of various judgements, especially
relating to the powers of the Board as "State Transmission Utility", there is no
necessity to give any notice for the purpose of erection of tower or for making
"transmission lines" and therefore, the petitioner is not entitled for the relief as
claimed, except the right under Section 10(d) of the Indian Telegraph Act,1885,
which enables the petitioner to get compensation for any damages sustained by
him while the Board exercising its powers as "State Transmission Utility" and the
compensation is determinable as per Section 16 of the Indian Telegraph Act,1885.”
From the above judgment it would be evident that the issue is settled
that the respondents are not acquiring the land. In such circumstances, the
petitioner cannot claim that the respondents are acquiring the property while
erecting high tension towers.
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10. The learned Senior Counsel relied on the fourth schedule of Fair
Compensation Act, 2013 and submitted if the land is acquired under Electricity
Act, the Fair Compensation Act, 2013 is appliable. Under section 105 it is
stated
“105. Provisions of this Act not to apply in certain cases or to apply with certain
modifications.–(1) Subject to sub-section (3), the provisions of this Act shall not apply
to the enactments relating to land acquisition specified in the Fourth Schedule.”
However under the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties)
Order 2015 the Electricity Act is included. The relevant portion of the Order is
extracted hereunder:
“Now, therefore, in exercise of the powers conferred by sub-section (1) of
Section 112 of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), the
Central Government hereby makes the following Order to remove the aforesaid
difficulties namely:-
1. (1) This Order may be called the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
(Removal of Difficulties) Order 2015
(2) It shall come into force with effect from the 1st day of September 2015
2. The provisions of the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013, relating to the
determination of compensation in accordance with the First Schedule,
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W.P.(MD).No.4715 of 2020
Rehabilitation and Resettlement in accordance with the Second Schedule
and infrastructure amenities in accordance with the Third Schedule shall
apply to all cases of the land acquisition under the enactments specified in
the Fourth Schedule to the said Act.”
11. Since the Electricity Act,2003 is included under the Removal of
Difficulties Order 2015, the contention of the learned Senior Counsel that the
Fair Compensation Act 2013 and prayed to direct the respondents to pay
compensation under the Fair Compensation Act 2013. There is no doubt that
the Fair Compensation Act 2013 is applicable whenever there is acquisition
under Electricity Act, 2003. The Government would acquire land for Electricity
Board for establishing Sub Stations, in such circumstances the said Fair
Compensation Act 2013 would be applicable. But whenever the High Tension
Towers are erected under section 164 of Electricity Act, 2003 read with Section
10 of Telegraph Act, 1885 there is no acquisition of lands. Under section 10 it
is clearly stated there is no acquisition of land, but it is only using the land.
Therefore the contention of the petitioner to grant compensation under Fair
Compensation Act 2013 cannot be entertained.
12. Since there is no acquisition and consequently the Fair Compensation
Act 2013 is not applicable. However there was demand to grant compensation
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for erection of High Tension Towers as well. Therefore, the Government had
issued G.O.Ms.No.86 granting compensation to the land owners, but the
contention of the Learned Senior Counsel is that the same is not just and
adequate compensation. The G.O. is not adequately compensating for the
damages that being caused to the land, more so when the stringing corridor area
are drawn above the land.
13. The said Government Order grants 100% compensation for the
damage caused to the land where the four legs of the High Tension Towers are
located, wherein two different compensation is paid for the land i.e. for tower
based upto and including 3 cents and tower area beyond 3 cents and part
thereof. And 20% compensation for Stringing Corridor Area. The strong
objection of the Learned Senior Counsel is that the beneath the stringing
corridor area the tube light gets illuminated, the human body is conducting
electricity, hence it is highly risk to grow even small crops. Hence the area
beneath stringing corridor area to an extent of 10 meters in depth (32 feet 10
inches) and 60 meters width (200 feet) should also be taken into account and
grant 100% compensation for the same. For which the petitioner is relying on
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W.P.(MD).No.4715 of 2020
the thesis submitted by one S.Somasekaran to Madurai Kamaraj University,
wherein it is stated that “the Electro Magnetic Field around the stringing
corridor area drastically affect the physiological and biochemical characteristics
of the crop plants and it reduces the plant biomass production. The Electro
Magnetic Field is exerting stress on the plants thereby reduce the growth of
plants. The herbs were severely affected due to the effect of Electro Magnetic
Field in forest lands.
14. This Court is of the considered opinion Mandamus cannot be issued
against the Government for taking any policy decision. Hence, this Court
cannot give any positive direction to consider the petitioner's claim. But the
reasons cited by the petitioner regarding unusable of land is genuine cause and
the issue ought to be addressed. Therefore, the first respondent Central
Government is directed to address the issue raised by the petitioner. The second
respondent State Government is directed to reconsider the G.O.Ms.No.86 in the
light of the above observations and consider to grant compensation for the
particular distance where other activities is risky especially to an area beneath
stringing corridor area to an extent of 10 meters in depth (32 feet 10 inches)
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W.P.(MD).No.4715 of 2020
and 60 meters width (200 feet). The first and second respondents are directed to
consider the claim of the petitioner and pass appropriate orders within a period
of four (4) months from the date of receipt of a copy of this order.
15. With the above direction, this Writ Petition is disposed of. There
shall be no order as to costs. Consequently, connected miscellaneous petitions
are closed.
05.10.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
Nsr
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W.P.(MD).No.4715 of 2020
To
1.The Secretary,
The Union of India,
Ministry of Poer, Shram Shaki Bhavan,
Rafi Marg, New Delhi – 110 001
2.The Secretary,
The Government of Tamil Nadu,
Department of Energy,
Fort St George,
Chennai – 600 009.
3.The Tamil Nadu Transmission Company Limited,
Anna Salai, Chennai – 2,
Through its Managing Director
4.The Tamil Nadu Electricity Department,
Generation and Distribution Corporation,
Anna Salai, Chennai – 2.
5.The District Collector,
Karur District,
Karur.
6.The Deputy General Manager,
Power Grid Corporation of India Limited,
400/230 KV, Sub Station, Coimbatore Main Road,
K.Paramathi Post, Karur District.
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W.P.(MD).No.4715 of 2020
S.SRIMATHY, J.
Nsr
W.P.(MD).No.4715 of 2020
05.10.2023
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