M/S.Vishal Projects Private Ltd vs The State Of Telangana
2021 Latest Caselaw 285 Tel

         THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY

     WRIT PETITION Nos. 20055 of 2020 and 20824 of 2020

COMMON ORDER:

      Since the issue involved in both these writ petitions is one and

same, they are heard together and being disposed of by this common

order at the admission stage itself.

      Both these writ petitions are filed by M/s. Vishal Projects

Private Limited, which is involved in the business of construction of

villas/residential houses.   During the course of its business, it has

undertaken    a   project    for   construction    of    gated   community

independent houses, named as "Vishal Sanjivini" over the land

admeasuring Ac.35.00 guntas in Sy.Nos. 161, 162, 165, 166/P,

167/P and 168/P of Srinagar Village, Maheshwaram Mandal, Ranga

Reddy District duly entering into development agreements with the

respective land owners. The petitioner has completed the 70% of the

project work and most of the purchasers have also occupied the

houses. While so, in order to meet the increased demand in power

consumption, the official respondents have decided to erect a 132/33

KV Sub-station at Kandukur in Ranga Reddy District along with

connecting 132 KV & 32 KV lines. During the course of execution of

the said project, since the construction of HT towers, through the

project of the petitioner, is likely to take place, the respondent

authorities inspected the site of the petitioner and asked the staff of

the petitioner to vacate the site. Hence, the petitioner submitted

representations to the respondent No. 4, the Superintending

Engineer, on 17.02.2020, 01.03.2020 and 23.05.2020 seeking details

of the project, namely the number of towers that would be erected in

the land, the route map of the towards, etc. Since there was no

response, the petitioner had filed W.P. No. 9368 of 2020 challenging

the action of the respondents. This Court, by order dated 29.06.2020,

disposed of the writ petition with the following directions:-

"In view of the above submissions, this writ petition is disposed of granting liberty to the petitioner to submit fresh representation to the 4th respondent raising all the contentions, which are raised in the present writ petition along with supporting material within one week from the date of receipt of a copy of this order. On receipt of such representation, after hearing the petitioner, the 4th respondent shall consider the same including the material placed before it and also the principle held by the Apex Court in Power Grid Corporation of India Ltd.'s case referred supra or any other judgment. The 4th respondent and other officials concerned shall complete the exercise within two weeks from the date of receipt of the representation submitted by the petitioner. Till then, Respondents 2 to 4 are directed not to proceed with laying of HT lines through the petitioner's property. It is made clear that neither the petitioner nor the Villa owner shall claim any equities under the guise of this order."

Thereafter, the petitioner had submitted a detailed

representation on 23.07.2020 to the respondent No. 4 duly suggesting

the two alternate route maps that can be explored in order to avoid

the petitioner's project. According to the petitioner, alternate route

proposed by it passes through the Master Plan Road and agricultural

land, unlike the developed housing residential projects. But, the

respondent No. 4 rejected the representation of the petitioner, vide

orders dated 21.09.2020 without exploring the alternate options

proposed by the petitioner. If the proposed towers are laid across the

project of the petitioner, the HT lines would pass through the

independent houses, thereby endangering the lives of

inmates/occupants of the houses. Hence, the petitioner again filed a

review petition on 12.10.2020 to the respondent No. 4 to review its

order dated 21.09.2020. However, the respondent No. 4 did not take

any action thereon and the officials came to the project of the

petitioner on 03.11.2020 for excavation of the site for erection of

towers. Although the Hyderabad Metropolitan Development Authority

('HMDA'), vide its letter dated 05.11.2020 conveyed their 'no objection'

for laying of the proposed towers along the 30meters Master Plan

Road, the respondents are not taking any steps to save the project of

the petitioner. Subsequently, by proceedings dated 13.11.2020, the

respondent No. 4 rejected the review petition filed by the petitioner.

Hence, the petitioner has filed the former writ petition, i.e. W.P.

No. 20055 of 2020, challenging the proceedings of respondent No. 4,

dated 21.09.2020 insofar rejecting the proposal of the petitioner for

exploring the two alternate route maps, and filed the latter writ

petition, i.e. W.P. No. 20824 of 2020, challenging the proceedings of

the respondent No. 4, dated 13.11.2020, whereby the review petition

filed by the petitioner seeking review of the proceedings dated

21.09.2020 was rejected.

On behalf of official respondent Nos. 1 to 4, the respondent No.

4 filed a counter affidavit in W.P. No. 20055 of 2020 denying the

averments made therein. According to respondent No. 4, in order to

meet the increased load and to improve voltage conditions, the

proposed project for erection of 132/33KV Sub-station at Kandukuru

in Ranga Reddy District is approved by the respondents. A route

proposal for erection of 132KV line from 220KV Fabcity Sub-station to

the proposed 132KV Kandukuru Sub-station was approved vide

proceedings in Lr. No. CPT130/SE-PM-II/D.No. 353/15, dated

16.05.2015 and it was also published in the Gazette on 15.07.2015,

and that the commissioning of the project was also undertaken

through a contractor during the year 2017 itself. Knowing fully well

that that the construction of towers has been taken up in the year

2017 itself, the petitioner filed W.P. No. 9368 of 2020 on the ground

that his three representations filed during February-May, 2020 have

not been considered. However, this Court by order dated 29.06.2020

disposed of the writ petition directing the respondents to consider the

said representations of the petitioner and with a direction to the

petitioner to file a fresh representation. Accordingly, the petitioner

submitted a representation on 23.07.2020 along with the location

map issued by the HMDA. After duly considering the said

representation and after providing opportunity of personal hearing to

the petitioner, the respondent No. 4 examined the two alternate

routes proposed by the petitioner and passed a detailed order

rejecting the request of the petitioner as the said alternate routes were

found to be 'technically not feasible'. The plan/proposal submitted by

the petitioner in its representation, dated 23.07.2020, falls in private

lands and only some part is owned by the Government. The land for

the proposed road was not acquired by HMDA and hence, the said

route proposed by the petitioner cannot be considered. According to

the respondents, the towers are being erected outside the land of the

petitioner and only lines are being drawn over the land. Since the

petitioner has been consistently pleading with the respondents that

the line should be laid along the proposed 30 meters Master Plan

Road being laid by HMDA, the respondents, by letter dated

05.10.2020 requested the HMDA to accord permission for laying of

the proposed line along the said road passing from ORR to Srinagar

Village to Imamguda Mandal. In response, the HMDA, vide its letter

dated 05.11.2020 has expressed its 'no objection' for such proposal.

After some correspondence in that regard, the HMDA, by its letter

dated 10.11.2020 (signed by the Metropolitan Commissioner on

13.11.2020) informed the respondents that the 30 meters Master Plan

Road is passing through private lands, and as the HMDA has not yet

acquired those private lands, it cannot give permission to lay the lines

through the said Road. As the petitioner was resorting to other

tactics to obstruct the respondents from laying the lines, the

Municipal Commissioner, Thukkuguda, by letter dated 05.11.2020,

had asked the petitioner to stop the unauthorised constructions and

also to remove the unauthorised structures in the proposed line.

In order to explore the other possibilities, in compliance with

the direction of this Court in W.P. No. 9368 of 2020, the respondents,

by letter dated 11.11.2020 requested the Telangana State Industrial

Infrastructure Corporation ('TSIIC') to grant permission to lay the

towers and erect the line along the median of the Fabcity road for

about 400 metres as the line would have passed along the road, if

permission was accorded by the HMDA. Even TSIIC, by its letter

dated 13.11.2020, has refused to grant the permission as the road is

required for heavy vehicles carrying containers for the Fabcity project.

Thus, after exhausting all the alternate possibilities to change the

alignment of the proposed line, the respondents have rejected the

review petition filed by the petitioner, by order dated 13.11.2020.

Heard the learned counsel for the petitioner and the learned

Standing Counsel for the respondents. Perused the material available

on record.

While admitting W.P. No. 20055 of 2020, this Court directed the

parties to maintain status quo and the same has been extended from

time to time.

The main contention of the petitioner is that although this

Court had specifically directed the respondents in the earlier writ

petition filed by the petitioner, namely W.P. No. 9368 of 2020, to

explore the possibility of alternate routes to be submitted by the

petitioner in his representation, the respondents by order dated

21.09.2020, rejected the representation of the petitioner, dated

23.07.2020, on erroneous considerations. In the impugned order,

dated 21.09.2020, the respondents had observed as under:-

"In general, the overhead lines of TRANSCO will be erected duly laying the towers preferably in the government/assigned lands and if inevitable in private lands with minimum loss to the land owners. Before taking of the work in private land, that will be apprised to the land owners and possible compensation will be arranged".

However, the petitioner has neither been informed about laying of HT

Lines and their passing through the project nor consent has been

obtained from the petitioner for undertaking the HT Line project.

The learned counsel for the petitioner contends that inasmuch

as the petitioner has already constructed the major portion of the

housing project and as most of the purchasers have occupied the

houses, if the proposed line were permitted to be laid through the

project of the petitioner, besides posing health hazard to the inmates

of the houses over which the overhead HT Lines passes, it would

cause irreparable loss to the petitioner and the entire project may

have to be abandoned. It is the duty of the respondents to see that to

the maximum extent possible, the private properties are not disturbed

for laying the HT Lines and only in unavoidable situations, the private

lands can be used for the said purpose. In this regard, even the

Hon'ble Supreme Court in the case of Power Grid Corporation of

India Limited v. Century Textiles and Industries Limited1 while

dealing with the issue of power of a licensee to lay transmission lines

(2017) 5 SCC 143

under the Electricity Act, 2003 across the private property and the

applicability of the provisions of Telegraph Act, 1885, had observed

that "the laying of transmission lines shall cause as little damage as

possible". Furthermore, the alternate route proposed by the

petitioner is passing through the Master Plan Road and agricultural

land unlike the developed housing residential land like the petitioner's

land and that it is always advisable to lay the HT Lines in agricultural

lands rather than in developed, housing, independent housing lands.

However, without considering the grievance of the petitioner and

without exploring the alternative route maps proposed by the

petitioner, the respondent No. 4 rejected the representation of the

petitioner by the impugned order, dated 21.09.2020. After filing the

review petition by the petitioner, in response to the request of the

respondent No. 4, the HMDA, by its letter dated 11.11.2020 informed

that "a part of 30 meter wide master road on northern side is passing

through the side belonging to M/s. Vishal Projects and the southern

side portion of the Master Plan Road is passing partly through private

lands and partly through Government lands. Hence, to the extent of the

HT line passing through private lands, the TRANSCO shall lay the line

duly acquiring the land from the concerned land owners and to the

extent the line is passing through the Government lands, the HMDA has

no objection". Simply, by referring the above said communication of

the HMDA, the respondent No. 4, by its letter dated 13.11.2020

informed the petitioner that the review petition is rejected on the

ground that the laying of the Line along the 30 Meter Master Plan

Road is not possible in view of the movement of heavy vehicles on the

Fabcity Road which is connecting the Srisailam Highway and Fabcity.

Even the review petition has been dismissed without affording an

opportunity of hearing to the petitioner.

Per contra, the learned Standing Counsel for the respondents

contends that the erection of the proposed Lines was finalised as long

back as on 16.05.2015 and the same was also published in the

Gazette on 15.07.2015, i.e. much prior to the commencement of the

residential project by the petitioner. Thus, the petitioner is aware of

the work to be undertaken for laying of lines in the year 2017 itself,

and therefore, the contention of the learned counsel for the petitioner

that, the proposal of HT Lines through the petitioner's project has not

been informed, is not correct. Even otherwise, the towers are being

erected outside the land of the petitioner and the petitioner is merely

aggrieved by the line passing over their land. In pursuance of the

orders passed by this Court in W.P. No. 9368 of 2020, the petitioner

had filed a representation on 23.07.2020 along with the alternate

proposals, and the same has duly been considered and only after

providing the opportunity of personal hearing to the petitioner, the

impugned order dated 21.09.2020 has been passed with elaborate

reasons. It is contended that it is not proper on the part of the

petitioner to contend that the respondents have not explored the

alternate options submitted by the petitioner. In fact, the officials of

the respondents had visited the proposed 30 meters Master Plan

Road, and the farmers/owners had informed that their lands, where

the road is proposed, have not been acquired, either by the

Government or by the HMDA. Therefore, the HMDA cannot give

permission to lay the lines in 30 meters Master Plan Road as they are

not the owners of the land. With regard to the other option proposed

by the petitioner, the TSIIC, through its letter dated 13.11.2020

rejected the request of the respondent No. 4 to lay the towers and

erect the line along the median of the Fabcity road on the ground that

the said road is required for heavy vehicles carrying containers for the

Fabcity project. Therefore, after exhausting all the options available

to change the alignment of the proposed HT Lines, the review petition

of the petitioner was rejected. Hence, the learned Standing Counsel

sought to dismiss both the writ petitions.

As seen from the record, in pursuance of the orders of this

Court in W.P. No. 9368 of 2020, the petitioner made a representation

to the respondents on 23.07.2020 along with two alternate proposals

for laying of HT Lines. It is the specific case of the respondents that

personal hearing was granted to the petitioner on 02.09.2020 and

after considering the representation, and the submissions of the

petitioner, a detailed order was passed on 21.09.2020 rejecting the

request of the petitioner. The observations in the impugned order,

dated 21.09.2020 reads thus:-

"Observations:

On thorough examination of the representations made by M/s. Vishal Projects Pvt. Ltd, the following observations are made:

1. In general, the Overhead lines of TSTRANSCO will be erected duly laying the towers preferably in the Government/assigned lands and if inevitable in private lands with a minimum loss to land owners. Before taking up the work in private land, that will be apprised to the land owners and possible compensation will be arranged.

In this case, the towers from Loc.No.5 to 9 are proposed to be laid adjacent to boundary wall of M/s. Vishal Projects Pvt Ltd. Further the line corridor between Loc.No.9 to 10 is also passing outside and along the boundary wall of Vishal Projects in Sy.No.161 which does not belong to Vishal Projects. As the line is passing adjacent to their boundary but not in their land, hence notice was not issued.

When the work is taken up & excavation started during March of 2017, adjacent land owner M/s. Vishal Projects Pvt Ltd representatives enquired and then requested to stop the work temporarily and informed that they will explore the alternate route and then they have represented to the Chairman & Managing Director/TSTRANSCO for shifting of line on 18.04.2017. As such, the contention of M/s. Vishal Projects Pvt. Ltd that notice was not given is not acceptable. However,

now Vishal Projects Pvt Ltd claiming that the adjacent land in Survey No.161 also belongs to them and line is passing through their land.

2. The towers from Loc.No.5 to 10 are proposed to be laid adjacent to the boundary wall of M/s. Vishal Projects Pvt. Ltd and the total number of towers to be laid are only six for which foundations are physically excavated. Being a Government organization dealing with transmission business, its our primary responsibility to erect and maintain towers duly maintaining clearances from residential areas. The designs/technical specification will not be disclosed to the private parties/agencies. However, the route map of the line was communicated to the party.

Hence, the contention of M/s. Vishal Projects Pvt Ltd that there is no response to their representations & kept them in dark is not correct.

3. M/s. Vishal Projects Pvt Ltd representatives met TSTRANSCO officials several times at site and on their request explored the possibilities of other routes suggested by them.

a) One route adjacent to temple is passing along the HMDA approved plots and there is no responsibility for the line to lay towards the Srisailam Highway for connectivity to 132 KV SS Kandukur.

b) The other route which they are claiming as 100 feet proposed HMDA road is a private party land.

As such it was suggested to get a consent letter from this private party land owner during 2017 only.........."

Thus, the respondents have explored the alternate options suggested

by the petitioner in depth and came to the conclusion that it is not

possible to divert the line. Even by the subsequent order, dated

13.11.2020 while rejecting the review petition filed by the petitioner,

the respondent No. 4 clearly stated that the HMDA and TSIIC denied

giving permission for the diversion of the HT Lines. While the HMDA

clarified that they have not acquired the private land through which

the Master Plan Road is proposed, the TSIIC informed that it is not

possible to erect the towers and lay the 132KV line in the median of

150 feet Fabcity approach road, as it being industrial and electronic

manufacturing cluster city, heave vehicle movement is expected.

Admittedly, the towers are being erected outside the land of the

petitioner, but the lines are being drawn over the land of the

petitioner. According to Section 164 of the Electricity Act, 2003, the

respondents are empowered to lay the lines and erect the

transmission towards and only after the lines are laid and towers are

erected, the cause of action to claim compensation for crop loss or

damage to the land arises. Even if a person is aggrieved by the

compensation so determined, he/she is at liberty to approach

appropriate forum by initiating appropriate proceedings for

enhancement of compensation as stipulated under Section 16(3) of

the Indian Telegraph Act, 1885. Even as per the averments of the

petitioner, the line as proposed by the petitioner will have to pass

through the lands of other farmers. As seen from the record, already

70 towers, out of 90 towers, have been laid. Therefore, at this stage,

it is not just and proper to direct the respondents to change the

alignment of the line.

At this stage, the learned counsel for the petitioner submits that

70% of the housing project has already been completed and the

remaining work is in progress. The laying of HT Lines through the

petitioner's project would not only cause danger to the lives of the

inmates of the houses, but also cause huge financial loss to the

petitioner. Therefore, the learned counsel seeks indulgence of this

Court by directing the respondents to consider the feasibility of laying

the HT Lines through underground, instead of overhead power line,

by using PILC, XLPE cables etc. wherever they are proposed at the

petitioner's project.

For the reasons stated above, this Court is not inclined to

interfere with both the impugned orders passed the respondents.

However, in view of the submission of the learned counsel for the

petitioner with regard to laying of underground cable, the respondents

are directed to consider the case of the petitioner sympathetically by

exploring the possibility of laying the underground cable, instead of

overhead power lines, in order to save the project of the petitioner, in

case the petitioner is willing to deposit the costs for laying of the

underground cable, likely to be determined by the respondents.

With the above observations, both the writ petitions are

disposed of.

Miscellaneous petitions pending, if any, shall stand closed.

There shall be no order as to costs.

________________________ A.ABHISHEK REDDY, J Date :04.02.2021 Tsr