@JUDGMENTTAG-ORDER
B. Rajendran, J.@mdashThe Petitioners who are brothers are the owners of the property enjoying the same by laying salt pans and scrapping salt as well as gypsum, the by-product. The total area covered is 17.5 acres. They are conducting their business under the name and style of "Brilliant Salt Factory". The first Respondent attempted to construct huge high tension electric transmission towers through their factory. According to the Petitioners, if the towers are erected, they will completely ruin their salt factory. According to them, it is a circuitous line taken by the Corporation and huge towers are to be planted in the salt factory of the Petitioners. The Petitioners would only apprehend that due to the electro-magnetic effect, there will be a humming and frightening sound under the high tension electric towers and because of that, there will be water seepage thus reducing the salt brine water used for salt production.
2. The Petitioners would further contend that the concept of planting huge electric transmission towers does not fall under the purview of the Electricity Act or Indian Telegraph Act. There are two big sheds within their salt factory and the packing machines are being installed. Besides, there are office sheds and rest sheds. Therefore, they made their objections by letter dated 18.11.2010 for which a bureaucratic reply was sent by the first Respondent on 21.12.2010 and the objections raised by the Petitioners were never considered and No. hearing was given to them. According to them, the objections should have been passed on to the second Respondent and the first Respondent should not have answered the same on his own. Therefore, the Petitioners have come forward with this petition seeking a writ of mandamus forbearing the Respondents from entering into the Petitioners'' salt factory and erecting high tension transmission towers.
3. The first Respondent has filed a vacate stay petition along with the counter. According to them, the first Respondent Corporation is a deemed transmission licensee in the capacity of Central Transmission Utility as envisaged under Sections 38 and 40 of the Electricity Act, 2003. It has been notified by the Central Government as a Central Transmission Utility as per the notification dated 27.11.2003 and gazetted on 04.12.2003 and it has been vested with all the powers under the Telegraph Authority under Part III of the Indian Telegraph Act, 1885 in respect of Electrical Lines and Electrical Plants established or maintained for transmission of electricity. It is also empowered to place and maintain transmission lines under, over, along or across, and posts in or upon, any immovable property and the Respondents need not acquire any right other than that of user only in the property. 23 meters on either side of the alignment line between two towers is the electrical safety zone. The first Respondent would mainly contend that in the Tuticorin-Madurai 400 KV Double Circuit Line, the anticipated line length is around 152 Kms with 423 towers and the estimated cost of the project is Rs. 340 Crores and the project caters to the needs of the requirements of all southern States and scheduled to be commissioned by March, 2011 and the work is under progress and out of total 423 towers, foundation work was completed for 415 towers and tower erection was completed for 390 towers and stringing work was over for 110 kMs. For the above said works, the survey of the project commenced in the year 2008 and preliminary survey was conducted in the year 2008, check survey works were carried out during 2009 and the best techno-economic route alignment was finalised in the year 2009 after thorough survey of various possible options. According to the first Respondent, even a line is only passing through the salt pans belonging to the Petitioners and not over and above the salt factory as alleged by the Petitioners wherein it is proposed to erect two towers in location Nos. 13/1 and 13/2. The first Respondent also pointed out the preceding and succeeding tower points the tower erection has already been completed. As per Section 10 of the Indian Telegraph Act, 1885, it is not necessary to issue personal notice or to get prior consent from the private land owners. The best techno-economic route alignment was finalised even during 2009 and there is No. deviation in the route as averred in the affidavit filed in support of the writ petition. Even as per the decision of the Hon''ble Supreme Court, the public interest shall prevail over the private interest as the project itself is to augment the power supply to the entire State of Tamil Nadu which will be beneficial to the public at large. Even u/s 10 of the Indian Telegraph Act, the damage would only refer to any damage to the standing crops or trees or sustained by the land owner at the time of carrying out of demolition of any super structure and not otherwise. The objections were properly considered and promptly they were given reply as early as 21.12.2010. The interim order of injunction granted is totally hampering the entire work. Hence, the Respondents have come forward with the vacate stay petition.
4. Even for the vacate stay petition, the writ Petitioners filed counter reiterating the stand taken in the affidavit filed in support of the writ petition. Their main contention is that even though the wire is passing through the salt pans and not the factory, the tower lines, during summer season, may get loosened and the humming sound under the tower line will frighten any worker working with mental peace under the tower lines. For erecting the towers, the tower legs will be concreted and this will affect the salt pans and also cause seepage. Therefore, the writ Petitioners would only contend that the authority cannot take the line over their lands.
5. Heard the parties concerned. By consent of both parties, the main writ petition itself is taken up of disposal.
6. According to the Petitioners, if the transmission lines and towers are erected in their lands wherein they are running salt factory, they will be put into irreparable loss. In this connection, from the pleadings, it is very clear that the proposed lines to be drawn as well as the towers to be erected are only in the salt pan and not on the salt factory and the salt pan is the open land in which water is stored and dried so that salt can be procured. Therefore, first of all, there is No. building or otherwise in this pan where the line is to be drawn and the towers are to be erected. The main grievance of the Petitioners is that if the line is drawn, there will be a lot of electromagnetic activities and there will be a sound which will hamper the work done by the workers who will be collecting salt from the pan underneath the lines. Further, they would contend that neither any notice was given nor their consent was obtained as contemplated u/s 10 of the Indian Telegraph Act, for laying the towers or drawing the line. They would further contend that it is only a small deviation and the Respondents can very well deviate the line without hampering the Petitioners'' property.
7. Per contra, the learned Counsel for the Respondents would mainly contend that it is not one small line which has been drawn, but, it is a very big project requiring drawing of lines for about 152 kilometers with 423 towers for which the survey work in respect of the project commenced in the year 2008, preliminary survey was conducted in the year 2008, check survey works were carried out during 2009 and the best techno-economic route alignment was finalised in the year 2009 after a thorough survey of various possible options and out of 423 towers, foundation work was completed for 415 towers and tower erection was completed for 390 towers and stringing work was over for 110 kMs. It is also specifically stated that others in that area have not objected excepting these Petitioners who are only barely objecting to the erection of two towers and the lines to be drawn between them. In fact, in the counter itself, the Respondents have categorically stated that while fixing the route itself, they will always avoid the inhabitations and factories. Therefore, when considering the Petitioners'' factory, the Respondents have only taken into consideration the fact that the line is passing through only the salt pan and not over the Petitioners'' factory. Even in that particular 10 km. stretch, the line is mostly drawn only through the salt pans of the various persons. While fixing the transmission line, the most techno-economically feasible route has been finalised and major portions of the work has been completed and the project is a time bound project which is to be completed by August, 2011 and any delay in completion of the tower project will only result in heavy loss to the Government exchequer.
8. In this background, when we analyse the objection letter given by the Petitioners on 18.11.2010, the Petitioners have only stated thus:
We are planning to put up an refined iodized free flow salt plant in the said land. There will be electro magnetic induction. Further the salt lands attract a lot of lightning and being a coastal are the lightning will be very heavy during the summer months of May and June. If, by chance, the live wires are snapped, then it will cause a havoc endangering the loss of human lives and to the properties. Due to electro magnetic induction none of the machineries to be installed will work. Even the cell phones will not work.
You are requested to re-align the electric towers as originally planned and to avoid the power lines crossing over our factories. If the same is not done, we will be forced to file a writ petition before the Honourable High Court and seek necessary remedies. Early reply and quick action for redressal is solicited.
Therefore, their only apprehension, as stated here, is that if the line drawn, then, it will cause damage to the human lives and they are only to put up a salt plant, later on. Therefore, as on date, it is only a salt pan. For the above said objections, the first Respondent has given a detailed reply stating that re-alignment is not accepted as this route has been finalised meticulously considering the various aspects such as techno economic factors and avoiding existing factories/structures in salt pan and other area noticed during the survey. They have also categorically stated that there will be No. electromagnetic induction as the transmission line is not crossing any factory. Therefore, the authority has properly taken into consideration, the objections and rightly rejected the same and the suggestion for alternative route has also been rightly rejected.
9. Now, the contention of the Petitioners that the first Respondent should not have passed the order and the matter should have been referred to the District Collector under the Indian Telegraph Act is not correct. In this connection, both sides referred to many rulings. However, it would suffice to say the following rulings alone:
2 W.A. No. 464 of 2008 (R.Kannan rep. through his power agent K.Sivasubramanian v. Power Grid Corporation (India) Limited, rep. by its General Manager, Bangalore and others), dated10.04.2008.
3 W.P. No. 36566 of 2007 (T.S.T.Kaznavi v. Tamil Nadu Electricity Board rep. by its Chairman and others), dated 28.01.2008.
4. W.P. No. 18367 of 2009 (Dr.M.Ponnuswamy and Anr. v. The Chairman, Tamil Nadu Electricity Board, Chennai and others),dated29.10.2009.
10. In fact, in my order dated 11.04.2011 made in W.P.(MD) No. 1436 of 2011, I have held that mere objection/petition of the Petitioner in drawing the lines for erection of pole need not necessarily be considered by the Collector. In fact, I have referred to the judgments which have been cited here namely,
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 u/s 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.
11. In the judgment of this Court in W.P. No. 18367 of 2009 (Dr.M.Ponnuswamy and Anr. v. The Chairman, Tamil Nadu Electricity Board, Chennai and others), dated 29.10.2009, the relevant portions can be usefully extracted below:
12....
11. The Hon''ble Apex Court as well as this Court have held that erecting the towers in order to draw high tension lines is vested with the authorities, as contemplated u/s 10 of the Indian Telegraph Act, 1885 and they are empowered to do so in the interest of the public. Nobody can prevent the installation of the high tension lines and there is No. necessity also to issue a prior notice to the owner of the property over which the electrical supply line is proposed to be taken.
13. The controversies raised in this writ petition is thus answered in the following manner:
(1) No. notice is necessary to the land owners before laying high tension wire in their land.
(2) The permission of the land owners for laying high tension wire over and above the land of the Petitioners is not necessary and Section 10 and Section 16 of the Telegraph Act does not contemplate so.
(3) Such permission is required only in respect of the land owned by the local authorities.
(4) A mere objection by the land owner does not require authorities to seek permission from the District Magistrate concerned.
(5) Only if there is an obstruction or resistance by land owners such permission is necessary.
12. A peculiar argument was made by the Petitioners stating that Section 10 of the Indian Telegraph Act only refers to pole and that it does not include the towers and hence the Power Grid Corporation has No. right to install towers. Unfortunately, the argument is not correct. First of all, when the Act came into force, poles were only thought of. Even then, there is a definition for the word ''post'' u/s 3 of the Act itself which includes the pole also and the said definition reads as under:
3.(5) "post" means a post, pole, standard, stay, strut or other above ground contrivance for carrying, suspending or supporting a telegraph line.
From the above definition, it is clear that it is an exhaustive definition even though at that point of time an ordinary post only was thought of. The words post, pole, standard, stay, strut or other above ground contrivance for carrying the line has been specifically mentioned in the above definition. Definitely tower is also other ground contrivance which is required for carrying the line or supporting the line. Therefore, even though the word tower is not mentioned in the Act, every possible thing, which is required for the purpose of supporting the wire or drawing the wire or suspending the wire, is definitely thought of and necessarily that will include the tower also. Therefore, the above argument made by the Petitioner is not accepted.
13. The Petitioners also relied on a Division Bench judgment of this Court reported in 2011 (3) MLJ 625(SuperintendingEngineer, TamilNaduElectricityBoard, Maharaja Nagar, Tirunelveli and Anr. v. M.Sengu Vijay and Anr.). The Division Bench in this case was seized of the matter relating to the shifting of the electric poles. Originally, the department erected without paying any compensation when the Appellant sought to transfer the line they demanded money from him. Thus the Court stated that when No. compensation has been paid and having accepted to shift, it is not open to the Department to demand money. This ruling will not apply to the facts of this case.
14. Besides, in a recent judgment reported in
Under these circumstances, the writ petition is dismissed. Interim order already granted is vacated. No. costs. Consequently, connected miscellaneous petitions are closed.
