@JUDGMENTTAG-ORDER
B. Rajendran, J.@mdashBy consent, both the writ petition as well as the miscellaneous petitions were taken up together and a common order is passed.
2. The Petitioner, who owns a punja land in S.F. Nos. 285/1, 285/2, 285/3 and 286 to an extent of 13.68 acres in Thirukampuliyur Village at Krishnarayapuram Taluk, Karur District, under patta No. 1379, has filed the present writ petition on the ground that the Respondents are planning to lay a new power line due to upgradation of the Mayanur 33 KV substation to 110 KV substation.
3. According to the Petitioner, the existing 33 KV sub-station line is laid on the bund which is a poramboke land belonging to the Government. But, the Respondents have deviated the existing line and are trying to lay the new 110 KV line through the Petitioner''s land, thereby prohibiting his proposed construction of the institutional building in his land.
4. On coming to know the same, the Petitioner has made a representation on 14.01.2011 to all the Respondents not to proceed with the work. But, the same was not considered by the Respondents. According to the Petitioner, abutting the bund, there is adequate poramboke land with a width of 50 meters and therefore, the attitude of the authorities in trying to draw the line in his land is not correct. Hence, he has come forward with the mandamus directing the Respondents to consider his representation dated 14.01.2011 within a reasonable time and pass further orders.
5. At the time of filing the writ petition, he has also filed an application in M.P.(MD) No. 1 of 2011 and sought interim orders thereon. When the matter came for admission on 07.02.2011, this Court ordered that notice be served on the learned Standing Counsel and posted the case on 08.02.2011. On 08.02.2011, this Court had passed the following order:
The learned Stating Counsel for the Respondent seeks time to file counter. According to the learned Counsel, there is No. intention of putting up a tower in the property of the Petitioner. However, the line will be drawn through the property of the Petitioner. Therefore, the Respondent is directed to file a sketch indicating the drawal of lines. In the meantime, there will be a direction to maintain status quo with respect to the drawal of lines. Post on 21.02.2011.
6. On 21.02.2011, since there was No. representation on behalf of the Respondents, the writ petition was admitted and the interim order of status quo already granted was ordered to be continued until further orders. Thereafter, the Petitioner filed a contempt petition in Cont.P.(MD) No. 151 of 2011 stating that in spite of the order of status quo passed by this Court on 08.02.2011 and the intimation thereon by telegram, the Respondents came to the spot on 09.02.2011 and took steps to erect the tower in his property and on coming to know the interim order, they left the property without doing any work. Later on, on 11.02.2011, the Respondents came back and erected the tower in the Petitioner''s property in spite of knowledge of operation of the interim order. Hence, the Petitioner filed a contempt petition in Cont.P.(MD) No. 151 of 2011 contending that the Respondents wilfully disobeyed the order of this Court. In the contempt petition also, the Respondents were asked to take notice.
7. Thereafter, the Electricity Board filed a vacate stay petition in M.P.(MD) No. 2 of 2011 in W.P.(MD) No. 1436 of 2011 on 08.03.2011 contending that even as early as on 23.12.2009, a paper publication was made in Tamil Daily informing the formation of sub-station and the line drawing work in that area and an approval was also obtained by the Superintending Engineer on inspection report dated 03.03.2010 and approval by Chief Engineer dated 07.07.2010 in which approval, the details regarding crossing in rail track, road and other electricity line crossings and the route map is formed and the tower locations are identified by considering the various aspects and technical feasibility and the project is undertaken for the welfare of public and to avoid the escalation of cost, the Board has always chosen the possible shortest route and also avoiding angle towers which are cost- expensive.
8. As per the sanctioned scheme, 22 towers have to be erected and at the time of filing the counter, 21 tower works have also been completed. Apart from that, line-stringing work is also completed in respect of 18 towers. The Respondents have very specifically stated in their counter that in the Petitioner''s land, No. tower is going to be erected and only in the edge of the property, lines may cross at the height of 7 meters satisfying the vertical clearance from the ground level. Admittedly, there is only a line crossing in the corner portion of the property which in No. way affects the better enjoyment of the property by the Petitioner. It is further stated in the counter that under the Indian Telegraph Act, the Board is having every right to erect the poles without the consent of the landowner and hence the issue of consent from the Petitioner is not necessary for erection and completing the work and any delay in completing the work may lead to the escalation of estimate at the cost of public. They would also contend that the tower erection and drawal of line are made in accordance with the Indian Electricity Rules, 1956. They would also contend that on the one side of the said road, the existing 11 KV line is present and hence, the new 110 KV line is drawn abutting the road on the other side and in view of the existing 11 KV line, there is No. possibility to draw another 110 KV line either adjacent or above the 11 KV line. The present route is only an idle route. This Court, in the decision reported in
9. The Petitioner also filed a reply affidavit stating that there is a poramboke land in the western side of his property in Survey No. 184; in spite of the same the Respondents are wilfully trying to draw the lines in his property and even if the line alone is drawn above 21 feet height or 7 meter height, since it is an educational institution, buses may come and may hit the line is his grievance. He would only contend that the tower is erected in his property. According to him, the Revenue Officials have given a wrong survey report as if the tower is not erected in his property. Therefore, he would only contend that the authorities have acted high-handedly.
10. Heard the learned Counsel appearing on either side.
11. At the outset, it is pertinent to point out here that the Petitioner would contend that he, as the owner of the property, has got objections insofar as it relates to the erection of towers in his property. At the time of admission, originally notice only was ordered. Only on 08.02.2011, this Court passed an order to the effect that when the Respondents stated that there is No. intention of putting up a tower in the property of the Petitioner, taking into consideration, the apprehension of the Petitioner, there was a direction to file a sketch indicating the drawal of lines and further direction that in the meanwhile, status quo should be maintained with respect to the drawal of lines. The Respondents have produced two sketches. One was issued by the Surveyor demarcating the property and another sketch was issued by the concerned Assistant Executive Engineer. In this, the key plan of the disputed location has been shown. From the sketch drawn by the Assistant Executive Engineer, it is very clear that the pole is not erected in the land owned by the Petitioner. The survey sketch given by the Surveyor also would clearly indicate that in the Petitioner''s land in Survey No. 286, No. tower has been erected. But, it is found that line has been drawn over and above near the Petitioner''s property at the end. It is also found that there is a cart track and adjacent to the cart track, at the fag end of the Petitioner''s property and at its limits of the property, the lines are being drawn.
12. The learned Standing Counsel for the Respondents also produced detailed and enlarged photographs showing the entire area with markings in consonance with the sketch shown by the Assistant Executive Engineer. LOC 17 is the tower which is situated beyond the property of the Petitioner. Similarly, LOC Nos. 16 and 18 are all situated away from the property. Therefore, it is very clear that No. tower has been erected in the property of the Petitioner even as per the Surveyor''s report. As far as the line being drawn is concerned, it is now to be drawn between the two LOC Nos. 16 and 17 which are at the extreme end adjoining the cart track. In this connection, the Respondents have categorically stated that there is technical feasibility. From the photograph, we are able to see that already, there is a line existing in the left hand side and the tower which is now installed viz., 17, 18 and 19 on the south side. Now, therefore, as rightly pointed out, the technical feasibility can only be decided by the authority concerned and it is seen from the counter that it is not possible to draw line on the southern side. But, it is a continuous process and it is a big project and more than 22 towers have to be erected and already most of the works have been completed and merely because at the fag end of the Petitioner''s property abutting the road, a line alone drawn will not hinder or hamper the Petitioner''s peaceful enjoyment of the property as put forth by the Petitioner. Admittedly, the entire area is a vacant site and so long as No. tower has been erected in the Petitioner''s property, the Petitioner cannot have any grievance. The photographs form part and parcel of the records. The five enlarged photographs would clearly indicate the exact location the Petitioner also did not object to the photographs. When we analyse the case in this angle, a Division Bench of this Court in an unreported judgment made in 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), dated 10.04.2008 has held as follows:
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 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 Cuddalur Forest Area, where three towers would be erected. Moreover, u/s 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 u/s 10 of the Act and the jurisdiction cannot be expanded to empower the District Magistrate to suggest alternative routes 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-economically feasible route.
13. As per the above judgment, it is very clear that when the Corporation has chosen the most techno-economically feasible route, it is not open to the District Magistrate u/s 10 of the Indian Telegraph Act even to suggest the alternative route stating that the line which is crossing the Petitioner''s property may affect him. In another order of this Court in 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,after referring to various decision of this Court, it has been held as follows:
23. While construing the provision of Section 10 of the Indian Telegraph Act,1885, along with Section 42 of the Electricity (Supply) Act,1948, a Full Bench of Kerala High Court in
22. In this case it is the claimant who knows best as to how his land could be cultivated with other crops which would not violate the restrictions regarding open space to be left from the electric lines, towers and posts. It is quite plausible that every landowner would be using the land beneath the electric lines (be they of high tension or low tension) to raise cultivation or for some other purpose except of course for growing tall tress or constructing high structures. Thus, regard being had to the common course of natural events, the Court can draw a presumption that agricultural operation in a reasonably profitable manner can be carried on in the affected land except growing tall trees. Hence the burden is on the claimant to rebut the said presumption.
23. The upshot of the above discussion is that it is open to the owners of the land to claim compensation for diminution in land value when towers and poles are erected on and electric lines drawn over their lands subject to the conditions detailed in this judgement. The quantum of damages shall be fixed on the basis of the principles enunciated hereinabove. Whether claimants had taken reasonable steps to mitigate the damage or not is a question to be considered by the District Judge on the evidence in each case and subject to the presumption and onus indicated above.
24. In M. Nithyanandham and two others v. Chairman, Tamil Nadu Electricity Board, Madras-2 and Ors. (1994 WLR 445) AR. Lakshmanan,J. (as he then was) while analysing the provisions of the Indian Electricity Act,1910; Electricity (Supply) Act,1948 and Section 10 of the Indian Telegraph Act,1885, held that there is No. obligation on the part of the competent authority to issue any prior notice. It was held that it is not open to anybody to contend that high tension towers cannot be put up and in the light of the non-obstante clause in Section 42 of the Electricity (Supply) Act,1948, the applicability of Sections 12 to 16, 18 and 19 of the Indian Electricity Act,1910 are excluded and the only option open to the affected person is to claim compensation as damages as per the provisions of the Indian Telegraph Act,1885. Further, it was held as under:
26. The above section, in my opinion, authority for placing the poles or the towers of private land and Clause (d) referred to above provides for payment of compensation. Section 16(1) provides for the Board approaching the District Magistrate in case of resistance by the owner. Section 16(3) provides for the mode for fixing the compensation in case of dispute retarding the sufficiency of the compensation.
27. In the light of the non-obstante clause Section 42, excluding in categoric terms the applicability of Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910, in my considered opinion, it is not open to the Petitioners to rely on Section 12 of the Indian Electricity Act, 1910.
30. Thus, I am of the view, that as the provisions stand and discussed above, I do not think that it is obligatory on the part of the competent authority to issue prior notice before exercising power under the provisions of the Act. No. doubt, it will be proper and certainly desirable that the owner or occupier should be informed before acts are done on his property. It is conceivable that when the parties are so informed, the exact location and the alignment of the line can be settled without resistance or obstruction by mutual understanding and discussion. However that be, as I understand the provisions in the Telegraphs Act and the provisions of the Indian Electricity Act, I do not consider it necessary that there should be prior notice. A Full Bench of the Kerala High Court has also taken a similar view in the decision reported in
25. It was in
19. From the above settled position of law, it is clear that when the Electricity Board exercises power u/s 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 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.
14. Therefore, it has been very clearly held that the department need not take any consent from the land owner even before installing the tower. In this case, No. tower has been installed. Even the line which is drawn at the fag end of the property, will not, in any way, affect the user right of the Petitioner. 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.
15. On a reading of all the above judgments, it is very clear that a mere objection / petition of the Petitioner in drawing the lines for erection of poles is not necessarily to be considered. In any view of the matter, in this case, the Respondents have taken note of the objections and not erected the tower in the Petitioner''s property and the Respondents proposed to draw the lines only at the end of the property. Therefore, there is No. merit in this writ petition and the same is dismissed and the vacate stay petition is allowed.
16. As far as the contempt petition is concerned, No. doubt, there was an interim order of status quo on 08.02.2011. A telegram was also sent to the Respondents and even according to the Petitioner, the Respondents came to the spot on 09.02.2011 and they have not taken any steps. But, subsequently, on 11.12.2011, when they came there, de-hors the interim order, line was drawn. But, it is very clear from the counter as well as the photograph that the line was not fully drawn, only the tower has been erected and that too, not in the property of the Petitioner. Hence, this Court feels that there is No. wilful disobedience of the order. The Petitioner has also not specifically made out a case in the contempt petition that the line was fully drawn.
Under these circumstances, the contempt petition is also closed.
In the result, the writ petition is dismissed. No. costs. The order of status quo granted by this Court is vacated and the contempt petition in Cont.P.(MD) No. 151 of 2011 is closed.
