@JUDGMENTTAG-ORDER
V. Ramasubramanian, J.@mdashTamil Nadu Generation and Distribution Corporation Limited, got administrative approval in Permanent Board Proceedings (FB) No. 165, dated 22.11.2003, for a scheme of erection of High Tension towers for the transmission lines from Sempatty - Pugalur 110 KV to Renganathapuram 230/110 KV Sub-Station. The project was notified in the Government Gazette on 27.04.2005. It was also published in newspapers and objections were called for.
2. The total distance covered by the project was 13 Kms., at an estimated cost of Rs. 192.92 lakhs. The number of towers to be erected were 67. Therefore, a preliminary survey was conducted, so that the main areas of the town and the developed habitats could be kept out.
3. A person by name, Velusamy, residing in Vengakkal Thottam, Periyamanjuveli Post, Pallapatti, Karur District, who owns agricultural lands of the extent of about 8.39.5 Hectares, objected to the selection of his property for the erection of a tower and came up with a writ petition in W.P(MD) No. 5629 of 2010. This Court was pleased to pass an order on 22.08.2014, in a batch of writ petitions, including the one filed by Velusamy. By the said order, this Court directed the Tamil Nadu Generation and Distribution Corporation Limited to approach the District Magistrate within four weeks, with a further direction to the District Magistrate to hear both the parties and pass orders in accordance with law. This Court also issued a further direction that if the District Magistrate decided the issue against the writ petitioners, they were entitled to compensation as per law.
4. Pursuant to the said order, the District Collector passed an order dated 16.10.2014, overruling the objections of Velusamy under Section 16(1) of the Indian Telegraphic Act, 1885 and also directing the Superintending Engineer, Tamil Nadu Generation and Distribution Corporation Limited to lay power line, subject to payment of compensation as per the provisions of the Act.
5. Contending that on the order of the District Magistrate dated 16.10.2014, the officials of the Tamil Nadu Generation and Distribution Corporation Limited were harassing him, with the help of the police, the land owner Velusamy filed a petition in Crl.O.P(MD) No. 19703 of 2014 under Section 482 of the Code of Criminal Procedure seeking a direction to the police not to harass him and his family members. This petition was disposed of by one of us (N. KIRUBAKARAN, J.) by an order dated 30.10.2014. The operative portion of the said order reads as follows:
"4. From the above, it is clear that the fourth respondent can enter into the petitioner''s property and provide compensation. The petitioner contended that no such compensation has been made so far. As long as compensation is not paid to the petitioner, the fourth respondent shall not enter into the petitioner''s property and lay the power line and the respondent police cannot harass the petitioner and give police protection to the fourth respondent for laying the power line.
5. In view of that, the respondents are directed not to harass the petitioner, but also restrain the fourth respondent from entering into the property."
6. But, on the same day, viz., 30.10.2014, Tamil Nadu Generation and Distribution Corporation Limited lodged an F.I.R. against the land owner Velusamy that he was preventing them from erecting the towers as per the order of the District Magistrate. Therefore the land owner came up with a petition in Crl.O.P(MD) No. 12 of 2015 for quashing the F.I.R.
7. In the meantime, Tamil Nadu Generation and Distribution Corporation Limited filed a petition in Crl.O.P(MD) No. 21717 of 2014 under Section 482 of the Code of Criminal Procedure seeking a direction to the police to give protection. Tamil Nadu Generation and Distribution Corporation Limited also filed an application in M.P(MD) No. 1 of 2014 in Crl.O.P(MD) No. 19703 of 2014 for recalling the order passed in Crl.O.P(MD) No. 19703 of 2014 by way of abundant caution. In other words, the reason why Tamil Nadu Generation and Distribution Corporation Limited filed an application to recall the order passed in Crl.O.P(MD) No. 19703 of 2014 was to get a clear signal that they are entitled to enter into the land, assess the damages and thereafter pay compensation and that the order should not be construed as one imposing a pre-condition for payment of compensation before entering into the land.
8. While what is stated above is the story relating to three Criminal Original Petitions, what follows is the next part of the story relating to two writ petitions.
9. The land owner himself came up with a writ petition in W.P(MD) No. 17623 of 2014 challenging the order of the District Collector dated 16.10.2014. Tamil Nadu Generation and Distribution Corporation Limited came up with a writ petition in W.P(MD) No. 17907 of 2014, challenging the order of the District Collector, dated 16.10.2014, just for the purpose of ensuring that the direction to pay compensation is not taken to be a condition precedent.
10. Thus we have two writ petitions, two criminal original petitions and a petition to recall the order in the third criminal original petition.
11. Since all of them revolved around the same issue, they were tagged together and taken up for disposal.
12. To begin with, we shall take up M.P(MD) No. 1 of 2014 in Crl.O.P(MD) No. 19703 of 2014. This is an application to recall the order passed by one of us (N. KIRUBAKARAN, J.). Though in the normal course, this petition should be listed only before the learned Judge sitting singly, it has come up before us, since he is also a party to the Bench and also since this matter is inextricably intertwined with other matters also. The only reason why Tamil Nadu Generation and Distribution Corporation Limited wants the order passed in Crl.O.P(MD) No. 19703 of 2014 to be recalled, is that it is not possible to pay the compensation, even before entering into the land.
13. Though the order dated 30.10.2014 does not specifically state so, Tamil Nadu Generation and Distribution Corporation Limited appears to be under an apprehension.
14. We have already extracted the order passed on 30.10.2014 in Crl.O.P(MD) No. 19703 of 2014. What the order says is that as long as compensation is not paid to the petitioner, the fourth respondent shall not enter into the property and lay power lines.
15. The difficulty expressed by the Tamil Nadu Generation and Distribution Corporation Limited is that unless they enter into a property, they cannot erect the power lines and they cannot assess the damage caused. While a reasonable estimate may perhaps be done, even before entering into the land, the same may not be accurate. Therefore the apprehension of the Tamil Nadu Generation and Distribution Corporation Limited should be addressed. But it is not necessary actually to recall the order in view of the order that we propose to pass in the writ petitions and in view of the nature of the relief that we will provide ultimately.
16. We shall now take up two writ petitions, one filed by the land owner and another filed by Tamil Nadu Generation and Distribution Corporation Limited as against the order of the District Collector dated 16.10.2014.
17. By this order the District Collector has overruled the objections of the land owner and permitted Tamil Nadu Generation and Distribution Corporation Limited to enter into the land and erect a power line subject to payment of compensation.
18. Interestingly even the land owner does not have any objection to the first portion of the order. The very prayer made by the land owner in his writ petition in W.P(MD) No. 17623 of 2014 is only to direct the respondents to pay the compensation first before erecting the towers. In other words, the land owner is no more interested in opposing the erection of the power lines in his land. His objections are two fold. The first is that the proper quantum of compensation should be determined. The second is that the said amount should be first paid before Tamil Nadu Generation and Distribution Corporation Limited enters into the land.
19. Therefore, it is clear that in both the writ petitions, the only questions that arise for consideration are (i) as to whether compensation should precede entry into the land and (ii) as to how the quantum of compensation is to be determined.
20. The answer to the first question, is too obvious to be stated. The land that may be necessary for erection of the tower, will certainly be known to Tamil Nadu Generation and Distribution Corporation Limited. But the actual damage that may be caused to the land, may not be known unless Tamil Nadu Generation and Distribution Corporation Limited enters into the land. In a land, there may be structures or there may be trees or standing crops or bore wells. To the extent possible, Tamil Nadu Generation and Distribution Corporation Limited is obliged to erect towers, so that the damage to his land, trees, structures, bore wells, etc., is kept to the minimum. In other words, the very alignment of the tower may depend upon a choice of the location and the actual damage that may be caused to various things may also depend upon the choice of the location. All these things cannot be assessed by standing outside the land or by taking an aerial view of the land. Therefore the answer to the first question requires hardly to be emphasised. The assessment of the damage can be done only after the damage is caused by Tamil Nadu Generation and Distribution Corporation Limited and not before.
21. On the second question, as to how the quantum of compensation is to be determined, the answer is to be found in Section 61(3) of the Indian Telegraphic Act, 1885. To begin with, the District Collector should determine the compensation payable. Tamil Nadu Generation and Distribution Corporation Limited must also pay that amount immediately after assessment.
22. If the determination made by the District Collector is not to the satisfaction of the land owner, he can seek a reference under Section 16(3) of the Indian Telegraphic Act, 1885, to the District Court. Section 16(3) of the Indian Telegraphic Act, 1885 reads as follows:
"16(3). If any dispute arises concerning the sufficiency of the compensation to be paid under Section 10, clause (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him."
23. Therefore, the order of the District Collector may have to be read in tune with the provisions of Section 16(3) of the Indian Telegraphic Act, 1885 and the powers of the District Collector. Once this is clarified, the objections to the order of the District Collector made by both the parties will get addressed.
24. That leaves us with the last of the petitions, namely, Crl.O.P(MD) No. 12 of 2015 filed by the land owner for quashing the F.I.R. The F.I.R filed against the land owner, accuses him of the alleged offences under Section 294(b), 353, 188 and 506(i) I.P.C. But this complaint could not have been registered, when there is a dispute about the interpretation to be given to the order of the District Collector. Tamil Nadu Generation and Distribution Corporation Limited itself was under the impression that as per the order of this Court in Crl.O.P(MD) No. 19703 of 2014, they may be liable to pay compensation before their entry into the land. This is why they have come up with a petition for recalling the said order.
25. If Tamil Nadu Generation and Distribution Corporation Limited itself was of the view that they should be required to pay compensation in advance, then the attempt of the land owner to prevent them from entering into the lands and erecting the towers cannot be said to be offensive enabling Tamil Nadu Generation and Distribution Corporation Limited to file an F.I.R. Therefore the F.I.R requires to be quashed.
26. In view of the above, we dispose of all the petitions to the following effect:
"(i) Crl.O.P.(MD) No. 12 of 2015 is allowed and the F.I.R against the land owner is quashed. Consequently, the connected miscellaneous petition is closed;
(ii) W.P.(MD) Nos. 17623 and 17907 of 2014 are disposed of, clarifying the order of the District Collector, to mean that Tamil Nadu Generation and Distribution Corporation Limited is entitled to enter into the property. Tamil Nadu Generation and Distribution Corporation Limited can identify the location where the tower could be erected, with the least damage to any structure, trees, standing crops on the land or bore wells. After such erection, the damages could be assessed and the amount paid to the land owner within a week of the erection of the towers. If the land owner is not satisfied with the quantum of compensation, the matter shall be referred to the District Judge concerned by the District Collector under Section 16(3) of the Indian Telegraphic Act, 1885 and the District Court shall decide the quantum of compensation within a period of six months thereafter. No costs. Consequently, the connected miscellaneous petitions are closed;
(iii) In the light of the above orders, Crl.O.P(MD) No. 21717 of 2014 filed by Tamil Nadu Generation and Distribution Corporation Limited seeking police protection is closed; and
(iv) M.P(MD) No. 1 of 2014 in Crl.O.P(MD) No. 19703 of 2014 is closed, in view of the clarifications issued in other petitions."
