R. Kumar and Others vs The Superintending Engineer, Tamil Nadu Electricity Board and Others

V.M. Velumani, J.—In all these Writ Petitions issue is one and the same. Therefore, all the Writ Petitions are heard together and disposed of by this common order.

Except the petitioner in W.P(MD). No. 18346 of 2013, other petitioners in the Writ Petitions have prayed for forbearing the respondents from drawing the High Tension line Towers over the petitioner''s agricultural land situated in S. Nos. 358/1A, 358/1A1, 357/6, 358/1, Medhukummal Village, Vilavancode Taluk, Kanyakumari District and the land in S. No. 383/14 and 362/9B, Kulapuram Village, Vilavancode Talulk. W.P(MD). Nos. 15208 and 18819 of 2013 are filed for forbearing the respondents 2 to 6 or their men or agents from erecting any high tension electric tower through the petitioner''s property in New Survey No. 290/5-4, Mullanginavilai, Baloor Village, Vilavancode Taluk, Kanyakumari District and directing the respondents not to install / erect any transmitter lines through the petitioner''s property situated at S. No. 373/5 Kuzhivilai, Kulapuram Village, Vilavancode Taluk, Kanyakumari District, based on the petitioner representation dated 21.10.2013 respectively.

The petitioner in W.P(MD). No. 18346 of 2013 has prayed for issue a direction to the respondents to consider the petitioner''s representations dated 22.10.2013 and 23.10.2013 and consequently restraining the respondents from installing the Electricity High Tension Tower in the petitioner''s agricultural land situated in S. No. 4814, R.S. No. 357/8, Kuzhinjanvillai Veedu, Methukummel Village, Suriycode Post, Vilavancodu Taluk, Kanyakumari District.

According to the petitioners they are owners of the agricultural lands as mentioned in Writ Petitions. The respondents are trying to install High Tension Electricity Tower in the land of the petitioner in W.P.(MD). No. 18346 of 2013 and other petitioners have stated that respondents are trying to draw High Tension Electricity Tower lines over their agricultural land. The respondents did not obtain consent from them. The respondents have not acquired their land and not paid compensation. The alignment is made only with a view to help influential persons. Alignment can be easily deviated to erect Tower and draw the line through Government Poramboke land. The President of Panchayat also given an alternative alignment, sketch which would enable the respondents to install and draw lines through Government Poramboke land. The respondents have not considered the said alternate proposal. Therefore, they have filed the present Writ Petitions.

The learned counsel for the petitioners relied on para 11 in Judgment reported in The Superintending Engineer and The Junior Engineer, Distribution, Tamil Nadu Electricity Board Vs. M. Sengu Vijay and The Superintending Engineer, Tamil Nadu Water and Drainage Board--> :-

"11. A perusal of the factual aspects of the unreported Judgment (W.A. (MD) No. 531 of 2009) relied on by the appellants shows that a transformer was put lawfully by the Board during the lifetime of the owner of the land. The Division Bench of this Court has also observed in that case that the land owner should have granted permission or consent for erecting the transformer. Admittedly, in this case, it is the specific stand of the Board that since the erstwhile owner did not object to the erection of the electric poles, it has to be construed as implied consent. Thus it is clear that no consent was obtained from the erstwhile owner and no compensation was also paid by the Board which is a mandatory requirement to be followed. Therefore, the said Judgment relied upon by the learned counsel for the appellants is not applicable to the facts of this case. Under such circumstances, we are of the view that there is no valid ground to interfere with the order passed by the learned single Judge and we confirm the order of the learned single Judge".

The learned Additional Advocate General submitted that alignment was formulated, after inspection of site. The entire scheme was approved by the Tamil Nadu Electricity Board in its Proceedings dated 13.12.2007 and a sum of Rs. 518.96 Lakhs was sanctioned for implementing the said scheme. As per Section 42 of the Electricity (Supply) Act, 1948, Electricity Board is exempted from provisions of Sections 12 to 16 , 18 and 19 of the Indian Electricity Act, 1910. In implementing the present scheme, the Electricity Board is exercising the powers of the Telegraph Authority under Indian Telegraph Act, 1885. As per Section 10 of the Indian Telegraph Act 1885, the Electricity Board need not get consent of the land owners, before setting Towers and drawing over head lines. The electricity Board is empowered to erect poles / Towers and draw line, without any prior permission from land owners. The Board is not acquiring land and therefore, no necessity to pay any compensation. Board is only using the land and if any damage is caused to the land owners, then only they are entitled to compensation.

Even though, the consent is not required from land owners, the Board published the scheme in one issue of Dinamalar, Nagercoil, dated 30.05.2008, inviting objections within two months, as per Section 29(2) of the Electricity (Supply) Act, 1948. The said notice was published in Gazette on 23.07.2008. The scheme was mentioned as item Nos. 7 and 9 in the notice. No objection was received from any land owners or interested persons.

The learned Additional Advocate General submitted that 90% of the scheme had been implemented. Except the Writ Petitioners, others have not objected for the alignment, as proposed by the respondents. The scheme is for the benefit of general public to supply un-interrupted power supply. Unless the scheme is implemented without any delay cost of scheme will be escalated and the respondents will not be in a position to supply required electricity to general public. The learned Additional Advocate General submitted that 90% of the work has been completed and more than Rupees Six Crores has been spent. The present alignment is not formulated to benefit of few influential persons. The alignment cannot be changed or deviated at the instance of the individual for their interest. If alignment is changed at any place it will have chain re-action and entire scheme cannot be implemented for the requirement of the general public.

The learned Additional Advocate General relied on the following Judgments.

(i) Judgment of this Court made in W.P(MD). No. 36566 of 2007 (T.S.T. Kaznavi Vs Tamil Nadu Electricity Board, rep. by its Chairman, NPKKR Maligai, 800 Anna Salai, Chennai " 600 002 others), dated 28.01.2008.

On the other hand, Mr.P.S. Raman, learned Additional Advocate General has taken me through various provisions of the Indian Electricity Act, 1910, Electricity (Supply) Act, 1948 and the Electricity Act, 2003, apart form the provisions in Indian Telegraph Act, 1885. He would also rely upon various judgments to show that when the powers are enforced by the respondent Electricity Board as Telegraph authority under the Indian Telegraph Act, 1885 especially under Section 10 , it does not require any notice to be sent to the occupiers or owners and the conduct will not amount to acquisition.

23......

Ultimately, the Full Bench has held as follows:-

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 event, 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.

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 Judgment. The quantum of damages shall be fixed on the basis of the principles enunciated hereinabove. Whether claimants had question to be considered by the District Judge on the evidence in each case and subject to the presumption and onus indicated above."

24.....

30...... 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 AIR 1972 Kerala 47 cited supra."

25....

19.... It is also clear therefrom that no notice is required to the owner before lying the poles or constructing any tower, nor any consent is required from them."

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 judgments, especially relating 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 power as "State Transmission Utility" and the compensation is determinable as per Section 16 of the Indian Telegraph Act, 1885."

(ii) Judgment of this Court made in W.A(MD). No. 602 of 2011 (C. Ram Prakash and others Vs Power Grid Corporation of India Ltd., and others).

"24. The learned counsel for the appellants made reliance upon the Judgment of the Full Bench of this Court in Arumugam V. State of Tamil Nadu 2001(4) CTC 353. We are afraid that the said case has no relevance to the present case on hand. The Full Bench of this Court was dealing with a conscious omission made by legislature touching upon Article 21 of the Constitution of India, whereas considering the object behind the Indian Telegraph Act and the Electricity Act, 2003, and in view of the power available under Section 10 of the Indian Telegraph Act, 1885 the respondent No. 1 has got every jurisdiction to erect the towers."

(iii) Judgment reported in M/s. Sri Vignesh Yarns Pvt. Ltd. Vs. S. Subramaniam Gounder and Others, .

"23. Learned single Judge has elaborately discussed the provisions of the Indian Telegraph Act, 1885 and the Electricity Act, 2003 viz-a-vis the power of the District Collector/ Magistrate, and the conclusion arrived at by the learned single Judge, in our view, needs no interference. However, we are of the view that the learned single Judge is not correct in again sending the matter back to the Electricity Board to take a decision independently in respect of erecting transmission lines, without reference to the order passed by the District Collector. In our view, the learned single Judge ought to have directed the Electricity Board to proceed with the completion of erecting transmission lines through the original route and complete it as expeditiously as possible.

(iv) Judgment of this Court made in W.P(MD). No. 1624 of 2011 (C. Ram Prakash and others Vs Power Grid Corporation of India Ltd., and others), dated 27.06.2011.

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, T. Narayanan Vs. The District Executive Magistrate-cum-District Collector and Power Grid Corporation of India Limited, a Division Bench of this Court wherein it has been held that that the Board has got every right to erect the pole wherever necessary without the consent of the land owner and Court does not interfere with the process. Similarly, in another Division Bench Judgment of this Court made in W.A. No. 464 of 2008 dated 10.04.2008, it has been held that even the District Magistrate cannot suggest an alternative route for the purpose of laying down the transmission lines especially when the corporation has chosen the most techno economic feasible route. Likewise, I have also relied on the Judgment of this Court made in W.P. No. 36566 of 2007 wherein also almost all the decisions reported herein have been extracted and it has been held that for the State Transmission Committee, there is no necessity to give any notice for the purpose of erection of tower or for making transmission lines. The relevant portion of the judgment is extracted as under:-

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.

In the Judgment of this Court in W.P( No. ) 18367 of 2009 (Dr. M. Ponnuswamy and another Vs The Chairman, Tamil Nadu Electricity Board, Chennai and others), dated 29.10.2009 the relevant portions can be usefully extracted below. "12....

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 under Section 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.

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 petitioner 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.

For the above reasons and based on the Judgements referred to above the learned Additional Advocate General appearing for respondents prayed for dismissal of Writ Petitions.

Heard the learned counsel appearing for the petitioners and the learned Additional Advocate General appearing for the respondents and perused the materials on record and the Judgements relied on by the counsel on either side.

The contentions of the learned counsel for the petitioners are untenable, in view of earlier Judgment of this Court and Hon''ble Apex Court. The issue involved in these Writ Petitions are no longer res integra. In the Judgments relied on by the learned Additional Advocate General, the following issues were decided.

(i) Electricity Board, while erecting High Tension Poles or Towers and while drawing the High Tension Lines exercised the power of Telegraph authority.

(ii) As per Section 10 of the Indian Telegraph Act, 1885, it is not necessary to issue personal notice or get prior consent from the private land owners. Section 10 of the Indian Telegraph Act, 1885 reads as follows:-

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 lines 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 acquired any right 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 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."

(ii) Even the District Collector has no power to suggest an alternate alignment.

(iii) The Electricity Board while erecting the tower and drawing High Tension Lines in the the lands belonging to the land owners like petitioners is not acquiring the land, but, only using the same.

(iv) In the circumstances they are not liable to pay any compensation to land owners like petitioners and the land owners can only claim compensation if any damage caused to them while erecting Tower or drawing the lines.

The judgment reported in The Superintending Engineer and The Junior Engineer, Distribution, Tamil Nadu Electricity Board Vs. M. Sengu Vijay and The Superintending Engineer, Tamil Nadu Water and Drainage Board--> relied on by counsel for the petitioners does not advance the case of the petitioners. In the said Judgement, Section 10 of the Indian Telegraph Act was not considered and it was not decided, whether in view of Section 10 of the Act consent of the land owner, occupier or interested persons are necessary or not. In view of the ratio laid down by this Court, in the Judgment relied on by the learned Additional Advocate General referred to above and non-consideration of Section 10 of the Indian Telegraph Act in Judgement reported in The Superintending Engineer and The Junior Engineer, Distribution, Tamil Nadu Electricity Board Vs. M. Sengu Vijay and The Superintending Engineer, Tamil Nadu Water and Drainage Board--> the said Judgment is not advancing the case of the petitioners.

The petitioners have not alleged that they have suffered damages by erection of High Tension Tower and drawing of High Tension Lines in the land and across their land. They have not filed any objection when called for by the respondents, by paper publication dated 30.05.2008 and Gazette publication dated 23.07.2008. The objections sent by the petitioner dated 23.10.2013 is belated one and contention of the learned Additional Advocate General that said representation was sent only to create cause of action to file present writ petitions has considerable force and I am inclined to accept the said contention.

In view of the Judgments referred to above the Writ Petitions are devoid of merits and liable to be dismissed. Accordingly, the Writ Petitions are dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.