IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 30.11.2011 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P. NOS.22967, 23243 TO 23246 OF 2011 AND CONNECTED MISCELLANEOUS PETITIONS P.Nachimuthu .. Petitioner (in W.P.No.22967 of 2011) M.Rajamani .. Petitioner (in W.P.No.23243 of 2011) M.Selvakumar .. Petitioner (in W.P.No.23244 of 2011) P.Senthil Kumar .. Petitioner (in W.P.No.23245 of 2011) K.M.Balasubramanaian .. Petitioner (in W.P.No.23246 of 2011) Versus 1.The District Collector Tiruppur District Tiruppur. 2.The Tahsildar Kankeyam Taluk Tiruppur District. 3.M/s.Suzlon Energy Limited 10, 3rd Floor, Wellington Plaza No.90, Anna Salai Chennai – 600 002. https://hcservices.ecourts.gov.in/hcservices/ 4.M/s.Hari Wind Farms 4/50, Adivalli, Pudhupalayam Madathukulam Taluk Tiruppur District. .. Respondents (in all W.Ps.) PRAYER in all W.Ps.: Writ Petitions filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the records relating to the issue of the impugned order by the first respondent herein in Na.Ka.No.13075/2011/J1 dated 28.09.2011 and quash the same. For Petitioner in W.P.Nos.22967, : Shri.V.Raghavachari 23244 to 23246 of 2011 Senior Counsel for Shri.G.Saravanan For Petitioner in W.P.No.23243/2011 : Shri.N.Subramanian For Respondents-1 & 2 : Shri.K.V.Dhanapalan (in all W.Ps.) Additional Government Pleader For Respondent-3 : Shri.P.S.Raman (in all W.Ps.) Senior Counsel for M/s.B.Giridhara Rao For Respondent-4 : Shri.Vijay Narayan (in all W.Ps.) Senior Counsel for Shri.N.Umapathy C O M M O N O R D E R Even though, the interim applications are listed before me, by consent, the Writ Petitions themselves are taken up for the final hearing. 2.The core issue involved in all these Writ Petitions is as to whether the third respondent can be permitted to lay the transmission towers over a public cart track by providing dedicated transmission lines for the purpose of connecting it with the sub- station. Since the grievances of the petitioners in all the Writ Petitions are one and the same against the same respondents, they have been taken up together and a common order is passed. https://hcservices.ecourts.gov.in/hcservices/ 3.In order to decide the issues involved in these five Writ Petitions, the factual matrix surrounding the case requires a proper narration. 4.Heard Shri.V.Raghavachari and Shri.N.Subramanian, learned counsels appearing for the petitioners and Shri.K.V.Dhanapalan, learned Additional Government Pleader appearing for respondents 1 and 2, Shri.P.S.Raman, learned senior counsel appearing for the third respondent as well as Shri.Vijay Narayan, learned senior counsel appearing for the fourth respondent and perused the entire materials available on record. Facts in brief: 5.The third respondent is a generating Company engaged in manufacture, erection and operation of wind turbines. The electricity generated by the third respondent is to be sold to the State Electricity Board at the rate of Rs.3.39/- per unit, after the commencement of production. The State Electricity Board has been purchasing the electricity for much higher price from the open market due to insufficient power as the State is facing a power crunch. As per the agreement entered into between the third respondent and the State Electricity authorities, the power generation produced by the third respondent will have to be connected to the sub-station. The third respondent has got exemption from obtaining a licence under the Act, namely, the Electricity Act, 2003 as per the Electricity [Removal of Difficulty] (fifth) Order, 2005. Permission has also been obtained from the Tamil Nadu Generation and Distribution Corporation wholly owned by the Tamil Nadu Electricity Board. When the third respondent made attempts to lay the towers and overhead lines through the private lands, objections have been raised by the owners. Therefore, an alternative route was envisaged, by which, it was decided to take the overhead lines by constructing towers which are six in numbers and through the government cart track along with its overhead lines. 6.The third respondent made an application to the first respondent, District Collector seeking a no objection certificate. After obtaining a no objection certificate from the local Panchayat, the second respondent made an inspection along with the Revenue Inspector, Village Administrative Officer and Village Assistant and thereafter, sent a report to the first respondent recommending for https://hcservices.ecourts.gov.in/hcservices/ no objection certificate as there is no hindrance to use the cart track for taking men, cattle and vehicles. The third respondent has also completed the substantial work of erecting 43 towers excluding the six towers which are to be laid along with the government cart track. Objections from the public have been heard by the respondents 1 and 2 after issuing a public notice. 7.After considering the relevant records, particularly the recommendations made by the second respondent and the Revenue Divisional Officer as well as the objections, the first respondent has granted a no objection certificate for laying the towers with the overhead lines. The said order has been passed subject to the conditions mentioned therein. Accordingly, it is the responsibility of the third respondent in the event of any accident, it has to maintain the pathway without hindrance to the general public and the movement of vehicles and it will have to file a report to the Tamil Nadu Electricity Board and the Revenue Department about the condition of the cart track in every six months. More importantly when it is required by the Government the third respondent is obliged to alter or remove the overhead lines with the towers. Challenging the order passed by the first respondent dated 28.09.2011, all the petitioners herein have filed these writ petitions raising the very same grounds. 8.This Court reserved the cases for passing appropriate orders after hearing the learned counsels who appeared for the parties at length. Since a doubt has been raised on the applicability of the Works of Licensees Rules, 2006, the Writ Petitions were posted once again for further hearing. At that point of time, an application was filed by the President of Panchayat, who has been elected in the recent elections, seeking to implead himself contending that no such no objection certificate as alleged by the respondents 3 and 4 has been given and no resolution has been passed. Locus standi of the petitioners: 9.A perusal of the objections given by the petitioners from the records produced would show, that the objections originally were to the effect that the third respondent would take over the entire cart track. Before the respondents 1 and 2, they have contended that the cart track should not be used. While filing these writ petitions, averments have been made in the affidavits stating that the cart track which belongs to the local Panchayat and which https://hcservices.ecourts.gov.in/hcservices/ is being used by the petitioners should not be used by the third respondent to their detriment. However, by way of a common reply affidavit a plea has been raised questioning the competency of the third respondent to take the overhead line. Inasmuch as the petitioners are neither the owners nor the occupiers of the cart track, this Court is of the view that the petitioners can certainly approach this Court but only to the extent of seeking to ventilate their grievances pertaining to the usage. In other words, it is not open to the petitioners to contend that the third respondent shall not lay down the towers on the overhead line. The right of the petitioners is limited to the extent of the usage of the cart track and therefore, the objections also should be restricted to the same. 10.Hence, this Court is of the view that while the petitioners can come forward to this Court alleging that the right to use the cart track is affected, they cannot be allowed to contend that the said cart track shall not be used by the third respondent in any manner, more so when there is no restriction for the usage of the cart track by the petitioners to take their cattle and vehicles. The right of the petitioners is not a vested right. The Honourable Apex Court in ANDHRA PRADESH DAIRY DEVELOPMENT CORPORATION FEDERATION vs. B.NARASIMHA REDDY AND OTHERS [(2011) 9 SCC 286] considering the scope of vested right has held as follows: “39.Vested right has been defined as fixed; vested; accrued; settled; absolute; and complete; not contingent; not subject to be defeated by a condition precedent. The word "vest" is generally used where an immediate fixed right in present or future enjoyment in respect of a property is created. It is a "legitimate" or "settled expectation" to obtain right to enjoy the property, etc. (Vide Bibi Sayeeda v. State of Bihar [(1996) 9 SCC 516], Howrah Municipal Corporation v. Ganges Rope Co. Ltd. [(2004) 1 SCC 663] and J.S.Yadav v. State of U.P. [(2011) 6 SCC 570]." 11.Hence considering the facts involved, this Court is of the view that the petitioners do have the locus standi to file these writ petitions, but it is not open to them to contend that the cart track shall not be used by anybody much less the third respondent https://hcservices.ecourts.gov.in/hcservices/ while the same is not affecting their rights to be used as found by the first respondent. In this connection, it is to be seen that these Writ Petitions have not been filed as public interest litigations but only to the extent of contending that the petitioners are entitled to use the cart track. Therefore, this Court is of the view that the petitioners cannot seek to quash the no objection certificate given in favour of the third respondent. Submissions of the petitioners: 12.Shri.V.Raghavachari and Shri.N.Subramanian learned counsels appearing for the petitioners submitted that the first respondent does not have the power or authority to pass the impugned order. Section 68(1) of the Electricity Act, 2003 only confers the power only on the appropriate Government for granting permission to lay the overhead lines. Since no rules have been framed under Section 180 of the Electricity Act, 2003, the provision contained under Sections 6 to 12 of the Indian Electricity Act, 1910 will have to be made applicable. Section 185 of the Electricity Act, 2003 cannot over-ride Section 68 of the said Act. The provisions contained under Section 183 of the Electricity Act, 2003 cannot be made applicable to other provisions. The provisions contained under Section 10 of the Indian Telegraph Act, 1885 have not been followed. The learned counsels further submitted that the cart track is a public property and therefore the petitioners have the locus standi to file these writ petitions and once a property becomes a public property, the same cannot be allowed to be used by other persons. In support of his contentions, the learned senior counsel Shri.V.Raghavachari has made reliance upon the following judgments: "S.N.CHANDRASHEKAR AND ANOTHER vs. STATE OF KARNATAKA AND OTHERS [(2006) 3 SCC 208] A.ABDUL FAROOK vs. MUNICIPAL COUNCIL, PERAMBALUR AND OTHERS [(2009) 15 SCC 351] HARI RAM vs. JYOTI PRASAD AND ANOTHER [(2011) 2 SCC 682] JAGPAL SINGH AND OTHERS vs. STATE OF PUNJAB AND OTHERS [AIR 2011 SC 1123] POWER GRID CORPORATION OF INDIA LTD. vs. RAM NARESH SINGH AND OTHERS [AIR 2011 PATNA 83] C.RAM PRAKASH AND ANOTHER vs. POWER GRID CORPORATION OF INDIA LTD. AND ANOTHER [2011-4-L.W.924]" https://hcservices.ecourts.gov.in/hcservices/ Submissions of the respondents: 13.Per contra, Shri.P.S.Raman, learned senior counsel appearing for the third respondent submitted that in view of the Electricity [Removal of Difficulty] (fifth) Order, 2005, no licensee is required for the generating Company. Section 2(16) of the Electricity Act, 2003 deals with "dedicated transmission lines" and therefore, the same is governed by the Electricity [Removal of Difficulty] (fifth) Order, 2005. The appropriate Government under Section 2(5) of the Electricity Act, 2003 is the State Government. Action has been taken by the first respondent under Section 11 of the Electricity Act, 2003. The provision contained under Section 10 of the Electricity Act, 2003 have been complied with. Since no rules have been framed under Section 180 read with 67(2) of the Electricity Act, 2003 by the State Government there is no basis for the contentions raised by the petitioners. The petitioners have not raised these contentions either before the first respondent or in the affidavit originally. The petitioners do not have the locus standi to question the order of the first respondent. Inasmuch as the petitioners are neither owners nor occupiers as stipulated either under the Indian Telegraphic Act, 1885 or under the Indian Electricity Act, 1910, they cannot question the order impugned. 14.The learned senior counsel Shri.P.S.Raman, submitted that the third respondent is to supply the electricity at the rate of Rs.3.39/- per unit whereas the Tamil Nadu Electricity Board is buying the same at the rate of Rs.10/- in the open market. Therefore, considering the overwhelming public interest in favour of the respondents as against the petitioners and also by taking note of the power shortage available in the State, the Writ Petitions will have to be dismissed, more so when 43 towers have already been successfully installed and six towers alone will have to be installed. The senior counsel has also submitted that the alignment has been changed earlier in view of the objections of the villagers from taking it through their private lands which resulted in substantial loss in terms of money and time. Above all the cart track has been cleared by the third respondent by spending huge sum of money and the third respondent is also going through the same by taking its vehicle also. In support of his contentions, the learned senior counsel has made reliance upon the following judgments: https://hcservices.ecourts.gov.in/hcservices/ "BHARAT PLYWOOD AND TIMBER PRODUCTS PRIVATE LTD., vs. KERALA STATE ELECTRICITY BOARD [AIR 1972 KERALA 47] M.NITHYANANDHAM AND TWO OTHERS vs. THE CHAIRMAN, TAMIL NADU ELECTRICITY BOAD, MADRAS – 2 AND OTHERS [1994 WRIT L.R.445] E.VENKATESAN AND OTHERS vs. CHAIRMAN, TAMIL NADU ELECTRICITY BOARD, MADRAS AND OTHERS [AIR 1997 MADRAS 64] T.S.T.KAZNAVI vs. TAMIL NADU ELECTRICITY BOARD AND OTHERS [(2008) 2 MLJ 703] R.KANNAN vs. POWER GRID CORPORATION (INDIA) LTD. AND OTHERS [W.A.NO.464 OF 2008, ORDER DATED 10.04.2008] R.SANTHANA RAJ AND ANOTHER vs. THE CHIEF ENGINEER, NON-CONVENTIONAL ENERGY SOURCE, ANNA SALAI, CHENNAI AND OTHERS [W.P.(MD)NO.8844 OF 2011, ORDER DATED 08.11.2011] Objections of the Panchayat: 15.In this connection, it is relevant to point out that the local Panchayat has not objected to the proposed establishment of the tower and the overhead line on the earlier occasions. It is not as if the Panchayat was not aware of the on going project undertaken by the third respondent. A notice of public hearing was given by the respondents 1 and 2 and the objections have been heard. Since the first respondent is the Inspector of Panchayat, the Panchayat ought to have approached the said authority as this Court cannot go into the disputed question of fact more so when the earlier letter is not disputed by the said respondent. Surprisingly after the judgment has been reserved by this Court, an application has been filed by the Panchayat stating that it has not given such a no objection certificate. In this connection, it is pertinent to note that the Panchayat has never raised any objection to the first respondent contending that it has not passed any resolution earlier. It is not clear as to how the Panchayat has come into picture before this Court by filing an application hurriedly after the judgment has been reserved by this Court and posted once again for further arguments. The Panchayat has not taken any steps so far either before the first respondent or by filing any Writ Petition before this Court. Analysis of the impugned order: 16.Since this Court is going to consider the validity of the order impugned based upon the provisions of law in the https://hcservices.ecourts.gov.in/hcservices/ subsequent paragraphs the factual basis upon which the said order passed is discussed hereunder. After considering the report of the second respondent and the Revenue Divisional Officer as well as the objections given by the petitioners, the first respondent has passed the order impugned by granting a no objection certificate to the third respondent. A perusal of the order impugned would show that the interest of the petitioners have been taken into consideration by stipulating various conditions. As discussed above, the grievance of the petitioners could be placed before this Court only to the extent of usage of cart track. The case of the third respondent is that the cart track which was not in use earlier has been cleared by spending huge sum of money. Be that as it may, a factual finding has been given by the second respondent, which has been taken note of by the first respondent to the effect that there is sufficient passage available for the usage of men, cattle and vehicles. Infact the learned Additional Government Pleader has produced the rough sketch paving way for the cart track width that is available after the proposed usage by the third respondent varying from 7.76 metres to 57.70 metres. Therefore the minimum width is 7.76 metres and maximum 57.7 metres. A factual finding has been given by the first respondent that this passage is more than sufficient for taking the vehicles. 17.As discussed above, sufficient conditions have been imposed by the first respondent. The second respondent on inspection found that there is other alternative pathway and the usage of the cart track is very limited. There are no residential houses nearby. Inspite of all these facts elaborate arrangements have been made by providing sufficient area to be used as a cart track. Therefore, this Court is of the view that the Writ Petitions as filed are based upon misconception. When the first respondent being the Inspector of Panchayat has passed an order based upon the relevant materials, this Court cannot substitute its views and say that the same is not sufficient. Even assuming that there are practical difficulties that would arise in future, the petitioners can very well approach the first respondent to ventilate their grievances, in view of the conditions imposed while granting the no objection certificate under the order impugned. 18.A writ can only be issued when a party has got a legal right coupled with the corresponding duty on the respondents. While the petitioners have got legal right to use the cart track it cannot be said that the said right can be exercised by permitting the use https://hcservices.ecourts.gov.in/hcservices/ of the cart track as they like. There is nothing on record to suggest that the order impugned has been passed arbitrarily. When an administrative order has been passed by an authority on a consideration of the available materials on record and when such an order is not opposed to any statute or public policy, the same cannot be interfered with. Therefore this Court is of the view that in the absence of any arbitrary exercise of power by the first respondent and in view of the factual findings, coupled with the conditions imposed while granting the no objection certificate, the Writ Petitions are liable to be dismissed. Further even assuming there is some defect in an administrative order then the same should not be interfered with unless the facts warrant the exercise of the discretionary power. In this connection, it is apposite to refer the following passage of the Honourable Supreme Court in AIR INDIA LTD. vs. COCHIN INTERNATIONAL AIRPORT LTD. [(2000) 2 SCC 617]. "7......... The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene." Provisions of the Electricity Act, 2003 19.Since elaborate submissions have been made by the learned counsels appearing for the both sides on the applicability of the various provisions of the Electricity Act, 2003, this Court is constrained to go into the same even though in its considered view the same is not required for the purpose of deciding the present case on hand. Section 2(5) of the Electricity Act, 2003 defines an appropriate Government and the same is extracted hereunder: https://hcservices.ecourts.gov.in/hcservices/ "2(5)."Appropriate Government" means,- (a) the Central Government,- (i) in respect of a generating company wholly or partly owned by it; (ii) in relation to any inter-State generation, transmission, trading or supply of electricity and with respect to any mines, oil-fields, railways, national highways, airports, telegraphs, broadcasting stations and any works of defence, dockyard, nuclear power installations; (iii) in respect of the National Load Despatch Centre and Regional Load Despatch Centre; (iv) in relation to any works or electric installation belonging to it or under its control; (b) in any other case, the State Government having jurisdiction under this Act;" 20.A perusal of the said Section would reveal that the Central Government would be an appropriate Government only in respect of a generating company wholly or partially owned by it or in a case of any inter-state generation. Similarly, Section 2(36) of the Electricity Act, 2003 defines "inter-state transmission system" according to which it includes a system by means of main transmission line from territory of one State to another State. Section 2(37) of the Electricity Act, 2003 deals with "intra-state transmission system" which means any system for transmission of electricity other than an inter-state transmission system. The above said three provisions would make it clear that the Central Government is an appropriate Government only for a generating company wholly or partly owned by it and also in the case of any inter-state generation. Admittedly, we are dealing with a case involving a generating a company dealing with the dedicated transmission lines pertaining to the State. Therefore, inasmuch as we are dealing with the intra-state transmission system the authority covering third respondent would be the State Government and its authorities. This position is very clear from the rules. https://hcservices.ecourts.gov.in/hcservices/ 21.2(16) of the Electricity Act, 2003 defines a dedicated transmission lines and the same is extracted hereunder: "2(16)"dedicated transmission lines" means any electric supply-line for point to point transmission which are required for the purpose of connecting electric lines or electric plants of a captive generating plant referred to in section 9 or generating station referred to in section 10 to any transmission lines or sub-stations or generating stations, or the load centre, as the case may be;" 22.Similarly, Section 2(48) of the Electricity Act, 2003 deals with overhead line and Section 2(72) deals with transmission lines. 23.A conjoint reading of the above said provision would show that Section 2(16) of the Electricity Act, 2003 deals with dedicated transmission lines which is a separate category. The said dedicated transmission lines are confined to a generation station referable to section 10 of the Act. Section 2(72) of the Electricity Act, 2003 deals with all other transmission lines other than dedicated transmission lines. Overhead lines have been specifically dealt with under Section 2(48) of the Electricity Act, 2003. A combined and conjoint analysis of above three Sections would lead to the conclusion that they operate on their own distinct and separate fields. In other words, a dedicated transmission line as defined under Section 2(16) of the Electricity Act, 2003 is not a transmission line provided under Section 2(72) or a overhead line under Section 2(48) of the Electricity Act, 2003. Sections 10 and 11 of the Electricity Act, 2003 24.Section 10 of the Electricity Act, 2003 speaks about the generating companies. Section 10 (3) of the Electricity Act, 2003 mandates a generating company to submit technical details regarding its generating stations to the appropriate commission and authority and it has to coordinate with the Central Transmission Utility or the State Transmission Utility, as the case may be. This Section makes it very clear that what is required from the third respondent generating company is to submit the technical details to the appropriate commission and the authority apart from coordinating https://hcservices.ecourts.gov.in/hcservices/ with the Central or the State Transmission Utility, as the