IN THE HIGH COURT OF JUDICATE AT MADRAS DATED: 03.11.2011 CORAM: THE HONOURABLE MR. JUSTICE V. DHANAPALAN W.P.No.21751 of 2008 Manickam ... Petitioner vs. 1. The District Collector, Perambalur, Tamil Nadu. 2. The Superintending Engineer, Perambalur Electricity Distribution Circle, Perambalur. 3. The Executive Engineer, Tower Line Carrier, Tamil Nadu Electricity Board, Mannarpuram, Trichy. 4. The Assistant Executive Engineer, Tower Line Carrier, Tamil Nadu Electricity Board, Mannarpuram, Trichy. 5. The Assistant Engineer, Tower Line Carrier, Tamil Nadu Electricity Board, Mannarpuram, Trichy. 6. Madras Cements Limited, Corporate Office, Auras Corporate Centre, 98, Dr.Radhakrishnan Salai, Mylapore, Chennai – 4, rep. by its Deputy General Manager, A.S.Sivakumar ... Respondents (R6 impleaded as per court order dated 08.12.2008 in M.P.No.2/2008 in W.P.No.21751/2008) https://hcservices.ecourts.gov.in/hcservices/ Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari, to call for the records pertaining to the order of the 1st respondent dated 29.08.2008 in R.C.15252/C2/2008 and to quash the same. For Petitioner : Mr.D.Balachandar for Ms.A.G.Esthar Dorathy For Respondents : Mr.Dig Vijaya Pandian, for R1 Addl. Government Pleader Mr.G.Vasudevan, for R2 to R5 Mr.Rahul Balaji, for R6 O R D E R Heard Mr.D.Balachandar, learned counsel appearing for Ms.A.G.Esthar Dorathy, learned counsel for the petitioner; Mr.Dig Vijaya Pandian, learned Additional Government Pleader appearing for the 1st respondent; Mr.G.Vasudevan, learned counsel appearing for respondents 2 to 5 and Mr.Rahul Balaji, learned counsel appearing for the 6th respondent. 2. The petitioner has challenged the order dated 29.08.2008 passed by the District Collector/1st respondent herein vide proceedings in R.C.15252/C2/2008, wherein, in exercise of the powers conferred under Section 16(1) of the Indian Telegraph Act (Central Act XIII of 1885) read with Section 42 of Electricity (Supply) Act, 1948, taking into consideration the salient features of the scheme and in the larger interest of the public and the heavy loss that would occur in case of delay in the execution of the project, the District Collector has permitted the Superintending Engineer, Perambur Electricity Distribution Circle to enter upon the land in S.F.No.30/2A of Pujankarayanallur Village of Kunnam Taluk and erect Electric Tower in that land. 3. According to the petitioner, he is the absolute owner of the property situated at Pujankarayanallur, Perambalur, comprised in Survey No.30/2A, bearing Patta No.804 totally measuring about 8.68.0 ars and is in absolute possession and enjoyment of the same. He would submit that one Neyveli High Tension Electric line runs over the western side of his land and two 11 K.V. electric lines are running over his land by erecting 17 posts by the Electricity Board in the middle of the land without his knowledge and permission and they still exist in their land, causing hindrance to usage of his land. Moreover, the TNEB, Ariyalur had all of a sudden, without his knowledge and permission, digged pits in some portion of his property and also destroyed the live fences and crops in his property by JCB with a view to erect some more electric posts and to take electric line upon his property. When there are unauthorized lands available for installing electric lines, as the existence of electric lines in his land causes hindrance for the usage of his land, the petitioner approached the officials of the TNEB requesting them to erect electric lines in the unauthorized lands available. https://hcservices.ecourts.gov.in/hcservices/ 3.1. Despite his request, the respondent/TNEB dug pits and holes in his land to lay electric posts to install electric lines and in that regard, the petitioner caused a legal notice dated 16.02.2008 to the respondent Board not to take electric lines upon his land. As no steps were taken by the Board to stop digging in his land, the petitioner instituted a suit in O.S.No.84 of 2008 on the file of the District Munsif at Perambalur for permanent injunction restraining the TNEB, Ariyalur from interfering with the peaceful possession and enjoyment of his property by installing posts and drawing electric lines in any other way. The said suit is still pending. 3.2. In this regard, the petitioner also sent representation to the Chairman, TNEB, Chennai-2 on 08.07.2008 about the arbitrary action of respondents 2 to 5. Thereafter, by a letter dated 28.07.2008, the petitioner was called for an enquiry on 13.08.2008 by the 1st respondent/District Collector on the basis of the letter given by the 2nd respondent. On 22.08.2008, the petitioner participated in the enquiry conducted by the 1st respondent through counsel and submitted his written reply dated 22.08.2008 with the 1st respondent, in which he requested the 1st respondent to install electric tower and line in alternate way as 19 electrical posts were already erected in his land. 3.3. Without considering his reply, the 1st respondent passed an order on 29.08.2008 permitting the 2nd respondent to enter upon the petitioner's land. Challenging the said order that it is illegal and unconstitutional, the petitioner is before this court with the present writ petition. 4. Respondents/TNEB have filed counter affidavit. They have taken a clear stand in the counter that the usage of the land is not affected and the area occupied by the Tower legs above ground level is approximately 32 sq. ft. only for 2 Towers erected in the land in S.F.No.30/2A. The new line runs as close to the 11 KV and 33 KV line already existing and wastage of the land is minimum. As per TNEB Rules, compensation is payable only for trees and crops. As there were no crops or trees in the land, compensation is not applicable to the petitioner. 5. After exhaustive arguments, learned counsel for the petitioner made a consistent plea that the owner of the land has to be paid compensation for diminution in land value when towers and poles are erected on and electric lines drawn over their lands. In this regard, he has relied on a Full Bench decision of the Kerala High Court reported in AIR 1996 KERALA 309 in the case of Arya Antherjanam vs. Kerala State Electricity Board, Trivandrum, wherein, it is held as follows: "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 https://hcservices.ecourts.gov.in/hcservices/ lines, towers and posts. It is quite plausible that every land owner 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 trees 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 judgment. 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." 6. Taking note of the factual aspects, it is clear that there are no trees or crops in the petitioner's land except the erection of electric towers, which, according to the petitioner, diminishes the value of his land and therefore, he has to be compensated appropriately. However, the grievance of the petitioner as regards the assessment of the diminution value of the land cannot be determined by the Writ Court under Article 226 of the Constitution of India, but, it can be done only by letting in oral and documentary evidence before the competent Civil Court. 7. In view of the above facts and circumstances and the legal principles laid down in the decision stated supra, it is for the petitioner to work out his remedy before the Civil Court of competent jurisdiction and therefore, this writ petition is dismissed with liberty to the petitioner to work out his remedy for claim of compensation in respect of diminution of his land before the https://hcservices.ecourts.gov.in/hcservices/ appropriate Civil Court either in the pending Suit or in any other form, which he desires. No costs. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar. abe To : 1. The District Collector, Perambalur, Tamil Nadu. 2. The Superintending Engineer, Perambalur Electricity Distribution Circle, Perambalur. 3. The Executive Engineer, Tower Line Carrier, Tamil Nadu Electricity Board, Mannarpuram, Trichy. 4. The Assistant Executive Engineer, Tower Line Carrier, Tamil Nadu Electricity Board, Mannarpuram, Trichy. 5. The Assistant Engineer, Tower Line Carrier, Tamil Nadu Electricity Board, Mannarpuram, Trichy. 1 cc To Mr.G.Esther Dorathy, Advocate Sr 67170 1 cc To Mr.Sathish Parasaran, Advocate Sr 67386 W.P.No.21751 of 2008 la[co] gp/18.11. https://hcservices.ecourts.gov.in/hcservices/