IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED ::04-04-2008 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN WRIT PETITION No.19676 OF 2007 Minor Vignesh Kanniayaram rep.by its mother and natural guardian Dr.T.Chandrakala ...Petitioner -vs- 1.Power Grid Corporation of India Limited (A Govt. of India Enterprise) rep. by its General Manager B-9, Qutab Institutional Area Katwaria Sarai, New Delhi 2.Power Grid Corporation of India Limited Regional Office, rep.by its Manager, SR-II, 33 Race Course Road, Bangalore. 3.Power Grid Corporation of India Limited rep. by its Chief Manager No.3 First Floor, PMR Layout Extension Civil Aerodrome P.O. Coimbatore – 14. 4.The District Collector Coimbatore District Coimbatore. ...Respondents Petition under Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus calling for the records of the fourth respondent's proceedings in R.Dis-4007/2007/C3 dated 09.05.2007 quash the same and consequently forbear the respondents 1 to 3 or their men or agents or subordinates or any one claiming under them from in any manner laying any High Tension Transmission lines or erecting the Towers for the same over the lands of the petitioner in Survey Nos.504, 506/2, 507/5, 507/6, 508/1, 509 and 516 of Karumathampatti Village, Palladam Taluk, Coimbatore District. For petitioner : Mr.R.Thyagarajan, Senior Counsel for Mr.P.Srinivas https://hcservices.ecourts.gov.in/hcservices/ For respondents 1 to 3 :Mr.Jayesh Dolia for M/s.Aiyar & Dolia For respondent 4 : Mr. Hasan Fazal Government Advocate O R D E R This Writ Petition has been filed by one Minor Vignesh Kanniayaram represented by his mother and natural guardian Dr. T. Chandrakala, challenging the proceedings of the District Magistrate and District Collector, Coimbatore, dated 09.05.2007, in and by which the objections of the petitioner for erection of High Tension Transmission lines over the lands of the petitioner were overruled. 2. The petitioner's case is as follows : i Petitioner is the owner of the lands in S.Nos.504, 506/1, 507/1, 508, 509 and 516/1 of Karumathampatti Village, Palladam Taluk, Coimbatore District which were to be used for the purpose of starting an educational institution and which are highly valuable lands. While so, the respondents 1 to 3, through their subordinates, started to trespass upon the petitioner's lands, took measurements and made preparations for the erection of high towers for high tension transmission line. On enquiry, the petitioner came to know that the lines were not originally passing through his lands but were due to pass over other lands to the north west of the petitioner and due to their influence and stature, the lines were shifted to come across his lands. Hence, he raised his objections but the same were not considered nor his consent was sought. Thus, when the respondents were about to take up the works of erecting the towers across the petitioner's lands, finding no other alternative, the petitioner moved this Court in W.P. No.1404 of 2007 which was disposed of with directions to the District Collector, Coimbatore, the fourth respondent to hear and pass orders on his objections. Accordingly, the fourth respondent conducted hearings but failed in the hearings to go into the detailed objections and suggestions of the petitioner and accepted the claim of the respondents 1 to 3 treating the economic viability of the transmission line alone and forgetting that the petitioner would be put to grave loss and lose the right over the lands. Added to this, the fourth respondent did not even go into the question of compensation or damages for laying of the lines and passed an order on 09.05.2007 against which this writ petition has been filed on various grounds that: ii the fourth respondent has not taken into consideration the loss and damage caused to the https://hcservices.ecourts.gov.in/hcservices/ petitioner and has not exercised the power under the provisions of the Indian Telegraph Act, 1885; iii the rights of the citizens have not at all been considered and the petitioner's legitimate rights cannot be taken away in such a callous manner; iv the fourth respondent has erred in taking into account the techno-economic feasibility of the transmission line project alone ignoring the loss and damages caused to the petitioner; v the alignment has been deviated in order to avoid the lands of some influential persons and this deviation in alignment has resulted in the severing of the petitioner's lands and if the transmission line is taken through the petitioner's lands, they cannot be used for any other purpose. 3. Respondents 1 to 3 have filed their counter, stating that: a. After taking into consideration their statement of defence and after hearing the objections of the petitioner, the fourth respondent, by his order dated 09.05.2007, exercising his power under Section 16(1) of the Telegraph Act, overruled the petitioner's objections and directed them to proceed with the line through the petitioner's lands as planned pursuant to which they have started executing the work; b. on 19.05.2007, the petitioner's mother came to the site and prevented them from proceeding with the work and hence, they lodged a complaint at Karumathampatty Police Station against the petitioner's mother and despite the same, the henchmen deployed by the petitioner's mother interfered with their execution of work everyday with a view to delay the progress in work and once again, a police complaint was lodged on 23.05.2007; c. there is no possibility for damage and danger with regard to high tension transmission line which would not have any impact on human beings, animals, plants, etc. or on the geological or ecological system beyond the statutory clearance/norms provided by the Electricity Rules, 1956; and d. Inasmuch as the transmission line requires only a clear corridor of 48 metres i.e. 24 metres on either side from the centre of the transmission line, all crops can be cultivated and fruit-bearing trees of short height can be grown and building put up by maintaining sufficient safety electric clearance as per the https://hcservices.ecourts.gov.in/hcservices/ Electricity Rules and as such, the writ petition has to be dismissed considering the national importance involved in the project. 4. Mr.R.Thyagarajan, learned Senior Counsel appearing for the petitioner, has contended that the line over the land of the petitioner, as seen from the sketch shows that the line has been deliberately taken in a zig zag manner and it has been unnecessarily bent for the sole reason of taking it over the boundary of his lands, thereby denying the right to the property for which appropriate damages have to be paid. He has also argued that since the Power Grid Corporation has ignored the damages that would be caused to the petitioner, mere payment of compensation alone will not protect him from damages and loss and accordingly prayed for restraining the Power Grid Corporation from entering into the petitioner's lands. He further contended that the District Collector has not independently considered all the objections of the petitioner and also the existence of temple and therefore the impugned order is liable to be set aside. 5. In support of his contentions, learned Senior Counsel for the petitioner has cited the following decisions : (i) AIR 1963 SC 375, State of Mysore and others vs. Shivabasappa Shivappa Makapur : "3...For a correct appreciation of the position, it is necessary to repeat what has often been said that tribunals exercising quasi- judicial functions are not Courts and that therefore they are not bound to follow the procedures prescribed for trial of actions in Courts nor are they bound by strict rules of evidence. They can, unlike Courts, obtain all information material for the points under enquiry from all sources and through all channels, without being fettered by rules and procedure which govern proceedings in Court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and given him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case but where such an opportunity had been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in Courts. ii. AIR 1969 SC 48, Orient Paper Mills Ltd. v. Union of India : “8. If the power exercised by the Collector was a quasi-judicial power-as we hold it to be- that power cannot be controlled by the directions https://hcservices.ecourts.gov.in/hcservices/ issued by the Board. No authority however high placed can control the decision of a judicial or a quasi-judicial authority. That is the essence of our judicial system. There is no provision in the Act empowering the Board to issue directions to the assessing authorities or the appellate authorities in the matter of deciding disputes between the persons who are called upon to pay duty and the department. It is true that the assessing authorities as well as the appellate authorities are judges in their own cause; yet when they are called upon to decide disputes arising under the Act they must act independently and impartially. They cannot be said to act independently if their judgment is controlled by the directions given by others. Then it is a misnomer to call their orders as their judgments; they would essentially be the judgments of the authority that gave the directions and which authority had given those judgments without hearing the aggrieved party. The only provision under which the Board can issue directions is Rule 233 of the Rules framed under the Act. The rule says that the Board and the Collectors may issue written instructions providing for any supplemental matters arising out of these Rules. Under this rule, the only instruction that the Board can issue is that relating to administrative matters; otherwise that rule will have to be considered as ultra vires Section 35 of the Act. (iii) AIR 1990 SC 1984, S.N.Mukherjee vs. Union of India : " 34. The decisions of this Court referred to above indicate that with regard to the requirement to record reasons the approach of this Court is more in line with that of the American Courts. An important consideration which was weighed with the Court for holding that an administrative authority exercising quasi-judicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity in the decisions; and (iii) https://hcservices.ecourts.gov.in/hcservices/ minimise chances of arbitrariness in decision- making. In this regard a distinction has been drawn between ordinary Courts of law and tribunals and authorities exercising judicial functions on the ground that a Judge is trained to look at things objectively uninfluenced by considerations of policy or expediency whereas an executive officer generally looks at things from the stand point of policy and expediency. 35. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decisions-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi- judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is no required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge." (iv) AIR 1998 Kerala 124, Valsamma Thomas vs. Additional District Magistrate, Alappuzha and another : "12. Thus, on review of the authorities of this question, we come to the following conclusions: https://hcservices.ecourts.gov.in/hcservices/ (1) The District Magistrate has to exercise his discretion judicially. (2) He has to pass the order under Section 16(1) of the Telegraph Act, after hearing the parties and after taking such evidence as is required with regard to the objections raised. (3) The order passed by the court should be a speaking order. (4) The order should reflect the objections raised by the parties and the reasons given by the Magistrate for accepting or rejecting the same. (5) The order should also reflect the materials relied on by the District Magistrate for arriving at the conclusion. If the discretion is exercised by the District Magistrate as above, then unless it is shown that the findings are perverse or that the proceedings are vitiated by mala fides this Court will not be justified in interfering with such orders. This Court will not be justified in substituting its own opinion. It is also worth bearing in mind that this Court has not got technical expertise and will be slow to interfere with such matters." (v) (2003) 4 SCC 557, Canara Bank and others vs. Debasis Das and others : " 19. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a grant extent on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression "civil consequences" encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life." https://hcservices.ecourts.gov.in/hcservices/ 6. Per contra, Mr.Hasan Fazal, learned Government Advocate, appearing for the fourth respondent/District Collector, has contended that the District Collector, who is also a Magistrate under the Act, has considered the entire objections raised by the petitioners independently and rejected the objections and further directed the Corporation to proceed with the erection of H.T.Power Lines. Therefore, the District Collector has passed an order under Section 16 (1) of the Indian Telegraph Act,1885, overruling the objections of the petitioners, after analysing the technical feasibility for change of alignment and permitting the Corporation to take the power line through the land owned by the petitioner. He strengthened his submissions on "eminent domain" and in the interest of greater public purposes, the individual interest cannot be against it and the authorities have every right to take note of the public interest over the individual interest. Therefore, there is no infirmity in the order passed by the District Collector and the same cannot be interfered with. 7. On the other hand, Mr.Jayesh Dolia, learned counsel appearing for the Corporation, has strenuously contended that the Corporation is the Central Transmission Utility under the Ministry of Power and has been entrusted with the Project to provide quality power at large with greater reliability particularly to the agricultural, residential and commercial establishments for the State of Tamil Nadu and it is executing the project after observing all legal procedures under the provisions of the Act and the Rules. He also submitted that in the entire section of the project, foundation work has been completed at 112 locations and erection of towers is in progress and it is a time bound project to be completed by January,2008 as per schedule and because of the pendency of the writ petitions, they could not proceed further. The learned counsel made a point that the Government of India, in exercise of powers conferred by Section 164 of the Electricity Act, 2003, has passed an order dated 24.12.2003 to exercise all powers vested in the Telegraph Authority in respect of electrical lines and electrical plants established or maintained for transmission of electricity or for the purpose of telephonic or telegraphic communication necessary for the proper coordination of work. As per Section 10 of the Indian Telegraph Act, 1885, it is not necessary to issue personal notice or to get prior consent from the private land owners and as per Section 10(c) of the said Act, if the property is vested in or under the control of any local authority, then, it is necessary for the petitioner to get permission from such authority. He vehemently contended that the transmission line route is as per the experts opinion and the most techno-economically feasible route is chosen causing least damage after complying with the statutory clearances and avoiding places of inhabitation, worship and densely populated areas, including the geological or ecological system. Therefore, the whole process undertaken by https://hcservices.ecourts.gov.in/hcservices/ the Corporation is for a public purpose and any re-alignment of this line at this advanced stage is not at all techno- economically feasible and any delay in completing the project or alteration in route will cause heavy loss to the Government exchequer. Hence, in the absence of any valid reasons to object to the erection of transmission lines and when there is larger public interest involved in the project and also there is no damage to the properties of the petitioner, the petitioner cannot stall the project by invoking the jurisdiction under Article 226 of the Constitution of India. 8. In support of their contentions, learned counsel for the respondents have cited the following decisions : (i) AIR 1972 Kerala 47, Bharat Plywood and Timber Products Private Ltd. vs. Kerala State Electricity Board Trivandrum and others : "23. It is clear from the wording of Section 16 and particularly from the expression "the District Magistrate may, in his discretion", that an order will not be forthcoming automatically. A District Magistrate may in his discretion in a given case refuse or decline to pass an order that the telegraph authority shall be permitted to exercise the powers. The wording is significant. The District Magistrate does not grant permission to the authority. But, he orders that the authority "shall be permitted." The discretion conferred by the section on the District Magistrate is certainly a judicial discretion, and, in cases where the District Magistrate refuses to pass an order that the telegraph authority shall be permitted to exercise the powers mentioned in Section 10, it is inconceivable that the telegraph authority may, notwithstanding such refusal, continue to exercise such powers. The wording of the section is thus itself indicative of the fact that in cases of resistance or obstruction the District Magistrate will have to decide whether the authority should be permitted or not to exercise the powers under Section 16 of the Telegraph Act. This necessarily means that the telegraph authority cannot override or ignore the resistance or obstruction and continue to exercise the powers under Section 10 notwithstanding such resistance or obstruction. It follows that, when an owner or occupier resists or obstructs the exercise of the power under Section 10, the telegraph authority will have to approach the District Magistrate for an order under sub- section (1) of an order under sub-section (1) of S.16 and can exercise the power under Section 10 only in cases where the District Magistrate deems it fit to pass an order that he shall be permitted to https://hcservices.ecourts.gov.in/hcservices/ do so. The power conferred by Section 10 is thus a conditional power; conditional on an order being passed under Section 16(1) by the District Magistrate that the authority may be permitted, in case of resistance or obstruction, to exercise the power. This is so not only in regard to a telegraph authority but to the public officer or any other person authorised under the Electricity Act. " (ii) 1994 WLR 445, M.Nithyanandam and two others vs. The Chairman, Tamil Nadu Electricity Board, Madras-2 and others : " 26. The above section, in my opinion, gives authority for placing the poles or the towers in a private land and clause (d) referred to above provides for payment of compensation. S.16(1) provides for the Board approaching the District Magistrate in case of resistance by the owner. S.16(3) provides for the mode for fixing the compensation in case of dispute regarding the sufficiency of the compensation. 27. In the light of the non-obstante clause in S.42, excluding in categoric terms the applicability of Sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910, in any considered opinion, it is not open to the petitioners to rely on S.12 of the Indian Electricity Act, 1910. As stated above, the petitioners strongly relied on the decision reported in 1959 (II) MLJ 446. In that case, Basheer Ahmed Sayeed, J., was pleased to deal only with the scope of S.12. The scope of S.42 was apparently not brought to the notice of the learned Judge. Therefore, the petitioners herein cannot call in aid the said decision. 28. It was argued by Mr.A.Venkatesan, learned counsel for the petitioners, that the learned Judge had observed in the above decision that only apparatus and appliances to be placed and high tension wire cannot at all be used or put up. The petitioners cannot rely upon the observations made by the learned Judge. Provisions of S.42 are very clear and at the end of the 20th century, it is no longer open to anybody to contend the high tension towers cannot be put up." (iii) AIR 1995 Kerala 1, A.M.Ismail and others etc., vs. Union of India and others : "8. On a survey of these authorities, it is clear that the District Magistrate is discharging an administrative function and the general principle of natural justice and other procedural regulations would apply. The contention of the https://hcservices.ecourts.gov.in/hcservices/ petitioners that the District Magistrate is given unlimited power and, therefore, the said provision is illegal cannot be accepted. The District Magistrate hears objectors and consider whether the objections raised by the property owners are reasonable. If the District Magistrate is of the view that it is not proper to draw line through the objections' property he shall decline permission to draw line through their property. If, on the other hand, the District Magistrate, finds that the objectors are raising frivolous objectors, the District Magistrate is competent to rule out such objections and direct the authorities to draw the proposed line. Therefore, I do not find that Section 16(1) of the Indian Telegraph Act, 1885 is in any way violative of Article 14 of the Constitution. 10. Coming to the facts of the cases, petitioners' objection is that there are alternate lines and this was not considered by the District Magistrate. It may be noticed that this line was proposed in