IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04-04-2008 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN WRIT PETITION No.21533 of 2007 T. Narayanan ... Petitioner vs. 1.The District Executive Magistrate-cum- District Collector, Kancheepuram District, Kancheepuram. 2.Power Grid Corporation of India Limited 69, State Bank Colony West Tambaram Chennai – 600 045 represented by its Chief Manager... Respondents Petition under Article 226 of the Constitution of India, praying for issuance of a writ of certiorarified mandamus. For petitioner : Mr.AR.L.Sundaresan, Senior Counsel, for Mrs.AL.Ganthimathi. For respondent 1: Mr.L.S.M.Hasan Fizal, Govt.Advocate. For respondent 2: Mr.Jayesh Dolia, for M/s.Aiyar & Dolia. O R D E R This Writ Petition has been filed, praying for issuance of a writ of certiorarified mandamus, to call for the records of the first respondent relating to his order in D.Dis.No.15 of 2007 dated 23.05.2007, quash the same and consequently forbear the second respondent from erecting any pillar or post for the purpose of transmission of high tension power over the lands in S.Nos.58/1, 2 and 3, 60/2 to 6, 61/1 to 5, 63/2, 64 to 68, 69/1, 2 and 3 and 70/1 and 2, 77/1A, 78, 79, 80/1 and 2 and 155/1 and 2 of an extent of 22.04 acres and S.Nos.86, 97/1 and 2, 100, 101, 103 https://hcservices.ecourts.gov.in/hcservices/ to 106, 107/1, 2 and 3, 108, 118/1, 2 and 3, 119, 120/1 and 4, 121/1, 124, 125/1 and 2, 126, 127, 128/2, 129, 130, 142/1 and 2, 144 Part, 146, 147/1 to 5, 148/1 to 4 of an extent of 23.88. ½ acres in 79, Gudalur Village within Maraimalai Nagar Town Panchayat, Chingleput Taluk, Kancheepuram District. 2. According to the petitioner, he is a businessman engaged in developing layouts of house sites by acquiring various parcels of land from various owners, making them contiguous and forming layouts consisting of several housing plots after providing open space, public roads, culverts, etc. and selling the same to various persons desirous of purchasing house sites. While so, he developed a layout of house sites over an extent of 23.88.1/2 acres of land in various survey nos. of Gudalur Vilalge, Chingelput Taluk, Kancheepuram District falling within the Maraimalai Nagar Town Panchayat and submitted necessary applications to the Maraimalai Nagar Town Panchayat which was duly approved under proceedings dated 02.05.2007. He remitted a sum of Rs.24,60,000/- towards approval charges and developmental charges and the layout plan was approved vide a resolution dated 30.04.2007. The petitioner started selling house plots to various persons and still holds several plots readily available for sale and he is responsible to ensure that the various purchasers of the respective plots derive full benefit out of their purchase and that they are not deprived of any of their rights by any action by any person against the title and possession of the property. That being the position, some pits were dug in his lands by the agents of second respondent Corporation and hence, he was was constrained to file a writ petition in W.P. No.49172 of 2006 seeking a writ of mandamus which was disposed of in the following terms: “..The Power Grid Corporation shall, as early as it deems fit, approach the District Magistrate concerned in each case for permission to deal with the objections raised by the petitioners in each case and the said District Magistrate shall consider the objections and pass orders in accordance with the provisions which have been extracted above.” 3. Pursuant to the said order, based on a requisition letter dated 25.01.2007 from the Chief Manager of the second respondent, the first respondent, by a notice dated 05.02.2007, called upon the petitioner to appear before him on 19.02.2007 to put forth his objections, in respect of exercise of powers of Telegraph authority under Section 16(1) of the Indian Telegraph Act, 1885. Accordingly, the petitioner submitted his explanation stating that if the power line towers are erected in the approved layout, it will severely affect various purchasers and himself as there are several unsold plots and since 40 ft. on both sides of the power line has to be kept vacant, 700 x 33 metres of land will be https://hcservices.ecourts.gov.in/hcservices/ rendered useless. Subsequently, though the relevant sale deeds and layout approvals were submitted for consideration of the first respondent, by proceedings dated 23.05.2007, the first respondent overruled the petitioner’s objections stating that his reasons are purely out of commercial interest and the proposed park area has no commercial value to him as a promoter and that the alignment suggested by him was not technically feasible. Aggrieved over the said order, this Writ Petition has been filed on the grounds that: a. the impugned order of the first respondent permitting the second respondent to carry out the work of erecting high tension power lines through the lands of the petitioner as per Section 16(1) and (2) of the Indian Telegraph Act, is arbitrary, illegal, unjust and unsustainable in law. b. the first respondent failed to consider the materials produced by the petitioner and has not assigned any reason as to why the change in the alignments could not be resorted to and has also failed to exercise his jurisdiction and power. c. the impugned order of the first respondent remains silent as to the report and documents submitted by the Tahsildar of Chingleput Taluk and the Village Administrative Officer of Gudalur Village who had submitted that enough poramboke and Government vacant lands are available and the project could be executed without disturbing private properties and the change in the alignment through such poramboke and Government lands is feasible, and d. the failure to determine the compensation also vitiates the passing of the impugned order. 4. The first respondent/District Collector has filed a counter, stating that the omission to state and give particulars in W.P.No.49172 of 2006 about the proposed transmission lines being sought to be carried through the said lands cannot be by mistake and due to petitioner's lack of knowledge; the petitioner was not ignorant of the fact that power transmission lines have been proposed through the lands; however, suppressing this fact the petitioner had sought for and obtained approval of the lay- out; the petitioner, knowing fully well about the consequences of the proposed power transmission lines through the lands, had proposed and laid the layout plots; pursuant to the orders of the Court in W.P.No.49172 of 2006, the first respondent issued notice, heard the petitioner's objections, considered the same and passed the order, dated 23.05.2007, permitting the Corporation to carry out the work; as such, the Corporation has been carrying out the https://hcservices.ecourts.gov.in/hcservices/ work of transmission power line and, hence, the petitioner is not entitled to make any complaint, as the provisions of the Act have been duly complied with. 5. It is also stated in the counter that the petitioner and the officials of the second respondent were heard and the order was passed by the first respondent, rejecting the objections raised by the objector, keeping in mind the fact that the said transmission of electricity was an essential service and for the reason that the alignment as suggested by the objector was not technically feasible. Further, various modalities, ways and means were considered and thereafter it was found that it was not technically feasible to change the proposed alignment. The first respondent considered all the aspects of the matter before passing the order, granting permission to the second respondent to proceed with the proposed erection of electric transmission towers. The petitioner is entitled to any quantum of compensation, if at all the immovable property is damaged, that too the issue of paying compensation and receiving it is between the petitioner and the Telegraph Authority viz., Power Grid Corporation, as per the provisions of Section 16 (3) read with Section 10 (d). The contention of the petitioner that the first respondent is the authority to decide compensation is quite incorrect and irrelevant. The order is passed in public interest and the same is not liable to be stayed or set aside. 6. The further case of the District Collector is that he had perused the records and written statement filed by both the land owners and the officials of Power Grid Corporation of India Limited and enquired them on 19.02.2007 and had discussions with the officials of Power Grid Corporation and the land owners. Hence, the order passed by the first respondent is not vitiated by any infirmity and it is legally and constitutionally valid and maintainable and, as such, the Writ Petition is liable to be dismissed. 7. The second respondent Corporation has filed a counter, stating as follows: (a) It is the Central Transmission Utility under the Ministry of Power and has been entrusted with the construction of Sriperambudur to Kalivanthapattu 400 KV D/C Power Transmission Line comprising 94 Towers with a length of 30.673 kms. at a total cost of Rs.588.25 crores; the scheme is duly approved by Government of India to provide quality power at large with greater reliability particularly to the agricultural/residential/commercial establishments for the State of Tamil Nadu in general and South Chennai in particular and will be a big boost to the industrial and agricultural growth in the State and it is executing the https://hcservices.ecourts.gov.in/hcservices/ project after observing all legal procedures and as per the existing provisions under the Electricity Act, Sections 10 to 19 of the Indian Telegraph Act, 1885, Indian Electricity Rules, 1956 and the Woks of Licensees Rules, 2006. (b) Sriperambudur to Kalivanthapattu 400 KV D/C Power Transmission Line is of 30.673 kms. length and has 94 towers in the entire section against which foundation work has been completed at 72 locations and 18 towers have been erected and the erection of balance towers is in progress and the project is expected to the completed and commissioned by September 2007 as per schedule. (c) While fixing the transmission line route, only 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. (d) Since the transmission line requires a clear corridor of 48 metres only i.e. 24 metres on either side from the centre of the transmission line, all crops can be cultivated and the fruit-bearing trees of short height can be grown and building put up by maintaining sufficient safety electric clearance as per the Electricity Rules, 1956. (e) The transmission line 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 Indian Electricity Rules, 1956. (f) The laying of tower in the land will not render the land unusable as alleged and such a statement is made only with a view to mislead this Court inasmuch as it does not require the land but for erection of towers. (g) Once the order is passed by the first respondent/District Collector under Section 16 (1) of the Indian Telegraph Act, permitting this respondent to carry out the work for laying of tower lines in the petitioners property as per Section 16 (2) of the Act, the petitioner has to provide all assistance to this respondent for carrying out the works and if any objection is made by the petitioner, it will amount to an offence under Section 188 of the Indian Penal Code and the petitioner can be prosecuted for the same. https://hcservices.ecourts.gov.in/hcservices/ (h) The second respondent is implementing the project of the Central Government and the same is for the benefit of the general public at large including the petitioner in the long run and that the interest of general public is of utmost importance than the interest of a particular individual. 8. Mr.AR.L.Sundaresan, learned Senior Counsel for the petitioner, has contended that the first respondent went wrong in passing a non-speaking order by simply recording the contentions of the respective parties and not recording the reasons for rejecting the objections of the petitioners and he ought to have considered the objections of the petitioners that the erection of Towers in the land belonging to the petitioner would make the entire land measuring an extent of 23.88 acres unusable for construction of houses. It is the further contention of the learned Senior Counsel that the first respondent ought to have seen that as per sub rule 2 of Rule 3 of the Works of Licensee Rules 2006, he has to fix the compensation or annual rent or both, which should in his opinion be paid by the licensee to the owner or occupier, but he has not fixed the amount of compensation or annual rent as mandated by the provisions of the Works of Licensee Rules 2006; the first respondent also went wrong in not considering the objection of the petitioner that the proposed power line be diverted through the other poramboke lands available immediately next to the layouts and by overruling the said objection, the first respondent, without assigning any reasons, permitted the second respondent to carry out the work of erecting high tension power lines through the petitioner's lands, which is arbitrary, illegal, unjust and unsustainable in law and, therefore, the order passed by the first respondent cannot be sustained and the same is liable to be quashed. 9. 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 https://hcservices.ecourts.gov.in/hcservices/ 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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) 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 https://hcservices.ecourts.gov.in/hcservices/ 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: (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 https://hcservices.ecourts.gov.in/hcservices/ 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." 10. Per contra, Mr.Hasan Fazal, learned Government Advocate, appearing for the first 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 petitioner independently and passed an order under Section 16 (1) of the Indian Telegraph Act,1885, overruling the objections of the petitioners, stating that the objections of the petitioner are purely based on commercial interests and thus permitting the Corporation to take the power line through the land owned by the petitioner. The learned Government Advocate strengthened his submissions on "eminent domain", pointing out that 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 orders passed by the District Collector and the same cannot be interfered with. 11. 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 72 locations and 18 towers have been erected and the erection of balance towers is in progress and it is a time bound project to be completed and commissioned by September,2007 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 https://hcservices.ecourts.gov.in/hcservices/ 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. Also, according to the learned counsel, 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