IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24-11-2011 CORAM THE HON'BLE MR.JUSTICE N.PAUAL VASANTHAKUMAR W.P.No.21360 of 2011 M.P.No.1 of 2011 Indian Syntans Investments Pvt. Ltd., New No.12 (Old No.71), III Main Road, Kasturiba Nagar, Adyar, Chennai- 600 020, rep.by its Manager Mr.A.Govidaraj ... Petitioner Vs. 1. The Power Grid Corporation of India Ltd., 400/230 KV Sub Station, Ramanathapuram Village, Thondamanatham Main Road, Puducherry – 605 502 2. The Supervisor/Engineer, Power Grid, Puducherry Electricity Department, Puducherry ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India praying to issue a writ of mandamus directing the respondents to remove the construction and skeleton of tower for 110 KV High Tension Tower set up by the respondents in the petitioner's lands in Survey Nos.48, 49 and 50 in Thuthipattu Village, Villianur Taluk, Puducherry that too behind the back of the petitioner in February, 2011, not in consonance with the procedure contemplated under Indian Telegraph Act and the Works Licensees Rules, 2006 and consequently, forbearing the respondents, their men, agents or their subordinates from in any manner interfering with the petitioner's peaceful possession of the land located in Survey Nos.48, 49 and 50 located in Thuthipattu Village, Villianur Taluk, Puducherry. For Petitioner : Mr.R.Gandhi, Sr.Counsel for Mr.R.G.Narendhiran For 1st Respondent: Mr.Jayesh B.Dolia for M/s.Aiyar & Dolia https://hcservices.ecourts.gov.in/hcservices/ For 2nd Respondent: Mr.D.Sreenivasan, Government Pleader (Puducherry) O R D E R The prayer in the writ petition is to issue a writ of mandamus directing the respondents to remove the construction and skeleton for 110 KV High Tension Tower set up by the respondents in the petitioner's lands in Survey Nos.48, 49 and 50 in Thuthipattu Village, Villianur Taluk, Puducherry, that too behind the back of the petitioner in February, 2011, not in consonance with the procedure contemplated under the Indian Telegraph Act, 1885 and the Works Licensees Rules, 2006 and consequently, forbear the respondents, their men, agents or their subordinates from in any manner interfering with the petitioner's peaceful possession of the land located in Survey Nos.48, 49 and 50 located in Thuthipattu Village, Villianur Taluk, Puducherry. 2. It is the case of the petitioner Company that the petitioner is a limited company running a chemical factory in Madurai under the name and style of M/s.Indian Syntans Limited, and for the purpose of setting up a factory in Puducherry, it has purchased the land to an extent of 16 acres in Survey Nos.48, 49 and 50 in Thuthipatti Village, Villianur Taluk, Puducherry, vide sale deed dated 31.5.1995. Petitioner has wire fenced the land and it is in possession and enjoyment of the land and it has appointed a care- taker for the property. According to the petitioner, on 2.2.2011 some people trespassed into the petitioner's land illegally by removing the fence and started digging the land for some illegal construction, pursuant to which the petitioner gave a complaint before the police on 4.2.2011. Later on, petitioner came to know that the trespassers are from the office of the respondents. A further complaint was given on 9.2.2011. For the application submitted on 7.2.2011 under the RTI Act, no reply was received and on 2.5.2011, the Executive Engineer sent a copy of G.O.Ms.No.5 dated 8.3.2007 and informed the petitioner that no route map of line originally sanctioned is available and that the exact position of the towers is not available. The second respondent issued a notice on 31.1.2011 stating that no objection has been received from the owner, despite the notice issued under the Indian Telegraph Act, 1885 informing the petitioner that 110 KV electric transmission line will be drawn through the petitioner's land and due care will be taken to minimise the damage to the standing trees. According to the petitioner, no notice was issued giving opportunity to the petitioner to object the setting up and drawing of HT lines. In spite of issue of notice of objection dated 12.2.2011, no action being taken, petitioner has filed this writ petition with the above said prayer. https://hcservices.ecourts.gov.in/hcservices/ 3. The writ petition is opposed by the first respondent by filing counter affidavit contending as follows: (a) The respondent Corporation is a Government of India Enterprise, created with a view to develop an efficient Power Transmission System network throughout the country and establish the National Power Grid in the country. It is a Deemed Transmission Licensee in the capacity of Central Transmission Utility as envisaged under sections 38 and 40 of the Electricity Act, 2003. (b) The Government of India issued a notification on 27.11.2003 which was published in the Gazette of India No.1084 dated 4.12.2003. The Government of India, in terms of Section 164 of the Electricity Act, 2003 had passed an order on 23.12.2003 vide Gazette of India No.1148 authorising the respondent's Power Grid Corporation to exercise all the powers vested in the Telegraph Authority under Part- III of the Indian Telegraph Act, 1885 in respect of electrical lines and electrical plants established or maintained or to be so established or maintained for transmission of electricity or for the purpose of telephonic or telegraphic communication necessary for the proper co-ordination of the works. Part-III relates to power to place telegraph lines and posts. (c) Under Section 10 of the Act, the telegraph authority may from time to time, place and maintain telegraph lines under, over, along or across and posts in or upon any immovable property, provided that the Central Government shall not acquire any right other than that of "user only" in the property under, over, along or across, in or upon, which the Telegraph Authority places any telegraph lone or post. Section 11 empowers examining, repairing, altering or moving any telegraph line or post, to enter on the property and for exercising the said power, the respondent Corporation need not acquire any right other than that of the user. Under sub-section (2) of Section 67 of the Electricity Act, 2003, the Rules as Works of Licensees Rules, 2006 was framed and Rule 3 relates to consent which only states that if the petitioner objected a hearing should be given. (d) Here in this case, only on 2.2.2011 petitioner objected about the erection of the tower in location No.5/0, which is preceding to the petitioner's land and erection of a tower in location No.6/1 and the work has already been completed. (e) It is also stated in the counter affidavit that on 2.3.2011 the second respondent replied to the RTI application and stated that the details relating to the project can be obtained from the first respondent, however no information was sought for from the first respondent and the petitioner kept quiet for four months and filed this writ petition. The respondents have completed the work of erection of 24 towers out of 25 towers. The foundation work was completed as early as on 29.6.2010. The petitioner did not object to https://hcservices.ecourts.gov.in/hcservices/ the same at the earliest point of time and the work is now almost completed. (f) Section 10 of the Indian Telegraphs Act, 1885 do not contemplate issuance of notice to the land owner for laying any transmission line or tower and the respondent is empowered to enter upon anybody's land. If anybody raise objection in laying foundation, opportunity of hearing should be given and not otherwise. Here the foundation work having been completed in petitioner's land on 29.6.2010 itself, the objection raised in February, 2011 cannot be treated as a valid objection, especially when the project is almost completed in a stretch measuring 5.089 kms. (g) The said project is proposed for evacuating power from newly erected 230/110 kv sub-station at Thuthipattu as the Villianur and Bahur 110 kv sub-stations have been overloaded and if the project is not completed, the Union Territory will face severe power crisis. 4. The second respondent filed separate counter affidavit contending that foundation was laid by the first respondent in petitioner's land on 29.6.2010 and the tower erection upto 10 mtrs has been completed. It is also stated that the allegation that the entire land of 16 acres will be of no use, is baseless allegation and the mala fide alleged is also denied. 5. The learned Senior Counsel for the petitioner submitted that the petitioner having raised objection, the same is bound to be considered under Section 16 of the Indian Telegraph Act, 1885 as there is resistance and the matter has to be referred to the District Magistrate (Executive Magistrate) and the respondents may be directed to refer the matter before the District Magistrate, so that the respondents will be in a position to choose alternative mode of drawing lines by erecting new towers. The learned Senior Counsel also cited certain decisions of this Court and other High Court in support of his submissions. 6. The learned counsel for the first respondent on the other hand submitted that the petitioner having not raised any objection when the foundation work was completed as early as on 29.6.2010, is not entitled to now contend that the respondents illegally set up the foundation for erection of tower and it is an admitted case that only in February, 2011 for the first time objection has been raised, that too before the police. Learned counsel also submitted that the erection of towers are almost over as 24 out of 25 towers have been already erected in the approved scheme, the petitioner has no right to raise objection at this distance of time and the said objection is not maintainable. The said stand of the first respondent is also supported by the learned Government Pleader (Puducherry) appearing for the second respondent. https://hcservices.ecourts.gov.in/hcservices/ 7. I have considered the rival submissions of the learned Senior Counsel for the petitioner as well as respective learned counsel for the respondents. 8. The point arises for consideration in this writ petition is as to whether the writ petition filed to remove the construction of skeleton of tower for erecting 110 kv HT tower set up by the respondents in the petitioner's land can be allowed at this point of time. 9. In the affidavit filed in support of the writ petition, the petitioner has clearly admitted that after purchasing 16 acres of land in Thuthipatti village, Villianur Taluk, Puducherry, by sale deed dated 31.5.1995, petitioner has wire fenced the land and appointed a care-taker for the property. The care-taker is an agent of the petitioner. It is the consistent case of the petitioner that the respondent Corporation is empowered to place and maintain transmission lines and for placing the transmission lines, the respondent Corporation will not acquire any right other than that of the user. 10. The second respondent proposed to establish a new sub- station 230/110 kv at Thuthipatti connecting Thettambakkam, Thirubuvanai, Sedurapet and Kurumbapet for reducing the overload and for distributing the existing load and for that purpose, the second respondent entrusted the task of construction of LILO (Loop In and Loop Out) of 110 kv line between Thettampakkam and Thirubuvanai to the first respondent Corporation and the anticipated land length is 6.47 kms with 25 towers. The work commenced during the month of June, 2008 and out of the 25 towers, erection of towers numbering 24 have already been completed and out of 6.47 kms, in 5.089 kms stringing of conductors have already been completed. Location No.6/0 is coming within the petitioner's land and portion of tower measuring 10 mtrs have already been erected and the balance tower of 15 mtrs has to be erected, for which also foundation work was completed as early as on 29.6.2010 and no objection was ever made by the care- taker/agent of the petitioner Company. 11. Section 16 of the Indian Telegraph Act, 1885 provides a mechanism if there is obstruction or resistance. The said wordings viz., "obstruction/resistance" can be considered only if objection is raised at the time of carrying on the work and not after completion of almost all the work. 12. The Division Bench of this Court in the decision reported in 2011 (4) LW 924 (C. Ram Prakash & Another v. Power Grid Corporation of India Ltd. & Another) considered similar issue and in paragraph 23 held thus, https://hcservices.ecourts.gov.in/hcservices/ "23. Section 16 of the Indian Telegraph Act provides for a mechanism by which the respondent No.1 can approach the second respondent, if there is an obstruction or resistance. It is not necessary that in each and every case the respondent No.1 will have to approach the second respondent whenever there is an objection. The word objection has got a different connotation than the words resistance or obstruction. A resistance or obstruction would mean preventing the statutory body from carrying out the public duty. Whereas an objection is merely a form of protest. Further, under Section 16 of the Indian Telegraph Act, the respondent No.2 has got no power to go into the merits of the case and find out as to whether the alignment proposed is correct or not and there is any possibility of realignment. The prescription of Section 16 of the Indian Telegraph Act is very specific to provide aid to the respondent No.1 to perform its statutory duty. Considering the scope of Section 10 of the Indian Telegraph Act vis-a-vis Section 16 of the Indian Telegraph Act, it has been held by the Division Bench of the Delhi High Court in Scindia Potteries v. Purolator India Ltd., AIR 1980 Delhi 157 as follows: "9. .. The exercise of power under Section 10 is not conditional on compliance with the provisions of Section 16(1) of the Act. The power given under Sec.10 is absolute. It is only when there is a resistance or obstruction in the exercise of that power that the occasion to approach the District Magistrate arises. If there is no resistance or obstruction, there is no occasion for telegraph authority to approach the District Magistrate. The alleged oral protest relied upon by the appellant appears to us to be a made up story. Two telegraph poles were affixed on the appellants' property in February, 1974. The telephone lines and connections were thereafter given from time to time. Till the landlord-tenant dispute arose between the appellant and M/s.Purolator India Ltd., no objection was raised by the appellant. No doubt in April, 1978 the appellant gave notice to the telegraph authority under Sections 17 and 19A of the Act and may be that the telephone connections in May, 1978 can be treated as the ones objected to but then Sections 17 and 19A have a different purport. The https://hcservices.ecourts.gov.in/hcservices/ resistance and obstruction envisaged by Section 16 (a) of the Act is different. This will be clear on a reading of sub-section (1) of section 16 of the Act. It is for the purpose of Section 188 I.P.C. that an application is to be given under Section 16(1) of the Act to the District Magistrate. Section 188 I.P.C. makes the disobedience of an order duly promulgated by the public servant an offence. Section 16 is really in aid of the discharge of statutory duty and exercise of statutory power postulated by Section 10." We are in respectful agreement with the ratio laid down therein." The Division Bench affirmed the order of the learned single Judge and dismissed the writ petition filed, raising similar objections. 13. The order in W.P.No.49172 of 2006, etc., dated 18.1.2007 relied on is in the cases filed for forbearing the respondent from erecting any pillar or post over the property. In this case the prayer is to remove the construction of skeleton towers, which were put up without objection. Hence the said order is clearly distinguishable. In none of the cases cited by the learned Senior Counsel, direction was issued to remove the construction of tower already put up/set up and the objections were raised before the construction of the tower/pillar. 14. Here in this case, the petitioner having not raised objection or resistance when the foundation was constructed for erecting the towers in June, 2010, and the work is nearing completion, at this point of time the petitioner cannot pray for directing the respondents to remove the construction and skeleton of the towers, which is going across petitioner's land. The writ petition is dismissed. No costs. Connected miscellaneous petition is also dismissed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar Vr https://hcservices.ecourts.gov.in/hcservices/ To 1. The Power Grid Corporation of India Ltd., 400/230 KV Sub Station, Ramanathapuram Village, Thondamanatham Main Road, Puducherry – 605 502 2. The Supervisor/Engineer, Power Grid, Puducherry Electricity Department, Puducherry 1 cc to Mr.R.G.Narendhiran, Advocate, Sr.No.72094 1 cc to M/s.Aiyar & Dolia, Advocate, Sr.No.72482 1 cc to Sr.Government Pleader,(Pondicherry) Sr.No.72540 Order in W.P.NO.21360 of 2011 EK {CO} TP/30.11.2011. https://hcservices.ecourts.gov.in/hcservices/