^p^- .-^ a. HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (Cl N0. 1909 OF 2007 PETITIONER Century Textiles & Industries Ltd. VERSUS RESPONDENTS The Power Grid Corporation of India Limited and others POST FOR ORDER ON ll -3-2008 Sd/- Dhirednra Mishra Judge HIGH COURT OF CHHATriSGARH AT BILASPUR WRIT PETITION (Cl N0. 1909 OF 2007 PETITIONER Century Textiles 8s Industries Ltd. (A Company incorporated and registered under Indian Companies Act, 1956) Proprietor, Century Textiles 8s Industries Ltd., Registered office at Century Bhawan, Dr. Annie Besent Road, Mumbai 400 025 Local Office : Century Cement at Baikunth, Tahsil Tilda, District Raipur (CG) VERSUS i, f-.~ RESPONDENTS 1 The Power Grid Corporation of India Limited through: Its Principal Officer, Deputy General Manager, Sub-Station Grid, G.E. Road, Kumhari, Distt. Durg (CG) State of Chhattisgarh through: Secretary Mineral Resources Department, D.K.S. Bhawan, Mantralaya, Raipur, District Raipur (CG) District Collector, (Mining Section) Raipur, District Raipur (CG) Tahsildar, Tahsil Tilda, Distt. Raipur (CG) \ I frl-.. SB: HON'BLE SHRI DHIRENDRA MISHRA, J Present: Shri Gautam Bhaduri, Advocate for the petitioner. Shri P.S. Koshy, Advocate for the respondent No. 1. Shri S. Bajaj, Govt. Advocate for respondent No. 2 to 4. ORDER (Passedon 1L/3/2008) Dhirendra Mishra, J Briefly stated the case of the petitioner is that the petitioner is engaged in manufacture of cenient having c ^;\''% 8 ^^S'Si 'y's their ceinent manufacturing unit at Baikunth. The Company also excavates minerals - lime stone which is used for manufacturing cement. They were already holding mining lease in the vicinity and were paying revenue to the State. They submitted mining plan duly approved by the Indian Bureau of Mines (For short, hereinafter referred to as <IBM>), Government of India with fhe State for mming lease of 74.843 hectares at village Tulsi and Bahesar for a period of 30 years which was sanctioned to them vide Ex. P-3 and accordingly registered lease deed was executed. Khasra map showing the area was annexed with the lease deed. They further submitted an application for modification of mining plan to IBM and the modified plan was also approved vide Ex. P-6. 2. In the month of Septeinber, 2006, they leamt about the proposal of the respondent No. 1 of erection of high tension line and towers in the mining area of the petitioner. The respondent No. 1 proposed three towers in the inining area as also adjacent area to the mining area. If the proposed high tension electricity line and towers are erected, fhe petitioner shall have to stop mining in area nearby towers as also under the high tension line and they will not be able to carry out raining operations under the provisions of lease deed^ y The respondent No. 1 conimenced the work of erection of power line which was objected to by the petitioner whereupon the respondent No. 1 served notice under Section 68 and 164 read with Indian Telegraph Act Part III and Indian Electricity Rules, 1956 informing that the respondent No. 1 is going to excavate the lease hold land of the petitioner company for erection of towers for line No. 29/2 DA+0 for high tension line (Annexure P- 10). 3. The petitioner submitted objection of Annexure P- 11 and Annexure P-12 that if the towers are allowed to be erected in the mining lease within mineral boundary of the petitioner, the company will not be able to carry out mining over the adjacent area of towers of 500 meters unless permitted by the concemed authority in view of the circulars issued from time to time under the Metalliferous Mines Regulations, 1961 (Annexure P-13). Mining area carries reserves of 10 million tones of lime stone. If the petitioner is not allowed to run the mining due to erection of towers and power line, lime stone worth 3 million tones or more wUl be rendered useless which in tum curtail the supply of minerals to the cement factory and the life of the factory shall reduce by more than 3 years which may cause irreparable loss to the petitioner company. The respondent No. 1 which is a public sector company may also be required to make payment of compensation. 4. With the aforesaid averment the petitioner has prayed for direction to the respondent No. 1 not to erect any tower over mining lease area and reallocate its line by placing its towers out side the mining area of the petitioner company. 5. The respondent No. 1 in their counter affidavit has denied the averments of the petition and has stated that natiire of relief claimed in the writ petition is beyond the scope of writ jurisdiction under Article 226/227 of the Constitution of India. The respondent No. 1 is a Central Transmission Utility of the country. They undertake transmission of electric power through Inter-State Transmission System to establish and operate Regional and National Power Grids. Seepat Generation scheme is to come up and surplus power of Eastern Region would be pooled through 400 KV Seepat-Raipur Transmission line for dispersal of surplus generation of power in Western Region. Length of the above corridor is 148 kms. and estimated cost ofthe project is Rs. 199 crores. Eighty five percent of the work has already completed with an investment ofRs. 170 crores. Out of 400 towers to be erected, 390 towers have already been erected. The fower line under construction runs parallel to the 400 *5 te ^s!79 !i ' <^'*'°sl(, ~'% /y ^'. ~:>- ^ ^...- _.. ^ 1s -- "'s 'st. i%-^v, "^sy KV Korba-Raipur power line which is in existence since 1999. The petitioner has obtained lease hold right in the year 2002 and over and across their lease hold land, Korba-Raipur Transmission line already existed and even then, they could carry on their mining activities. They have obtained the lease hold rights without obtaining clearance certificate from the Electrical Inspector. The map submitted by the petitioner for obtaining mining lease was submitted withoUt showing the existence of 400 KV Korba-Raipur Transmission line established by Power Grid in the year 1999. The petitioners have their explosive magazine building in the same area and blasting near the magazine area is also prohibited. 6. The Government of India has authorized the Power Grid to exercise all the powers vested in the Telegraph Authority under Para III of Indian Telegraph Act, 1885 (For short, herein after referred to as 'Act of 1885') in respect of the electrical lines and electrical plant and in furtherance of the said authorization, the Power Grid exercises all the powers possessed by Telegraphic Authority. The Power Grid has no intention to stop mining, however no blasting is permissible within 300 meters from 400 KV line or the power structure. Mining of lime stone can be taken up by adopting the method •:?\ 'a other than the use of explosive/blasting without daraage to the tower foundation/tower structure or the line which can be accomplished by using jack hammer/pneumatic hammer with compressor so as to avoid £uiydarnage to the line or tower. The re-alignment of the route as proposed is not feasible as foundation of 406 towers have already been cast out of total 410 towers to be erected. Foundation activity has already been completed in the area except for two towers; 390 Nos. of towers have been erected out of 400; 400 KV/ D/C Sipat Raipur TL is paraUel to another 400 kv S/C Korba - Raipur TL of Power Grid which is in commercial operation since year 1999; diversion of fhe line is also not possible as the transmission line requires crossing of Hawrah - Mumbai electrified railway track and due approval has already been obtained from the Railways and accordingly, the transmission line has already been established by crossing the railway track which is hardly at a distance of 350 meters from the petitioners lease hold land; the transmission line is running parallel to another 400 KV Korba -Raipur Transmission Line for technical reasons for requisite clearance is required to be maintained between the two lines and that rules out further diversion of transmission line. Apart from the aforesaid field limitations, other ^, technical limitations as enumerated in paragraphs 5.16(B) ofthe petition are also there. 7. The petitioner in their rejoinder have stated that the existing line is outside the mineral boundaries of the lease hold area of the petitioner. The petitioner company submitted the map before IBM showing surplus features of lease area showing the existing H.T. line; the Explosive Magazine Building of the petitioner is to be shifted to the other lease hold area as proposed in future conceptual mining plan approved by IBM as the mining operations reaches near that area in future. The contention that mining operation can be done by employing other mode of excavation is based on lack of technical knowledge and know how of the mining as the jack hammer and pneumatic hammer are only made for digging hole which cannot be employed for production and excavation of minerals. 8. Shri Gautam Bhaduri, learned counsel for the petitioner, vehemently argued that the petitioner has obtained mining rights in the lease hold area after due approval from the IBM. The lime stone excavated from the area in question is to be used for the cement factory at Baikunth. If the respondent No. 1 erects the power transmission line as proposed through the mineral area and adjacent to the mineral area, the petitioner shall be deprived of excavating minerals from a large area resulting in stoppage of excavation of three milUon tones of lime stones. This, in turn, would result in closure of the cement factory 3-4 years before its schedule which would not only cause irreparable and immense loss to the petitioner company, but would also occasion national loss in terms of production of cement as also it would be detrimental to the interest of workers of the factory. It was further argued that notice of Annexure P- 10 purports to transmission line between Seepat-Raipur i.e. within the State of Chhattisgarh. The notice is allegedly issued under the purported exercise of power under Section 164 of the Act 2003 which is exercisable by the appropriate Govemment which is defined under Section 2(5) as the Central Government in case of Inter- State Treuismission and in case of Intra State Transrriission, the State Government. Since the transmission line is confined from Seepat to Raipur and, therefore, it is Intra-State transmission and there is no authorization from the State Government to the respondents under Section 164 of the Act of 2003. 9. Further referring to Section 68 of the Act of 2003, it was argued that no approval from the appropriate Govemment has been Eled by the respondent No. 1. It was further argued that Rule 3 of Works Licence Rules, ^v 2006 (for short, hereinafter referred to as 'Rules of 2006') makes it necessary that in order to carry out and lay down electricity line, permission of the occupant or the occupier of the land is necessary and in case, any objection is raised, the licensee should obtain permission in writing from the Distarict Magistrate or the Commissioner of Police or the authorized officer of the State Government. 10. Reliance is placedon The Patna Electric Suoolv Co. Ud. -v- The Patna Municipal Corporution^and others 1. 11. On the other hand, Shri P.S. Koshy, learned counsel appearing for the respondent No. 1, argued that in the entire petition, the petitioners have based their petition on equity and no legal ground whatsoever have been raised by the petitioner either in the petition or in the rejoinder fUed to the reply of respondent No. 1. Since the petitioner had not raised legal grounds that the respondent was not empowered for laying transmission line, as required by Section 164 of the Act of 2003, and that they did not have prior approval of the Government of India as required under Section 68 of the Act of 2003 and since there is no such pleading in the petition, the respondent No. 1 had no occasion for * AIR 1970SC 491 10 producing those circulars / orders along with their reply, however, the Power Grid as licensee has been authorized by notification, to perform the duties under Section 164 of the Act of 2003 and the Government of India has given prior approval to the Power Grid Corporation for installation of over head lines under fhe Western Regional System Strengthening Scheme-1. It was also argued that sub-rule 4 of Rule 3 of the Rules of 2006, specifically envisages that the said rule shall not apply to a licensee under Section 164 of the Act of 2003. Since the Power Grid Corporation is Centa-al Transmission Utility and a Government Company and a licensee under Section 164 and since they have prior approval from the Central Government for execution of said work of laying of lines and, therefore, the provisions of Rules of 2006 shall not be applicable to them. The respondent Corporation has been erapowered to cany out the work under the powers of Section 10 of the Act of 1885, which empowers the Telegraph Authority, from time to time, place and maintain a telegraph line under, over, along, or across and posts in or upon, any immovable property with only the right of usage. Reliance is placed in the matters of Raiak & others -v- National Therinal Power Corpn., Ltd. Indore^B anr.2, Superintending Engineer & others -v- 2AIR 1988 MP 172 11 <.:- Thangaprakasain3 and Jayantkumar Bhagubhai Patel and another -v- State of Gujarat and another4 and other judgments. 12. I have heard learned counsel for the parties. 13. The petitioner, during the course of oral arguments, has raised certain legal grounds in support of his contentions, though these grounds have not been taken by the petitioner in his petition nor in the rejoinder filed by the petitioner. The Erst legal ground argued by the petitioner is that in the notice of Annexure P-10 issued in purported exercise of power under Section 164 of the Act of 2003, it is mentioned that the transmission line is to be laid from Seepat to Raipiir i.e. within the State of Chhattisgarh and as such, it is a intra-State transmission system as defmed under Section 2(37) and thus appropriate Government would be State of Chhattisgarh as defined under Section 2(5), whereas authorization is by the Central Governinent. The above ground has not been taken by the petitioner, however, the respondent No. 1 in his counter affidavit has clearly mentioned in reply to para 5.3 of the petition that the Ministry of Power, . .^ 3AIR 1999 MADRAS 365 4AIR 2007 GUJARAT 32 12 c- Government of India by order dated 23-12-2003 has, in exercise of power conferred by section 164 of the Act of 2003, authorized the Power Grid Corporation, a Government Company, and licensee engaged in the business of inter-state transmission of electricity, to exercise all its power vested in "Telegraph Authority" under Part III of the Indian Telegraph Act, 1885 in respect of electric lines and electric plants, establish or maintain or to be so established or maintained for the transmission of Electricity or for the purpose of telephonic or telegraphic communication necessary for the coordination of the works. In the retum, it has also been mentioned that surplus power of Eastem Region would be pooled at Sipat for absorption in Western Region which consists of the States of Chhattisgarh, M.P., Maharashtra, Gujarat and Goa. For further dispersal of power to the beneficiaries in Westem Region, Sipat- Raipur transmission corridor of about 148 kms. needs to be strengthened, so that delivery of power can take place with reliability and security. Thus, from the averments of return filed by respondent No. 1, it is clear that Sipat- Raipur Transmission Line is associated with Western Region System Strengthening Scheme-1 and as such it is a inter-state transmission 13 line and the appropriate Govemment is Central Government. 14. Relevant provisions of law for the purpose of this petition are reproduced hereinbelow. 15. Section 164 of Electricity Act, 2003 is reproduced hereinbelow:- "164. Exercise of powers of Telegraph Authority in certain cases.- The Appropriate Government may, by order in writing, for fhe placing of electric lines or electrical plant for the transmission of electricity or for the purpose of telephonic or telegraphic communications necessary for the proper co-ordination of works, confer upon any public officer, licensee or any other person engaged in the business of supplying electricity under this Act, subject to such conditions and restrictions, if any, as the Appropriate Govemment may think fit to impose and to the provisions of the Indian Telegraph Act, 1985 (13 of 1885), any of the powers which the telegraph authority possesses under that Act with respect to the placing of telegraph lines and posts for fhe purposes of a telegraph established or maintained, by the Government or to be so established or maintained." Section 10 of Indian Telegraph Act is also reproduced hereinbelow:- 14 i'k "10. Power for telegraph authority to place and maintain telegraph lines and posts.- The telegraph authority may, from time to time, place and maintain a telegraph line under, over, along, or across, and posts in or upon, any immovable property:- Provided that- (a) xxx xxx (b) the Central Government shall not acquire any right other than that of user only in the property under, over, along, across, in or upon which the telegraph authority places any telegraph line or post; and (c) xxx xxx (d) xxx xxx" The Central Government, in exercise of power conferred by Clause (e) of sub-section (2) of Section 176 read with sub-section (2) of section 67 of the Electricity Act, 2003 (36 of 2003), made mles named The works of Licensees Rules, 2006' (hereinafter referred to as 'Rules of2006>) rule 3 ofthe above Rules reads as under:- "Licensee to carry out works.- (1) A licensee may- (a) carry out works, lay down or place any electric supply line or other works in, through, or against, any building, or on, over or under any land whereon, whereover or whereunder any electric supply-line or works has not already been lawfuUy laid down or 15 placed by such licensee, with the prior consent of the owner or occupier of any building or land; (b) Bx any support of overhead line or any stay or stnit required for the purpose of securing in position any support of any overhead Une on any building or land or having been so fixed, niay alter such support: Provided fhat in case where the owner or occupier of the building or land raises objections in respect of works to be carried out under this rule, the licensee shaU obtain permission in writing from the District Magistrate or the Commissioner of Police or any other officer authorized by fhe State Government in this behalf, for carrying out the works: Provided further that if at any time, the owner or occupier of any building or land on which any works have been carried out or any support of an overhead line, stay or strut has been fbced shows sufficient cause, the District Magistrate or the Commissioner of Police, or the officer authorized may by order in writing direct for any such works, support, stay or strut to be removed or altered. (2) When maldng an order under sub-rule (1), the District Magistrate or the Commissioner of Police or the officer so authorized, as the case may be, shall fbc, 16 after considering the representations of the concerned persons, if any, the amount of compensation or of annual rent, or of both, which should in his opinion be paid by the licensee to the owner or occupier. (3) Every order made by a District Magistrate or a Commissioner of Police or an authorized officer under sub-rule (1) shall be subject to revision by the Appropriate Commission. (4) Nofhing contained in this rule shall effect the powers conferred upon any licensee under section 164 ofthe Act." 16. It was argued that Section 51 of Electricity Act, 1910 is para materia to the provisions of Section 164 of the Act of 2003. In the matter of The Patna Electric Supply Co. Ltd.1, the Hon'ble Supreme Court while dealing with Section 51 of the Act of 1910 held that Section 51 does not by reference incorporate into the Indian Electricity Act, 2003 all the provisions of the Telegraph Act, 1885 and merely because some of the powers of Telegraphic Act, 1885 are conferred on the licensee, it does not foUow that all the rights and liabiUties of a licensee under the Electricity Act are governed by the provisions of the Telegraph Act. It was further argued that the provisions of taking consent of the occupier of the land should have been followed by the licensee. 17 In the above cited judgment, a demand was raised by the Municipal Corporation towards the fee for land occupied by the Electric Supply Company for fbcing poles on corporation land. The above demand was questioned by the Electric Supply Company under Article 226 of the Constitution of India. The High Court did not enter into merits and rejected the application on the sole ground that the proper remedy available to the petitioner was to move the Cenfaral Government under Section 15 of the Indian Telegraph Act, 1885. In that context, it was observed by the Hon'ble Supreme Court that only because some powers have been conferred by a section under Section 51 of the Electricity Act, 1910, it will not mean that all the provisions of the Telegraph Act have been incorporated into Electricity Act. 17. The High Court of JharkhEind at Ranchi in W.P.IC.l No. 993/2007 (Aiay Munial Memorial Trust andjothers -v- Power Grid Corooration of India Ltd. and others) vide order dated 8/7-5-2007 has held that in view ofthe scheme ofElectricity Act, 1910, Electricity (Supply) Act, 1948, Electricity Act, 2003, the Rules of 2006 and Section 10 of the Telegraph Act, prior consent of the petitioners/occupier of the land is not required for erecting transmission line in exercise of powers under Section 164 ofthe Act of2003. 18 18. In Rajak and others2, the Division Bench of High Court of Madhya Pradesh in para 15 of the judgment has held thus:- "In view of the power vested in the Generating Company NTPC under S. 42 of the Act read with Part III of the Indian Telegraph Act, there can be no valid objection by the petitioners to the implementation of the sanctioned scheme either on the principles of natural justice or on the ground of unauthorized user of petitioner's land in respect of which compensation has been provided for under proviso (d) to S. 10 of the Indian Telegraph Act." 19. In the matter of Superintending Engineer3 leamed Single Judge of Madras High Court, in para 6, has held that the Electricity (Supply) Act read with Sections 10 and 16 of the Act of 1963 recognizes the absolute power of the Electricity Board to proceed with the work of constructing concrete bases for installing high posts to draw high tension wires for supply of electricity over the field of an individual, subject to his right to claim damages, if proved. So long as the work is done by the Board in accordance with the sanctioned Scheme and in accordance with the provisions contained in the Act, it may not be within the framework of law to restrain them from doing so. By 19 granting an order of injunction, the Board cannot be prevented from doing an act which is recognized by a Statute. The action of the Board in the case on hand is in the larger interest of the public to have an undisturbed power supply. 20. In the matter of Jayantkumar Bhagubhai Patel4 the Gujarat High Court, while dealing with Sections 14, 154, 164 of the Electricity Act, has held that erection of tower and laying of overhead lines in agricultural land, the respondent authorities licensee have been conferred with powers of Telegraphic Authority' under Telegraph Act,