THE HON'BLE SRI JUSTICE N.V. RAMANA Writ Petition No.23743 of 2002 Dated: .2.2008 Between: K.Pandari Bai and 29 others .... PETITIONERS AND A.P.Transco, Represented by Managing Director, Somajiguda, Hyderabad and another. .....RESPONDENTS THE HON'BLE SRI JUSTICE N.V. RAMANA WRIT PETITION NO. 23743 of 2002 Order: In this writ petition the petitioners are aggrieved by the action of the respondents in not paying reasonable compensation for the lands occupied by them for the purpose of laying 400 K.V. D/C service supply lines by erecting towers and high voltage overhead power lines from Polavaram to Mandalapalli by removing the trees, crops, plantations etc., It is the case of the petitioners that because of the erection of the high-tension service line towers in their lands, they are deprived of cultivating their lands. Though the towers occupied a small portion of the lands, because of the prohibition not to cultivate the lands below the high voltage overhead power lines in width of 30 meters on either sides of the lines, the lands became redundant for ever as they could not use the same for raising or growing any plants whatsoever since the same is dangerous to their very lives. In the earlier round of litigation, the petitioners and some others filed W.P.No.17241 of 2002 before this Court to direct the respondents to pay the assessed compensation to them for laying the 400 KV D/C service/supply lines in their lands by removing the crops and trees etc., The said writ petition was closed pursuant to the proceedings of the respondent Corporation paying various amounts to the petitioners as compensation. The present writ petition is filed contending that the amount paid by the respondent Corporation in the earlier round of litigation is only towards the crops or the trees, which were removed or damaged while erecting the towers/lines and that they were not paid compensation for the lands, which became redundant because of the erection of the towers; that the Corporation has to pay the compensation towards the exact space occupied and also for maintaining safe distance all around the eight towers in an extent of Ac.0.25 cents for each tower; that for erection of the towers or laying of the lines, the Corporation has cut cashew trees, which yield for a period of not less than 50 to 70 years at the rate of minimum 30 kg. per year per tree and the compensation paid for such trees is too meagre. Apart from these, several other contentions are also raised stating that several fruit bearing trees were also cut for which no reasonable compensation was paid and because of laying of the high tension lines, some of the petitioners have to vacate their houses also. Thus, the petitioners seek compensation not only for the trees but also for the lands, which became useless because of the laying of the high-tension lines. The respondent-Corporation has filed a counter affidavit sworn by the Executive Engineer, 400 KV lines, Rajahmundry inter alia stating that petitioner Nos.4,5,8,9,17,20, 22 and 30 have no cause of action for filing the present writ petition as no damage was caused either to their trees or to the crops. Insofar as the other petitioners are concerned, it is stated that as per the guidelines issued by the Corporation, they have requested the Mandal Revenue Officer to assess the compensation by duly giving him all the details as to the number of trees cut and the crops damaged etc., and the Mandal Revenue Officer along with the Revenue Inspector inspected the area and assessed the value by taking into consideration the guidelines of NABARD and horticulture department. It is also stated that they have taken into consideration the value fixed by the respective Mandal Revenue Officers at the time of laying of 500 KV HVDC lines by the Power Grid Corporation of India Limited, adjacent to the present 400 KV in the year 2000. It is further stated that the land occupied by the towers is only Ac.0.02 cents and not Ac.0.25 cents as contended by the petitioners. Further, except Ac.0.02 cents where the tower legs are constructed, the rest of the area around the tower is suitable for cultivation and the formers, in fact, are raising crops like paddy, tobacco etc., and that they have also paid compensation for the thatched mud house belonging to one of the petitioners apart from paying compensation to the damage caused to the trees and that the trees which were cut down have also been handed over to the owners instead of realising the amounts by putting the same to public auction. The contention of the petitioners that they are prohibited to cultivate 30 meters on each side of the lines is also denied. Ms.Sumalini Reddy, learned counsel for the petitioners submits that either under the Indian Electricity Act, 1910 (for short ‘the Act’) or under the rules made thereunder or under the Indian Telegraph Act, 1885 (for short ‘the Telegraph Act’) there is no prohibition or bar to pay compensation towards the lands which are damaged or became not useful because of the laying of the high tension service lines or erection of towers and, therefore, the petitioners are entitled for the compensation for the lands since they lost their right to cultivate their lands due to the erection of the high tension service lines and for the enhanced compensation for the trees. Placing reliance on the decision reported in The Patna Electric Supply Co. Ltd. V. Patna Municipal Corporation[1] and the decision of the Jharkhand High Court reported in Md.Waris v. Union of India[2], the learned counsel for the petitioners contend that the petitioners are entitled to file either an OP before the District Judge seeking appropriate compensation or this Court under Article 226 of the Constitution of India can decide the quantum of compensation payable to the petitioners. Per contra, the learned standing counsel for the respondent Corporation submits that the respondent company is empowered to exercise the power of a telegraph authority under the Telegraph Act and Section 51 of the Act empowers the respondent company to this effect. Further, similar powers are conferred on the respondent company under Section 164 of the Indian Electricity Act, 2003, which repealed the Indian Electricity Act, 1910 and as per Sections 10 read with Section 16 of the Telegraph Act, if any person is aggrieved by the determination of the compensation, he has to approach the concerned District Judge by way of filing an OP. He has also placed reliance on the judgments of this Court reported in Sri Sai Surya Gardens Private Limited v. Union of India, Ministryof Energy[3]; B.Krishna Mandadi and others v. Power Grid Corporation of India Limited[4] in support of his contentions. In view of the above rival contentions, the only issue that arises for consideration in this writ petition is whether this Court under Article 226 of the Constitution of India can direct the respondents to pay the compensation for the lands of the petitioners to the extent they are occupied by the respondents for erecting the towers or for laying the service lines. At the outset, it may be necessary to notice the relevant provisions of law, under which the compensation can be claimed, viz., Section 42 of the Electricity Act and Sections 10 and 16 and also Section 34(3) of the Telegraph Act, which read as under: The Indian Electricity Act,1910 “SECTION 42 Powers to Board for placing wires, poles, etc:- (1) Notwithstanding anything contained in Secs. 12 to 16,18 and 19 of the Indian Electricity Act, 1910 (9 of 1910), but without prejudice to the requirements of Sec. 17 of that Act where provision in such behalf is made in a sanctioned scheme, the Board shall have, for the placing of any wires, poles, wall- brackets, stays apparatus and appliances for the transmission and distribution of electricity, or for the transmission of telegraphic or telephonic communications necessary for the proper co-ordination of the works of the Board, all the powers which the telegraph authority possesses under Part III of the Indian Telegraph Act, 1885 (13 of 1885) with regard to a telegraph established or maintained by the Government or to be so established or maintained : Provided that where a sanctioned scheme does not make such provision as aforesaid, all the provisions of Sections 12 to 19 of the first mentioned Act shall apply to the works of the Board. (2) A Generating Company may, for the placing of wires, poles, wall-brackets, stays apparatus and appliances for the transmission of electricity, or for the transmission of telegraphic or telephonic communications necessary for the proper co- ordination of the works of the Generating Company, exercise all or any of the powers which the Board may exercise under sub- section (1) and subject to the conditions referred to therein. The Indian Telegraph Act,1885 SECTION 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) the telegraph authority shall not exercise the powers conferred by this section except for the purposes of a telegraph established or maintained by the Central Government, or to be so established or maintained; (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) except as hereinafter provided, the telegraph authority shall not exercise those powers in respect of any property vested in or under the control or management of any local authority, without the permission of that authority; and (d) in the exercise of the powers conferred by this section, the telegraph authority shall do as little damage as possible, and, when it has exercised those powers in respect of any property other than that referred to in clause (c), shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers. SECTION 16 : Exercise of powers conferred by Section 10, and disputes as to compensation, in case of property other than that of a local authority:- (1) If the exercise of the powers mentioned in Section 10 in respect of property referred to in clause (d) of that section is resisted or obstructed, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them. (2) If, after the making of an order under subjection (1), any person resists the exercise of those powers, or, having control over the property, does not give all facilities for their being exercised, he shall be deemed to have committed an offence under Section 188 of the Indian Penal code, 1860(45 of 1860). (3) If any dispute arises concerning the sufficiency of the compensation to be paid under Section 10, clause (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him. (4) If any dispute arises as to the person entitled to receive compensation, or as to the proportions in which the persons interested are entitled to share in it, the telegraph authority may pay into the court of the District Judge such amount as he deems sufficient or, where all he disputing parties have in writing admitted the amount tendered to be sufficient or the amount has been determined under sub-section (3), the amount; and the District Judge, after giving notice to the parties and hearing such of them as desire to be heard, shall determine the persons entitled to receive the compensation or, as the case may be, the proportions in which the persons interested are entitled to share in it. (5) Every determination of a dispute by a District Judge under sub-section (3), or subjection (4) shall be final: Provided that nothing in this subsection shall affect the right of any person to recover by suit the whole or any part of any compensation paid by the telegraph authority, from the person who has received the same. SECTION 34 : Application of Act to Presidency-towns:- (1) and (2)………………… (3) The fee in respect of an application to the Chief Judge of a Presidency Court of Small Causes under sub- Section (3) of Section 16 shall be the same as would be payable under the Court-fees Act,1870 (7 of 1870), in respect of such an application to a District Judge beyond the limits of a Presidency-town, and fees for summonses and other processes in proceedings before the Chief Judge under sub-section (3) or sub-section (4) of that section shall be payable according to the scale set forth in the Fourth Schedule to the Presidency Small Causes Courts Act,1882 (15 of 1882). Section 42 of the Electricity Act contemplates that the Board for the placing of any wires, poles, wall brackets, stays apparatus and appliances of the transmission and distribution of electricity or for transmission of telegraphic and telephonic communication necessary for the proper coordination of the works, the Board shall have all powers which the Telegraph authority possesses under Part III of the Indian Telegraph Act,1885. Section 10(d) of the Telegraph Act contemplates that the telegraph authority shall do as little damage as possible and when it has exercised powers in respect of any property other than that referred to in clause (c), shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers. Section 16(3) of the Act contemplates that if any dispute arises concerning the sufficiency of compensation to be paid under Section 10(d), on application for that purpose by either of the disputing parties to the District Judge, within whose jurisdiction, the property is situated, shall determine the compensation. It is an admitted fact that the respondent Corporation has constructed transmission towers in the lands of the petitioners and also paid compensation for the damage caused to the trees or crops etc., in the earlier round of litigation and recording the same, W.P.No.17241 of 2002 filed by some of the petitioners herein and others was closed. In this writ petition, the petitioners contend that the amount paid by the respondent Corporation is only towards the trees which is too meager and that they were not paid any compensation for the lands occupied by the Corporation. The main contention of the respondent Corporation is that this Court under Article 226 of the Constitution of India cannot go into the question of determination of compensation. As already noted, Section 16(3) of the Act envisages that any dispute concerning the sufficiency of compensation to be paid under Section 10(d) shall lie before the District Judge within whose jurisdiction the property is situated. Therefore, the submission of the learned counsel for the petitioners that this Court can also determine the compensation under Article 226 of the Constitution of India has to be negatived. For determining the compensation, the Court must appreciate the evidence, both oral and documentary and some times even by physical inspection, which this Court under Article 226 of the Constitution of India cannot undertake. It is settled law that where a complicated question of fact is involved and the matter requires thorough proof on factual aspects, the High Court should not entertain the writ petition. Whether or not the High Court should exercise jurisdiction under Article 226 of the Constitution would largely depend upon the nature of dispute and if the dispute cannot be resolved without going into the factual controversy, the High Court should not entertain the writ petition. As noted above, the writ petition was primarily founded on the allegation that though the towers occupied small portion of the lands, because of the prohibition not to cultivate the lands below the high voltage overhead power lines in width of 30 meters on either sides of the lines, the lands became redundant for ever and on the other hand the respondents contend the petitioners are in fact cultivating the lands. The decision relied on by the learned counsel for the respondent in Surya Garden’s case (3 supra) to contend that the petitioners cannot question the laying of the towers has no relevance to the facts of the present case. In that case, a Division Bench of this Court held that as per Section 29(2) of the Electricity (Supply) Act, 1948, once the laying of lines scheme is notified and is approved, except making an application for compensation, the petitioners cannot object for the same and accordingly directed the petitioner therein to approach the authorities concerned for appropriate compensation. In the instant case, the respondent Corporation has already laid the lines and the only dispute is with regard to the quantum of compensation. As contended by the learned counsel for the respondent under Section 16(3) of the Telegraph Act, which was adopted by the respondent authorities, the appropriate forum for determination of compensation is the District court. The questions as to whether the respondents have really prohibited the petitioners for raising the crops in 30 meters width on either side of the lines and whether the amount of compensation already paid is adequate or not have to be determined basing on the evidence adduced by the parties. This Court under Article 226 of the Constitution of India cannot go into the issue of determining the compensation in view of Section 16(3) of the Telegraph Act, and the appropriate forum to deal with such issues is the District Court. Further this Court under Article 226 of the Constitution of India cannot go into the disputed questions of fact requiring production of evidence and examination of parties. For the foregoing reasons, the writ petition is disposed of granting leave to the petitioners to move the District Court concerned seeking redressal of their grievances. If any such application is filed, the District Court is directed to dispose of the same expeditiously in view of the long pending litigation. ___________________ N.V. RAMANA, J. Date: .2.2008 msv [1] AIR 1971 Patna 354 [2] AIR 2006 Jharkhand 116 [3] 2004(2) ALT 256 (DB) [4] 2003(5) ALD 194