IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18..01..2007 C O R A M THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN W.P. Nos.49172, 32374, 36024, 39330, 48614, 47813, 38812 and 38848 of 2006 W.P. No.49172 of 2006 : T. Narayanan .. Petitioner versus Power Grid Corporation (India) Limited, 59, State Bank Colony, West Tambaram, Chennai-45. .. Respondent - - - - - Prayer : Petitions under Article 226 of the Constitution of India to issue a writ of mandamus for bearing the respondent, its men, sevants or agents or any one claiming under them from in any manner erecting any pillar or post for the purpose of high tension power supply or otherwise, over the property of an extent of 28.33-1/2 acres in Survey Nos. 86,97/1 and 2, 100,101,103,104,105,106,107/1, 2 and 3, 108, 118/1,2 and 3 119,120/1 and 4 121/1, 124, 125/1 and 2, 126, 127, 128/1,129, 130, 142/1 and 2 144-part, 146, 147/1 to 5 and 148/1 to 4 of No.79 Goodaloor Village within Maraimalai Nagar Town Panchayat, Kancheepuram District. WP.No.36024 of 2006:- S. Ramachandran ....Petitioner vs 1. Power Grid Corporation of India Ltd., rep by its General Manager, 32, Race Course Road, Bangalore 560 001. https://hcservices.ecourts.gov.in/hcservices/ 2. The Deputy General Manager, Power Grid Corporation of India Ltd., 59, Brindavan Street, Tambaram West, Chennai 600 040. Writ of mandamus forbearing the respondents, their men, agents and subordinates from in any manner constructing electricity transmission tower in the petitioner's lands situated in Survey nos.57/1, 57/2, 57/3, 57/4, 58, 59/2A, 59/4B, 66/1, 66/2, 66/5, and 66/6 in Vellarithaangal Village, Sriperambathur Taluk, Kancheepuram District except in accordance with due process of law. WP 39330 of 2006: M/s Ayanavaram Educational Trust, rep. by its Managing Trustee, Mr. Moosa Having their Office at Dhaanish Nagar, Chennai - 601 301. Kancheepuram Dt. .. Petitioner vs. 1. Power Grid Corporation of India Ltd,. rep.by its General manager 32, Race Course Road, Bangalore-560 001. 2. The Deputy General Manager Power Grid Corporation of India Ltd, 59, Brindavan St, Tambaram West, Chennai - 600 040. .. Respondents forbearing the Respondents, their men, agents and subordinates from in any manner erecting or constructing High Tension Electrical Transmission Tower or High Voltage Electricity Lines in or across the petitioner's lands etc., situated at No.150, Vellerithangal Village, Sriperumbudur Taluk, Kancheepuram District and more particularly set out in the Schedule hereunder, except in accordance with due process of law. WP 48614 of 2006; N. Sukumar .. Petitioner vs. https://hcservices.ecourts.gov.in/hcservices/ Power Grid Corporation of India Ltd, The Government of India Enterprises 11/3, PMR Layout Entension, 5th Street, Goldwins Civil Aerodrome, Coimbatore-14. .. Respondent Petition filed to issue Writ of mandamus forbearing the respondent herein from erecting high tension electricity poles over the petitioner's lands in Survey No. 3/3 and 4/3 of Itchipatti Village, Palladam Taluk, Coimbatore District by considering his representation dt. 18.9.2006 and 30.9.2006. WP NO. 47813 OF 2006 R. KANNAN Petitioner vs 1. OFFICER IN CHARGE M/S. POWER GRID CORPORATION OF INDIA LTD MINISTRY OF POWER CONSTRUCTION AREA OFFICE, 59, BRINDAVAN ST., TAMBARAM WEST. CHENNAI 45 2. THE CHAIRMAN M/S POWER GRID CORPORTION OF INDIA LTD MINISTRY OF POWER, KATWARIA SARAI, NEW DELHI. ... Respondents Writ of Mandamus or any other appropriate writ, direction forbering the respondents from putting up tower for the purpose of High Tension overhead Lines in Surey No. 362 and 363 of Ninnakari Village, Kattankulathur, kancheepuram district mesuring 13.67 acres and pass such further or other orders as this Hon'ble Court may deem fit and proper in the circumstances of the case WP NO. 38848 OF 2006 AND 38812/2006 A. Saraswathi .. Petitioner in WP NO. 38848/06 P. Balamani .. Petitioner in WP NO. 38812/06 https://hcservices.ecourts.gov.in/hcservices/ vs 1. THE DISTRICT COLLECTOR COIMBATORE DIST., COIMBATORE. 2. THE CHIEF ENGINEER POWER GRID CORPORATION OF INDIA LTD. (A GOVT. OF INDIA ENTERPRISES) 3, FIRST FLOOR, PMR LAYOUT EXTENSION, CIVIL AERODROME POST, COIMBATORE. 3. THE SUPERINTENDING ENGINEER KOVAI ELECTRICITY DISTRIBUTION CIRCLE, KOVAI SOUTH, COIMBATORE Writ of Mandamus in the nature of Writ forbearing the respondents their men and their agents from interfering with the petitioners peaceful possession and enjoyment of the land comprised in S.No.308/1 of K.Ayyampalayam Village, Palladam Taluk, Coimbatore District and measuring an extent of 1.335 acres except by due process of law. W.P.32374 of 2006 St. Joseph Residential School, rep by Superior general and Managing Trustee, Shri Sister Virgin having head office at Amala Bhavan, Rudra Road, St. Thomas Mount, Chennai-16. ... Petitioner Vs Deputy General Manager, The Power Grid Corporation of India, No. 59, Brindavana Venue, Tambaram West, Chennai-45. ... Respondents Petition under Art 226 of the Constitution of India issue a writ of mandamus in the nature of direction directing the respondent to consider our representation dated 28.8.2006 before proceeding with the errection of Power Grid/High Tension Poles in accordance to law and also to give the petitioner opportunity of hearing before carrying on with the said proposal. https://hcservices.ecourts.gov.in/hcservices/ - - - - - For petitioner in : Mr. R. Muthukumarasamy, W.P.36024 of 2006 Senior Counsel for Mr. P.V. Bakthavatchalam For petitioner in : Mr. AR.L. Sundaresan, W.P.49172 of 2006 Senior Counsel for Mrs. AL. Gandhimathi For petitioner in : Mr. M. Md. Ibrahim Ali W.P.47813 of 2006 For petitioner in : Mr. N. Manokaran W.P.48614 of 2006 For petitioner in : Mr. D. Krishnakumar W.Ps.38812 & 38848 of 2006 For petitioner in : Mr. S.A. Hafiz W.P.39330 of 2006 For petitioner in : Mr. Adi Narayana Rao W.P.32374 of 2006 For Power Grid Corpn. Ltd. : Mr. Jeyesh Dolia and Mr. Mohammed Moin for M/s. Aiyar & Dolia For District Collector in W.Ps. : Mr. S. Rajasekar, 38812 & 38848 of 2006 Government Advocate For Electricity Board in W.Ps. : Mr. J. Ravindran 38812 & 38848 of 2006 - - - - - O R D E R The writ petitioners are owners of properties. They pray that a writ of mandamus be issued forbearing the respondent/Power Grid Corporation from erecting pillars or posts or transmission towers in their respective lands for the purpose of drawing Overhead High Tension Power Supply Lines. Writ Petition No.32374 of 2006 is for consideration of the petitioner's representation before proceeding to erect such post or pillar or tower in respect of their land. 2. Two projects are involved in these writ petitions. One relates to carrying out Reconnaissance, Preliminary Survey, Detailed Survey, Check Survey and Contouring at Tower Locations for https://hcservices.ecourts.gov.in/hcservices/ 400 KV D/C LILO Line from existing 400 KV S/C Kolar - Sriperumbudur Line to New Sub-Station at Kalivandapattu (Melakottaiyur) and the other relates to the construction of Udumalpet to Arasur 400 KV D/C Power Transmission Line comprising 195 Towers with a length of 65 kilometers, connecting Udumalpet 400 KV Sub-Station to Arasur 400 KV Sub-Station. The Power Grid Corporation (hereinafter referred to as the 'Corporation') has been entrusted with the above works under schemes duly approved by the Government of India for providing quality power at large with greater reliability, particularly to the agricultural, residential and commercial establishments in the State of Tamil Nadu in general and the villages of Udumalpet and Arasur in particular, which in turn will be a big boost to the industrial and agricultural growth of the State. 3. The main grievance of the writ petitioners is that the statutory provisions were ignored by the Corporation while installing the transmission towers across their respective lands; that the entry by the Corporation into their private property is without authority; that there are alternative lands which are available, which can be used for the purpose; that the erection of these towers is to the detriment of the petitioners' rights guaranteed under Article 300-A of the Constitution of India; and that no opportunity was given to the petitioners to putforth their objections. 4. Mr. R. Muthukumarasamy and Mr. AR.L. Sundaresan, learned senior counsel appearing for the writ petitioners made their submissions on facts and in addition, they pointed out that the licensee namely the Corporation cannot exercise its power except in accordance with the provisions of the Works of Licensees Rules, 2006, the Indian Telegraph Act, 1885 and the Electricity Act, 2003. It was pointed out that the Indian Telegraph Act as well as the Works of Licensees Rules (Rules in short) require that permission should be obtained by the licensee from the District Magistrate when there is resistance/obstruction to the erection of the towers or carrying out the works etc., as the case may be. 5. On the other hand, the learned counsel appearing for the Corporation submitted that this project is a very ambitious project where huge expenditure of money is involved and that there cannot be any deviation from the actual layout of the project at the instance of the petitioners, since the project has been undertaken after due consideration of various factors, which includes the route particulars, the environmental impact, construction problems, availability of labour, infrastructural issues, etc. and there cannot be any detour or deviation merely because one person finds it inconvenient to have the transmission towers installed across his land. The learned counsel also produced photographs and https://hcservices.ecourts.gov.in/hcservices/ submitted that the height and width of the transmission towers would allow tractors to easily pass underneath those towers and there would be, if at all, minimal interference with agricultural operations; there are no dwelling houses in the lands which are involved in these writ petitions and when the Electricity Act does not contemplate prior notice, no person can complain of want of opportunity. The learned counsel further submitted that it is futile to rely on the provisions of the Works of Licensees Rules which speak of permission in writing from the District Magistrate, since Sub-rule (4) of Rule 3 specifically excludes the licensees who have been empowered under Section 164 of the Electricity Act from the provisions of Rule 3. The learned counsel also submitted that as on date, there has been no objection or obstruction from any party and even the prayer in the writ petitions is only for a mandamus and therefore, even assuming without admitting that the Rules do apply, the Corporation has not received any "objections in respect of the works to be carried out in this regard". The learned counsel submitted that if the petitioners have any grievance, they have to lodge the same before the District Magistrate and thereafter, the Corporation could deal with it. The learned counsel also pointed out the practical difficulties that an authority such as the Corporation would face if it is to approach the District Magistrate each and every time there is an objection by a land owner for erection of a transmission tower. 6. The following questions arise for consideration in these writ petitions : (i) Whether the petitioners are objectors in the eye of law? (ii) Who is to approach the District Magistrate if there is an objection to the carrying out of any work or the erection of transmission tower/telegraphic pole, as the case may be? and (iii) Whether Sub-rule (4) of Rule 3 of the Works of Licensees Rules, 2006 obviates the necessity of approach the District Magistrate for permission in writing? 7. The relevant statutory provisions are extracted hereunder :- The Works of Licensees Rules, 2006 "3. 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 lawfully laid down or placed by such licensee, with the prior consent of the owner or occupier of any building or land; https://hcservices.ecourts.gov.in/hcservices/ (b) fix any support of overhead line or any stay or strut required for the purpose of securing in position any support of any overhead line on any building or land or having been so fixed, may alter such support : Provided that 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 shall obtain permission in writing from the District Magistrate or the Commissioner of Police or any other officer authorised by the 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 fixed shows sufficient cause, the District Magistrate or the Commissioner of Police, or the officer authorised may by order in writing direct for any such works, support, stay or strut to be removed or altered. (2) When making an order under sub-rule (1), the District Magistrate or the Commissioner of Police or the officer so authorised, as the case may be, shall fix, 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 authorised officer under sub- rule (1) shall be subject to revision by the Appropriate Commission. (4) Nothing contained in this rule shall effect the powers conferred upon any licensee under Section 164 of the Act." The Indian Telegraph Act, 1885 "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 https://hcservices.ecourts.gov.in/hcservices/ 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." "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 sub-section (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 persons 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 the disputing parties have in writing admitted the amount tendered to be sufficient or the amount has been determined under sub-section (3), that 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 sub-section (4) shall be final: https://hcservices.ecourts.gov.in/hcservices/ PROVIDED that nothing in this sub-section 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." The Electricity Act, 2003 "164. Exercise of powers of Telegraph Authority in certain cases. - The Appropriate Government may, by order in writing, for the 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 Government may think fit to impose and to the provisions of the Indian Telegraph Act, 1885 (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 the purposes of a telegraph established or maintained, by the Government or to be so established or maintained." 8. The authority given to the Corporation for erecting the transmission towers reads as follows : "THE GAZETTE OF INDIA-EXTRAORDINARY [PART II - Sec.3(ii)] MINISTRY OF POWER ORDER NEW DELHI, 24TH DECEMBER 2003 S.O.1463 (E) - Whereas Power Grid Corporation of India Limited, having its registered office at B-9, Qutub Institutional Area, Katwarin Sarai, New Delhi (hereinafter referred to as the "POWERGRID") is a Government Company registered under the Companies Act, 1956 and a licensee engaged in the business of inter-state transmission of electricity, under the Electricity Act, 2003. And, Whereas Powergrid is required to establish transmission system and to undertake transmission of electricity through inter-state transmission system; And, Whereas for placing and maintaining of electric lines or electrical plant under, over, along or across posts in or upon any immovable property for the transmission of electricity or for the purpose of telephonic or telegraphic communications necessary for proper coordination of works, the vesting and exercise of the powers of the Telegraph Authority under par-III of the Indian Telegraph Act, 1885 (8 of 1885) with respect to the placing of the telegraph lines and posts established or https://hcservices.ecourts.gov.in/hcservices/ maintained or to be so established or maintained are required to be conferred on the Powergrid; Now, therefore, in exercise of the powers conferred by section 164 of the Electricity Act, 2003, the Powergrid is hereby authorized to exercise all the powers vested in the Telegraph Authority under Part III of the Indian Telegraph Act, 1885 in respect of the electrical lines and electrical or maintained or to be so established or maintained for the transmission of electricity or for the purpose of telegraphic communication necessary for the proper coordination of the works. The above authorization is subject to compliance by the Powergrid to the requirements of the provisions of the Electricity Act, 2003 and rules made thereunder. [No.23/73/2003-R&R] AJAY SHANKAR, Jt. Secy." 9. The project is an ambitious project involving about 55,000 Circuit Kilometers of electricity lines. It is stated that once this project comes up, it would be possible to achieve almost uninterrupted power supply. Therefore, the question of public interest should be borne in mind while individual grievances are considered. 10. The Corporation is a licensee for the purpose of this Act. The Corporation was authorised to exercise its power subject to its complying with the requirements of the provisions of the Indian Electricity Act, 2003, as seen from the extract of the authorization above. 11. Some of the decisions that have been relied on are relevant to be discussed at this stage. 12. In A.I.R. 1995 Kerala 1 [A.M. Ismail vs. Union of India], the petitioners objected to a 11 KV line that was sought to be drawn through the properties of the petitioners. When the objections were raised, the Assistant Executive Engineer referred the matter to the District Magistrate. The District Magistrate passed an order permitting the authorities to exercise the power and therefore, writ petitions were filed. The function of the District Magistrate is spelt out in paragraph 8 of the judgment, which is extracted hereunder : "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 petitioners that the District Magistrate is given unlimited power and, therefore, the said provision is illegal cannot be accepted. The District Magistrate hears https://hcservices.ecourts.gov.in/hcservices/ 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 objectors' 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 objections, 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 Art. 14 of the Constitution." Paragraph 10 of the judgment is also relevant and is therefore extracted hereunder : "Coming to the facts of these 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 1992 and because of the obstruction it could not be drawn. The proposal is to draw 3 K.M. long K.V. line for the purpose of voltage improvement and by the proposed scheme, about 400 persons are benefited. There is also proposal to install a transformer at Edayirickapuzha. Most of the petitioners are also benefited by the proposed line. It is true that some of the petitioners will have to suffer a little inconvenience by the drawal of these lines. But considering the benefit that may derive to the consumers, the objections raised by the petitioners are not weighty and the District Magistrate rightly overruled these objections. The question was elaborately considered by the District Magistrate and the alternate suggestion to construct the line along the public road was also found not feasible. It is also pointed out that the route is by the side of a thodu and the petitioners are not seriously affected in the sense that their trees are not to be cut and removed to a greater extent." 13. In A.I.R. 1987 Karnataka 282 [E. Aswathappa vs. Karnataka Electricity Board], the petitioner was a owner of agricultural lands who sought for conversion of the same to non-agricultural purposes. At that time, he came to know that a link line would pass through his land which would result in frustration of his plans and therefore, he approached the Court for a direction to the Electricity Board to remove the lines and shift them elsewhere. What happened in that case was, the Electricity Board rushed through the construction of the pylons and the conduct of the Board was disapproved of by the Court. But what is relevant in that judgment is, it has been held that even a protest would amount to obstruction. https://hcservices.ecourts.gov.in/hcservices/ 14. The following paragraphs in A.I.R. 1972 Kerala 47 [B.P. & T. Products vs. K.S.E. Board (FB)] are relevant : "As things stand, we have to hold, as Justice Raghavan did in O.P. No.3416 of 1968, from which decision the Writ Appeal (Writ Appeal