THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA WRIT APPEAL No.18 of 2010 Dated:21.01.2010 Between:
Rama Lakshmi, And another.
…Appellants and The National Thermal Power Corporation, And others.
…Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA WRIT APPEAL No.18 of 2010 JUDGMENT: (per Hon’ble Sri Justice V.V.S.Rao) The appellants’ writ petition, being W.P.No.3707 of 2003, having been dismissed by the learned Single Judge on 15.09.2009, they filed the instant appeal. The appellants statedly are owners of land admeasuring Acs.10.15 cents comprised in survey Nos.174.2 and 174.3 situated at Rachanapalli Village of Ananthapur Mandal, Ananthapur District. The third respondent was entrusted with the construction of 400 KV S/C transmission lines between Gooty and Neelamangala under Ramagundam Stage-III project for transmitting power to southern region. The work was commenced in 2005. In the meanwhile, the appellants filed writ petition alleging that the transmission lines which would pass through their land in an extent of Ac.1.90 cents and would render the balance Acs.8.25 cents unfit for residential purpose and they would be enable either to use it for residential purpose or agricultural purpose. They sought for a declaration that the action of the respondents in depriving them of their property without paying compensation is illegal and arbitrary and for a consequential injunction restraining from interfering with their possession of an extent of Ac.1.90 cents.
The Writ Petition was opposed by the third respondent. Reference was made to the Electricity (Supply) Act, 1948, the Electricity Act, 2003, and the provisions of the Indian Telegraph Act, 1885, which were made applicable to the Electricity Act and the Electricity (Supply) Act. It was contended that constructing/laying of transmission lines and transmission towers would not cause any prejudice to the appellants, that the appellants having not made any objections to the scheme published by the third respondent cannot be permitted to object erection of transmission towers, and that they can avail remedy under Section 16 of the Indian Telegraph Act.
Learned Single Judge relied on Bhaskara Housing (P) Limited, Hyderabad v APSEB, Hyderabad[1], Sri Sai Surya Gardens Private Limited v Union of India[2] and an unreported judgment in W.P.No.26075 of 2003 (M/s.Narne Estate Private Limited v Power Grid Corporation) and dismissed the writ petition while observing that when the appellants failed to raise objections to the scheme, they cannot have any objection at a later point of time. Learned Judge also held.
By virtue of the provisions under the Electricity (Supply) Act, 1948, and the Electricity Act, 2003, the provisions of the Indian Telegraph Act, 1885, are made applicable for the purpose of erection of lines for laying Grid by the Power Grid Corporation. As per Part-III of the Indian Telegraph Act, respondent-authorities are empowered to lay lines for user purposes, from any immovable property. In that view of the matter, merely because the lines are passing through the land belonging to the petitioners, it is not obligatory on the part of the respondents to acquire the said land and pay compensation under the provisions of the Land Acquisition Act, 1894… Learned Counsel for the appellants submits that the respondents have not initiated any action for payment of compensation by way of damages for the land occupied by the transmission towers, and therefore, the erection of towers on appellants’ land violates Articles 14 and 300 A of the Constitution of India. He nextly submits that under the Indian Telegraph Act the appellants are entitled to claim for diminished rights of the user of the land, whereas the petitioners are not paid any compensation for the deprivation of the user.
The Writ Petition was filed in 2003 when the third respondent mooted a proposal to construct among others Gooty and Neelamangala transmission towers for wheeling power generated by Stage-III Ramagundam Thermal power Station. There is no dispute that for all intent and purpose the third respondent, which is a fully owned Government of India Company, is entitled to exercise powers vested in a generating company under Electricity (Supply) Act. In accordance with Sections 28, 28(1) and 29(2) of the Electricity (Supply) Act, the third respondent notified the scheme relating to the construction of transmission lines in the Andhra Pradesh Gazette dated 27.01.2000. A paper publication was also issued. Admittedly, the appellants did not make any representation raising objections. As per the notified scheme, 26 metres on either side of the alignment line is ‘electrical zone’ below which the trees and structures are prohibited beyond a particular height and any existing trees are to be cut, in which event, the owner of the trees would be entitled for compensation. As seen from the counter of the third respondent, after publishing notification, preliminary survey was conducted on its behalf in March 2001 and a detailed survey in December 2002. The work of erecting transmission towers was entrusted to M/s.Best & Cromption Limited in February 2003.
The question is whether the third respondent while erecting power transmission towers/lines is required to acquire land of a private person through which power lines are drawn. By virtue of Section 42(1) of the Electricity (Supply) Act read with Section 10 of the Indian Telegraph Act it is permissible for the third respondent to erect power transmission lines without causing any damage to the immovable property. For that purpose it shall not be necessary to acquire any right other than that of user only in the property. In B.Krishna Mandadi v Power Gride Corporation of India Limited[3] one of us (VVSRJ) considered this aspect of the matter and noticed the legal position as under.
Section 42 of the Electricity Act enables the generating company to enter upon the land after publication of the scheme under Section 28 for the purpose of placing any wires, poles, wall-brackets, stays apparatus and appliances for the transmission and distribution of electricity, in so doing, a generating company shall have all the powers which the telegraph authority possesses under Telegraph Act with regard to the telegraph established and maintained by the Government. Sub-section (2) of Section 42 of the Electricity Act needs to be extracted in this context.
42(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.
Under Section 10 of the Telegraph Act, the telegraph authority may place and maintain a telegraph line under, over, along or across any immovable property. A telegraph authority shall do as little damage as possible and further that it shall pay full compensation to all persons interested for any damage sustained by them by reason of exercise of power under Section 10 of the Telegraph Act.
The conspectus of reading provisions referred to hereinabove would be this. A generating company engaged in generation, transmission and supply of electricity is empowered under the provisions of Electricity Act to lay electric poles, construct transmission towers on any private land without giving any notice and without causing damage to the property provided there is a scheme published as required under Section 28. Even while erecting transmission lines, if any damage is caused, by reason of Section 10 of the Telegraph Act read with Section 42(1) and (2) of the Electricity Act, a generating company has to pay compensation for the damage sustained by the owners of the land or owners of the crops.
A grievance is made before us that the third respondent is contemplating to pay compensation only for the trees, but the appellants’ deprivation of user is not being compensated. We are afraid, we cannot accept the submission. Under the scheme notified already by the third respondent the trees and structures existing within 26 metres of the electrical zone beyond a particular height are alone not permissible for which compensation can be claimed. No material is placed before us by the appellants to go into such question. If any of the structures or trees within the prohibited height exists in the appellants’ lands it is always open to the appellants to make an application to the District Magistrate and seek compensation. The learned Single Judge also reserved such liberty to the appellants and no interference is called for.
Accordingly, the Writ Appeal is dismissed. There shall be no order as to costs.
(V.V.S.RAO, J) (B.N.RAO NALLA, J) 21.01.2010 vs
[1] 1998 (6) ALD 781
[2] 2004 (2) ALT 256 (DB)
[3] 2003 (5) ALD 194