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K.MARUTHAMUTHU versus THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR

High Court of Madras

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K.Maruthamuthu v. The District Magistrate and District Collector - Writ Petition (MD)No.4388 of 2007 [2007] RD-TN 1717 (24 May 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 24/05/2007

CORAM:

THE HONOURABLE MR.JUSTICE P.K.MISRA

Writ Petition (MD)No.4388 of 2007

Writ Petition (MD)No.4389 and 4390 of 2007

K.Maruthamuthu ... Petitioner in W.P. No.4388/2007

M.Kalyanasundaram ... Petitioner in W.P.

No.4389/2007

M.Saraswathi ... Petitioner in W.P. No.4390/2007

vs.

1.The District Magistrate and District Collector, Karur District, Karur.

2.The Superintending Engineer,

General Construction Circle,

TNEB, Mannarpuram, Trichy.

3.M/s.E.I.D.Parry (Pvt.) Ltd.,

Pugalur S.F.Post,

Pugalur, Karur District. ... Respondents 1 to 3 in all the W.Ps.

Writ Petitions under Article 226 of the Constitution of India praying for issuance of a writ of certiorari by calling for the records pursuant to the order of the 1st respondent dated 16.04.2007, bearing Rc.D1/4833/2007 and quash the same.

For petitioners ... Mr.Srinivasa Ragavan for

in all the WPs. Mr.M.Karthikeya Venkatachalapathy

For Respondent .. Mr.K.M.Vijayakumar,

No.1 Addl.Govt.Pleader. For Respondent ... Mr.T.R.Rajagopal,

No.3 Senior Counsel for

Mr.T.R.Rajaraman

For Respondent ... Mr.Suresh Kumar

No.2

:COMMON ORDER



Even though the matters were listed for considering the petitions for continuance of the order of interim stay, since for deciding the aforesaid matter it was necessary to hear the writ petitions at length, all the writ petitions have been heard on merit and are being disposed of by this common order.

2.All the writ petitions raise the common questions of fact and law. The prayer in the three writ petitions is for issuing a writ of certiorari for quashing the order of the 1st respondent , namely the District Magistrate and District Collector, Karur District, dated 16th April, 2007 in Rc.D1/4833/2007.

3.The facts which are no longer in dispute, as culled out from the writ petitions and the counter filed by respondent No.3, in brief, are as follows:

The petitioners are owners of agricultural lands in Punjai Pugalur North Village, Karur Taluk. Respondent No.2 represents the Tamil Nadu Electricity Board, being its Superintending Engineer and respondent No.3 is an entrepreneur. Respondent No.3 is a sugar manufacturer and has set up a co- generating electricity production unit within its sugar factory premises. It consumes 6 MW energy and the surplus energy generated by the third respondent is to be supplied to the Tamil Nadu Electricity Board. For the purpose of transmission of such surplus energy, the second respondent intends to erect high tension power transmission line. For the aforesaid purpose, it is proposed to erect 21 towers, out of which, some towers are to be located on factory lands, Tamil Nadu Electricity Board lands and Tamil Nadu Papers Limited (TNPL) lands and the rest of the towers are to be located on private patta lands.

4.It appears that after efforts made by the Tamil Nadu Electricity Board to hold survey and other preliminary works, the three present petitioners and few other land owners filed W.P.(MD)Nos.9165/2006, 9170/2006, 9174/2006, 9176/2006 and 11136/2006 seeking for a writ of mandamus directing the respondents therein, namely the Tamil Nadu Electricity Board and other officials and the present respondent No.3 not to erect the electricity power lines over the lands belonging to such petitioners, without the consent of the petitioners and without following due process of law. All such writ petitions were taken up together and disposed of by this Court by a common order dated 01.02.2007. The learned Judge, extracted paragraph No.27 of the order passed by a learned Single Judge of this Court in W.P.No.49172 of 2006 etc. batch, disposed on 18.01.2007 and passed the following order.

"3.Considering the said submission of the counsel for both sides, the petitioners are at liberty to submit their objections, if any to the District Magistrate concerned within a period of two weeks from today. On receipt of such objections, the District Magistrate is directed to consider the same in the light of the Order passed by this Court, which is mentioned supra and pass orders on merits and in accordance with law, after affording an opportunity to the petitioners as well as the respondents, within a period of six weeks thereafter."

5.Thereafter, objections were filed on behalf of the present petitioners before the District Magistrate. The District Magistrate, after hearing the present petitioners and respondent Nos.2 and 3, by the common impugned order, rejected the objections filed by the present petitioners by observing as follows:

"Section 3(i)(b) of the Works of Licensees Rules, 2006 tells that the licensee who carryout the works shall obtain permission in writing from the District Magistrate or the Commissioner of Police or any other officer authorised in this behalf, if the owner or occupier of the land raises objections in respect of such works. In as much as I hold that the objections of the Writ Petitions-land owners are untenable, I reject their plea for dismissing the application of M/s.EID Parry India Ltd. For permission to lay their power line and erection of transmission towers and pass orders accordingly under powers vested with me under rule 3(1)(b) of Works of Licensees Rules, 2006, read with section 10 and 16/1 of the Indian Telegraphic Act, 1885. IN the same breath, the TNEB is advised that the transmission towers might be located in the edges/corners of the fields as far as possible so that minimum hardship only is rendered to the concerned land owners."

6.On a perusal of the order passed by the District Magistrate, it appears that mainly two contentions had been raised on behalf of the petitioners objecting to the erection of the transmission towers. The first contention seems to be to the effect that the scheme for erection of transmission towers had not received the approval of the Government and the second objection was to the effect that it was a commercial interest oriented to help a private company and there was no public utility. Both the contentions were negatived by the District Magistrate.

7.In the present writ petitions, the petitioners have contended that as per Section 39 of the Electricity Act, 2003, a State Transmission Utility cannot engage in the business of trading in electricity and since, in the present case, the Tamil Nadu Electricity Board is purchasing electricity from respondent No.3 and seeking to erect transmission lines to transmit the surplus energy, such transaction is in violation of Section 39 of the Electricity Act, 2003. The second contention is to the effect that only the licensee under the Electricity Act, 2003 can approach the District Magistrate as per Rule 3 of the Works of Licensees Rules, 2006 (hereinafter referred to as "the Rules"), if any objection is raised by the land owner or occupier relating to erection of any transmission line and since the Tamil Nadu Electricity Board cannot be considered as a licensee, no such permission can be sought for by such Electricity Board. The third contention of the petitioners is to the effect that under Rule 3 of the Rules, while considering the question of grant of permission, the District Magistrate is also required to assess the compensation payable for the damages caused and in the present case the District Magistrate having not done so, the order passed by the District Magistrate must be taken to be invalid. Apart from the above, it has been asserted in the writ petitions that the purpose for erection is profit motive of Respondent No.3 and does not involve any welfare of the Public.

8.Learned Senior Counsel appearing for respondent No.3 has refuted the aforesaid contentions and has submitted that in view of the provisions contained in Section 172 of the Electricity Act, 2003, the State Electricity Board constituted under the Electricity (Supply) Act, 1948 shall be deemed to be the State Transmission Utility and a licensee under the provisions of the Electricity Act, 2003. It is further submitted by him that the surplus power generated by respondent No.3 is required by the Tamil Nadu Electricity Board for distribution to the consumers and for the aforesaid purpose, it is necessary to construct transmission line for transmission of surplus energy from the premises of respondent No.3 to the sub-station of the Tamil Nadu Electricity Board and for the aforesaid purpose, the Electricity Board has the authority to erect transmission towers on the land of private owners. It has been further submitted that after making careful survey the places for locating the transmission towers have been selected causing the least damage possible to the private owners and the purpose is to sub-serve the public interest, such surplus energy is required by the Board for distribution among the customers. It is further submitted that in the objections filed by the various petitioners nothing had been indicated about the compensation to be paid and merely because the District Magistrate has not fixed the compensation, it cannot be said that the permission granted by the District Magistrate is void and even now the District Magistrate can consider the question of payment of compensation if necessary particulars are provided by the various petitioners. Learned Senior Counsel for respondent No.3 further submitted that the petitioners have not availed of the alternative remedy and instead of approaching the State Regulatory Commission they have filed the writ petitions which should not be entertained.

9.The Electricity Act, 2003 has been enacted inter alia to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity. Section 185 of the said Act contains provisions relating to repeal and saving. Section 185 is extracted here under to the extent relevant.

"185.Repeal and Saving.--(1)Save as otherwise provided in this Act, the Indian Electricity Act, 1910 (9 of 1910), the Electricity (Supply) Act, 1948 (54 of 1948) and the Electricity Regulatory Commissions Act, 1998 (14 of 1998) are hereby repealed.

(2)Notwithstanding such repeal,--

(a)anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission, authorisation or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act; (b)the provisions contained in section 12 to 18 of the Indian Electricity Act, 1910 (9 of 1910), and rules made thereunder shall have effect until the rules under section, 67 to 69 of this Act are made; (c)......"

Section 172 of the Electricity Act, 2003 which contains transitional provisions is also extracted so far as relevant. "172. Transitional provisions.--Notwithstanding anything to the contrary contained in this Act,--

(a)a State Electricity Board constituted under the repealed laws shall be deemed to be the State Transmission Utility and a licensee under the provisions of this Act for a period of one year from the appointed date or such earlier date as the State Government may notify, and shall perform the duties and functions of the State Transmission Utility and a licensee in accordance with the provisions of this Act and rules and regulations made thereunder: Provided that the State Government may, by notification, authorise the State Electricity Board to continue to function as the State Transmission Utility or a licensee for such further period beyond the said period of one year as may be mutually decided by the Central Government and the State Government. (b)......"

As per Section 2(67) of the Electricity Act, 2003, "State Transmission Utility" means the Board or the Government company specified as such by the State Government under sub-section (1) of section 39. As per section 2(39) of the Act, "licensee" means a person who has been granted a licence under section 14.

Section 14 of the Act, to the extent relevant, is extracted here under.

"14.Grant of licence.--The Appropriate Commission may, on an application made to it under section 15, grant a licence to any person-- (a)to transmit electricity as a transmission licensee; or (b)to distribute electricity as a distribution licensee; or (c)to undertake trading in electricity as an electricity trader, in any area as may be specified in the licence:

Provided that any person engaged in the business of transmission or supply of electricity under the provisions of the repealed laws or any Act specified in the Schedule on or before the appointed date shall be deemed to be a licensee under this Act for such period as may be stipulated in the licence, clearance or approval granted to him under the repealed laws or such Act specified in the Schedule, and the provisions of the repealed laws or such Act specified in the Schedule in respect of such licence shall apply for a period of one year from the date of commencement of this Act or such earlier period as may be specified, at the request of the licensee, by the Appropriate Commission and thereafter the provisions of this Act shall apply to such business: Provided further that the Central Transmission Utility or the State Transmission Utility shall be deemed to be a transmission licensee under this Act:

...."

10.A conjoint reading of aforesaid provisions makes it clear that the State Electricity Board, which was constituted under the Electricity (Supply) Act, 1948 is deemed to be the State Transmission Utility and a licensee under the provisions of the Electricity Act, 2003 and as such shall be deemed to be a State Transmission Utility and a licensee under the Act, which would have power to erect transmission lines and for the aforesaid purpose it is obviously vested with the jurisdiction to erect towers, if necessary even on the lands belonging to private persons. However, by virtue of the provisions contained under Section 10 of the Indian Telegraph Act, 1885 as well as Rule 3 of the Rules, if any objection is raised by any person relating to erection of power supply lines, necessary permission from the District Magistrate is required.

11.It is of course true that under Section 10(d) of the Indian Telegraph Act, 1885, the concerned Authority is obliged to do as little damage as possible and he is also required to pay compensation to all persons interested for any damage sustained by such persons by reason of the exercise of such power. Similarly, under Rule 3(2) of the Rules, the District Magistrate is required to fix the amount of compensation or annual rent or of both to be paid by the licensee to the owner or occupier. In the present case, no assessment regarding compensation payable has been made by the District Magistrate. This may be because the writ petitioners have not specifically claimed any compensation to be paid. However, merely because the District Magistrate has not assessed the compensation payable, it cannot be said that the order passed by the District Magistrate permitting the Electricity Board to erect the towers for supporting the electricity supply lines cannot be characterised as void or without jurisdiction. There is no provision either under the Indian Telegraph Act, 1885 or under the Rules which makes the payment of compensation as a condition precedent for the permission to be granted. The provisions of the Indian Telegraph Act, 1885 and the Rules contemplate that there is statutory obligation on the Authority concerned, including the licensee to pay such compensation and failure to do so would attract penal provisions. However, payment of such compensation can be a condition subsequent rather than a condition precedent.

12.Both under Section 10 of the Indian Telegraph Act, 1885 as well as under the Rules, it is expected that the licensee shall cause the least damage. In the present case, it has been pointed out that the Electricity Board has carefully chosen the places where the towers are to be erected with a view to cause least inconvenience and damage to the persons concerned. Nothing was specifically pointed out before the District Magistrate to come to a conclusion that in fact the damage likely to be caused could have been minimised by erecting the towers on any other part of the lands. Similarly, nothing has been averred specifically in the present writ petitions in support of the submissions that the provisions contained in Section 10 of the Indian Telegraph Act, 1885 or in the Rules were transgressed in any manner. As already indicated, the main contention seems to be the lack of authority on the part of the Electricity Board on various legal grounds. However, factually, no assertion seems to have been made that the places have been selected arbitrarily or are in any way inconvenient or inappropriate.

13.It is contended that the District Magistrate has not considered the objections in proper perspective. Even though the petitioners could have approached the Regulatory Commission, they have filed the writ petitions by- passing the statutory remedy available. The contention raised by the petitioners to the effect that no such Regulatory Commission is in place does not appear to be correct. Even though existence of alternative remedy cannot be considered as an absolute bar for entertaining a writ petition, while deciding such writ petition, the High Court is obviously confined to the parametres and limited jurisdiction available under Article 226 of the Constitution of India. It is well settled that while deciding a matter under Article 226, the High Court does not sit as an appellate authority over the decision of the inferior tribunal and unless the order passed by the inferior tribunal is arbitrary or patently erroneous or contrary to the principles of natural justice, ordinarily the High Court does not interfere with such orders. It is no doubt true that the District Magistrate while dealing with the matter is functioning as a quasi judicial authority. However, the District Magistrate is not expected to write a judgement like a civil court. A careful perusal of the order passed by the District Magistrate clearly indicates that the District Magistrate has adhered to the relevant facts and circumstances and has over-ruled the objections raised by the petitioners.

14.The other contention to the effect that the project in question was not in public interest, but in private interest cannot be accepted. The need for generation and transmission of electric energy cannot be over emphasised. Respondent No.3 intends to generate electricity from non- conventional source, which is the need of the hour. Therefore, the arrangement made by the Electricity Board to purchase surplus energy from respondent No.3 and to transmit the same to its own sub-station for the purpose of distribution among the consumers achieves the purpose under Electricity Act, 2003.

15.The contention of the petitioners that such transaction is in violation of Section 39 of the Act does not appear to be well founded. As a matter of fact, such a contention has been raised for the first time. It is no doubt true that the Electricity Board is paying for the surplus energy generated by Respondent No.3 . But, by virtue of the above aspect alone, it cannot be said that the Electricity Board is indulging in any trading activity and the business of trading in electricity contrary to Section 39(1)(proviso). Moreover, by virtue of Section 172 of the Act, the Board can be deemed to be not only the State Transmission Utility but also a licensee and thus authorised to engage in distribution of electricity.

16.It was contended by the learned counsel appearing for the petitioners that the Electricity Board is not authorised under Section 164 of the Electricity Act, 2003 to exercise the powers of Telegraph Authority in accordance with the Indian Telegraph Act, 1885. The provisions contained in Section 164 of the Electricity Act, 2003 are similar to the provisions contained in Section 51 of the Indian Electricity Act, 1910. It is not in dispute that the Tamil Nadu Electricity Board had been conferred with the powers under Section 10 of the Indian Telegraph Act, 1885. (This is apparent from the decision reported in AIR 1997 Mad. 64 - E.Venkatesan v. Chairman, T.N.Electricity Board, Madras). Section 185(2) of the Electricity Act, 2003 envisages that notwithstanding the repeal of the Indian Electricity Act, 1910, notification, or order under the repealed Act shall be deemed to have been made under the corresponding provision of the Electricity Act, 2003 insofar as it is not inconsistent with the provisions of the present Act. Since there is no inconsistency of such notification with the provisions of the present Act, including Section 164, it is obvious that the State Electricity Board is empowered to exercise the jurisdiction under Section 10 of the Indian Telegraph Act, 1885. Even otherwise, the Works of Licensees Rules framed in 2006 empower the Tamil Nadu Electricity Board as a Licensee to carry out the works or place any electricity supply line on any land. It is of course true that under Rule 3(a) of the Rules prior consent of the owner or occupier of the land is required. However, where such consent is not forthcoming, as in the present case, the proviso to Rule 3(1) is available and the licensee is required to obtain permission from the District Magistrate.

17.In the present case, in view of the objections raised by the owners or occupiers of the lands, the matter has been specifically referred to the District Magistrate as per the Orders passed by this Court and thereafter the District Magistrate has rejected the objections raised by the land owners and has permitted the Electricity Board to continue the work.

18.In course of hearing, a contention was raised that the Electricity Board cannot be deemed to be a State Transmission Utility and a licensee under the provisions of the Electricity Act, 2003 as the Board has not produced any notification as envisaged under Section 172 proviso to continue to function as the State Transmission Utility or a licensee for further period beyond the period of one year as envisaged under Section 172(a) of the Electricity Act, 2003. Before the District Magistrate, a specific assertion to the said effect had been made by the Electricity Board which seems to have been accepted by the District Magistrate. However, it is not necessary to delve further into this question, as, in course of hearing of the present writ petitions, my attention has been invited to the appropriate notification issued by the State Government from time to time. The last such notification was issued authorising the Tamil Nadu Electricity Board to continue to function as the State Transmission Utility and a licensee under the provisions of the Electricity Act, 2003 for a further period of six months beyond the 9th December, 2006 as mutually decided by the Central Government and the State Government. (Copy of such Notification is available in Current Tamil Nadu Acts and Rules (2007 (1) CTAR).

19.The learned counsel for the petitioners pointed out that the observation of the District Magistrate, contained in internal page 9 of his order, to the effect that the Tamil Nadu Electricity Board has already got the authority from the Government to exercise the powers of the Telegraph Authority under the provisions of Section 164 of the Electricity Act, 2003 is not correct inasmuch as no such authority has been issued specifically under the Electricity Act, 2003. This observation of the District Magistrate may appear to be slightly inappropriate in the sense that there does not appear to be specific authorisation under Section 164 of the Electricity Act, 2003 after such Act has come into force. However, as already discussed, such authorisation under Section 51 of the Indian Electricity Act, 1910 can be said to be still holding the field by virtue of the provisions contained in Section 185(2) of the Electricity Act, 2003.

20.To sum up the conclusions, it can be said that the Tamil Nadu Electricity Board shall be deemed to be the State Transmission Utility and a licensee under the provisions of the Electricity Act, 2003 by virtue of the provisions contained in Section 172(a) read with the notifications issued from time to time by the State Government under the proviso to the said Section. In view of the authorisation issued under Section 51 of the Indian Electricity Act, 1910, which can be deemed to be continuing by virtue of Section 185(2) of the Electricity Act, 2003, the Tamil Nadu Electricity Board can be considered as the State Transmission Utility as well as the licensee and authorised to exercise the powers under the Indian Telegraph Act, 1885. The exercise of the power by the Electricity Board is obviously for the public purpose and it cannot be said that there is any embargo on the Board under Section 39 of the Electricity Act, 2003. This is so because the Tamil Nadu Electricity Board can be considered not only as a State Transmission Utility but also as a licensee under the Electricity Act, 2003. There is nothing on record to show that the places proposed to be utilised for erecting the towers are likely to cause more damage than necessary. However, the land owners are entitled to get compensation which has to be ascertained by the District Magistrate and for the aforesaid purpose an enquiry shall be held by the District Magistrate which should be concluded after giving opportunity of hearing to all concerned, including the owners of the property, as expeditiously as possible, preferably within a period of two months from the date of receipt of a copy of this order. Since there is a statutory obligation on the part of the Tamil Nadu Electricity Board to pay compensation, it is expected that the Board would pay such compensation within a period of one month from the date of determination by the District Magistrate. However, it would be open tot he owners to raise appropriate dispute before the appropriate forum relating to extent of compensation, if they are so advised. Notwithstanding the direction that the District Magistrate is required to assess the compensation payable, it is always open to the petitioners and the Electricity Board and respondent No.3 to fix the amount of compensation payable on the basis of mutual discussion. The Electricity Board can proceed with the work in respect of the lands of the three writ petitioners and this need not await the determination/payment of compensation.

21.Subject to the aforesaid directions and obse4rvations, the writ petitions are disposed of. No costs. Connected M.P.(MD)Nos.1 and M.P.Nos.2 of 2007 are closed.

To:

1.The District Magistrate and District Collector, Karur District, Karur.

2.The Superintending Engineer,

General Construction Circle, TNEB, Mannarpuram, Trichy.

3.M/s.E.I.D.Parry (Pvt.) Ltd.,

Pugalur S.F.Post,

Pugalur, Karur District.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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