Power Grid Corporation Ltd. v. P.G. Sukumaran and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 WA.No. 269 of 2010 -------------------AGAINST THE JUDGEMENT IN WPC.21330/2009 Dated 15/12/2009 .................... APPELLANT/3RD PETITIONER: -------------------------------- P.G.SUKUMARAN, PALATHANATHU, VENGOLAKARA, VALAYANCHIRANGARA P.O., ERNAKULAM DISTRICT-683 556. BY ADV. SRI.THOMAS ANTONY SRI.TITUS MANI RESPONDENTS/1ST & 2ND PETITIONERS: ---------------------------------------------- 1. POWER GRID CORPORATION LTD., REPRESENTED BY ITS C.A.O., CONSTRUCTION AREA OFFICE, "CHANDINI", PLOT NO.190-B, MAVELIPURAM COLONY, KAKKANADU, KOCHI. 2. MANOJ KUMAR, S/O.KESAVAN ILAYATHU, KADAMBANATH ILLAM, VENGOLAKARA, VALAYANCHIRANGARA P.O.,ERNAKULAM DISTRICT 683 556. 3. VALSALAN K.K., S/O.LATE KURIAKOSE, KILITHATTIL HOUSE, VENGOLA KARA, VALAYANCHIRANGARA P.O.,ERNAKULAM DISTRICT 683 556. R1 BY ADV. SRI. MILLU DANDAPANI. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R.Raman, Ag. C.J. & C.N.Ramachandran Nair, J.** ------------------------------------------ ## **W.A.No.269 of 2010 & C.M.Appln.No.136 of 2010** -----------------------------------------Dated this the 22[nd] day of February, 2010 ## **JUDGMENT** ## **P.R.Raman, Ag. C.J.** Heard. Delay in filing the appeal is condoned. 2. Appellant is the third petitioner. He is one of the owners of lands situated in Sy.Nos.168/7, 168/4, 577/6A-1 and 413/10 in Vengola Village. The first respondent is Power Grid Corporation Ltd. The writ petition was filed to restrain the respondent Corporation from entering into their properties, for the purpose of drawing an High Tension Electric Line. It was contended that no notice was sent to the appellant/petitioner before the respondent or their men entered into the property. It is also contended that the respondent has no authority under the Indian Telegraph Act, 1885. 3. The learned Single Judge after referring to a Full Bench decision of this Court in Bharat Plywood and Timber Products Private Ltd. v. Kerala State Electricity Board (1970 KLT 872) held that when any tangible objection is raised in the matter of drawing of electric W.A. No.269 of 2010. **==> picture [20 x 9] intentionally omitted <==** lines through the land of the objector, the authority under the Indian Telegraph Act has to approach the District Magistrate for necessary orders under Section 16(1) of the said Act read with Section 164 of the Indian Electricity Act, 2003. Ext.R1(c) is the notification issued by the Government of India investing the same powers under the provisions of the Telegraph Act on the respondent Corporation. Thus it cannot be said that the respondent has no authority to exercise the powers under the Telegraph Act. Therefore, the learned Single Judge rightly held that the respondent has got necessary authority within the meaning of the Telegraph Act. Now that an objection has been raised by the appellant/petitioner in the matter of drawing the electric line, the respondent was directed to approach the District Magistrate who has to consider the objection raised by both sides and pass appropriate orders. Petitioner is not satisfied with the said judgment and hence this appeal. 4. Sri.Thomas Antony who appears on behalf of the appellant/petitioner contends that it is not merely a drawing of electric line, but according to him the respondent has virtually taken away W.A. No.269 of 2010. **==> picture [20 x 9] intentionally omitted <==** large extent of land from his possession for the purpose of constructing towers. According to him, 50 cents of land is taken. It is also contended that except by way of acquiring the land in accordance with law they cannot construct towers in the manner as proposed. 5. The learned counsel for the respondent, on the other hand, contends that for the purpose of drawing the electric line as authorised by the Telegraph Act electric posts will have to be fixed. In this case a 400 KV electric line is being drawn and therefore, necessarily towers will have to be constructed to support the electric line. That is all that has been done and in case the land value has been diminished to the fullest extent, necessarily, the respondent will pay compensation for the same. It is also contended that it is not a case where the respondent is drawing the electric line without paying the compensation and reasonable compensation as entitled by law will be paid. 6. Heard both sides. In the matter of drawing the electric line by the Corporation, they have all the authorities under the Telegraph Act as notified. As per Section 10 of the Indian Telegraph W.A. No.269 of 2010. - 4 - Act, 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. But such powers shall be exercised as per the provisos only for the purposes of a telegraph established or maintained by the Central Government or to be so established or maintained and then 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 in so exercising powers they 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 11 also empowers them for the purpose of examining, repairing, altering or removing any telegraph line or post, enter on the property under, over, along, across, in or upon which the line or post has been placed. In case of any dispute Section 16 provides the mechanism to resolve the dispute by approaching the District Magistrate. Sub-section (4) of Section 16 more particularly W.A. No.269 of 2010. **==> picture [20 x 9] intentionally omitted <==** empowers the District Magistrate to decide as to the person entitled to receive compensation and also to determine the compensation payable under due notice to the parties. 7. The word 'post' is defined in Section 3(5) of the Telegraph Act. The 'post' means a post, pole, standard, stay, strut or other above ground contrivance for carrying, suspending or supporting a telegraph line. Therefore, posts and towers are intended to support a telegraph line. Due to the fact that as in this case a 400 KV electric line is proposed, a tower is required to be constructed for supporting the line. As contemplated by the Telegraph Act and referred to above, it can be seen that the ownership of the land where such a tower is erected still continues to vest with the owner and it is only the right of user of the same that is vested with the Corporation and even as a result of the construction of the tower if the land owner cannot do anything in the said portion of the land occupied by tower, necessarily he will have to be paid hundred percent compensation which the appellant/petitioner is entitled to. It is open to the appellant herein to place all relevant materials and claim that there is hundred W.A. No.269 of 2010. **==> picture [20 x 9] intentionally omitted <==** percent diminution in land value and claim compensation for the same and if he is not satisfied with the compensation determined, he can approach the District Court by filing an Electricity O.P. As regards the objection that is raised against the drawing of the electric line, it is the District Magistrate to decide the same. Thus disputes centering round the compensation payable for diminution of the land value or trees cut if any, awarded by the Tahsildar can be raised before the District Court by filing an Electricity O.P. as provided for under Section 10(d) of the Telegraph Act. But if there is any objection regarding the drawing of electric line, the District Magistrate will decide the same. Therefore the appellant has got ample remedy to vindicate his grievance under the provisions of the Telegraph Act before the appropriate forum. 8. In the circumstances, leaving open the right of the appellant to work out his remedy in terms of the provisions contained in the Indian Telegraph Act and in view of the fact that the learned Single Judge has only directed the District Magistrate to consider the petition for removal of the obstruction and the objection of the W.A. No.269 of 2010. - 7 - appellant, we do not find any reason to interfere with the said judgment. All the contentions, if any, may be looked into by the District Magistrate in the matter of removal of obstruction or objection to the same and in the matter of compensation payable, the District Judge will consider the same on application, if any, made by the appellant. Clarifying the above position, the writ appeal is disposed of. **P.R.Raman, Ag. Chief Justice** **C.N.Ramachandran Nair, Judge** vns