M.D.,M/S.Ramakrishna Poultry P.Ltd vs R.Chellappan & Ors

M.D., M/s. Ramakrishna Poultry P. Ltd. ...Appellant

Vs.

R. Chellappan & Ors. ...Respondents

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. The appellant is a Private Limited Company

engaged in the business of poultry farming which is

confined to the production of eggs. It has

constructed three separate sheds on Survey

Nos.242/2 and 249/3 in Nanniyur Pudur Village in

Karur District in the State of Tamil Nadu for 2

accommodating about 1.25 lakh layer birds. It is

the case of the appellant that it had invested a

sum of about Rs.6 crores in acquiring the lands,

erecting the sheds thereupon and acquiring the

birds for the purpose of starting the poultry farm.

3. At this juncture, it may be noted that the

lands on which the poultry farm was started by the

appellant, had been acquired in two stages. About

11 acres of land were acquired by the appellant-

Company on 23rd June, 2004 and about 4 acres were

acquired on 19th November, 2004.

5. At about the same time, the 3rd respondent, The

Power Grid Corporation of India Ltd. (hereinafter

referred to as `the Corporation') took up the work

of construction of a 400 KV Perambalur - Pugalur

D/C Line as part of the Neyveli Thermal Station

Expansion Project for evacuation of electricity

generated therein. In the process, transmission

towers were required to be installed in various 3

locations, some of which were private lands,

including the Patta lands of the appellant, where

its poultry farm is situated.

6. On 8th October, 2006, the appellant sought an

opinion from the Assistant Director, Department of

Animal Husbandry, regarding the effect on the layer

birds on account of emission of electro magnetic

fields from the High Voltage Transmission Lines

passing over the poultry sheds. According to the

said authority, the passing of High Voltage

Electricity Current Transmission Wires over the

poultry sheds would adversely affect the

performance and health of the birds in the long

run.

7. The appellant thereupon filed Writ Petition

No.6850/06 before the High Court, seeking a re-

alignment of the transmission lines so that either

the appellant's poultry sheds could be avoided or

the height of the tower/pylon could be raised. 4

Relying on an earlier order dated 18th January,

2007, passed by a learned Single Judge of the

Madras High court in Writ Petition No.49172/06, the

learned Single Judge of the Madras High Court by

his judgment and order dated 31st January, 2007,

disposed of the said Writ Petition, along with

other connected writ petitions, with liberty to the

writ petitioners to submit their objections, if

any, to the District Magistrate concerned, within a

period of two weeks from the date of the order. The

District Magistrate was directed to consider the

same in the light of the order passed by the Court

and pass an order on merits and in accordance with

law, after affording an opportunity to the

petitioners, as well as the respondents, to make

out their respective cases, within a period of six

weeks thereafter.

8. Pursuant to the aforesaid order, the District

Magistrate issued notice to the appellant and the

Corporation to file objections, if any. The 5

appellant filed its objections indicating the

damage that would be caused to the poultry farm, if

the transmission line was not shifted to avoid the

poultry sheds. The appellant asked for a small

deviation of the route of the power line in the

eastward direction, within his lands, so that

minimum damage was effected to the poultry farm.

On the other hand, the Corporation submitted that

no deviation of the transmission line from the

approved route of alignment was feasible. After a

spot inspection, the District Magistrate upon being

satisfied as to the damage that was likely to be

caused to the appellant's poultry farm, was of the

view that a slight shift in the alignment of the

power line from location No.145 to location No.144,

either westward or eastward, might not cause

extensive damage to the coconut trees or the temple

indicated by the respondents, while, at the same

time, it would not affect the health of the birds

in the poultry farm. Accordingly, by his order 6

dated 30th April, 2007, passed under Section 17(3)

of the Indian Telegraph Act, 1885 (hereinafter

referred to as the `Telegraph Act'), the District

Magistrate directed the Corporation to realign the

transmission power line in such a way that it did

not pass above the poultry sheds of the appellant.

9. Inasmuch as, the proposed realignment entailed

that the transmission lines would pass over a

portion of the adjacent plot belonging to the first

respondent, R. Chellappan, he challenged the said

order of the District Magistrate in Writ Petition

No.10259/07 on 19th November, 2007, and the same was

dismissed upon holding that the order of the

District Magistrate did not suffer from any

infirmity or arbitrariness. Aggrieved by the order

of the learned Single Judge, the first respondent

filed Writ Appeal No.522/08 which was allowed by

the Division Bench on consideration of the

provisions of Section 16 of the Telegraph Act and

holding that under the said provisions, the 7

District Collector had no power to direct change of

alignment.

10. Aggrieved by the said order, the appellant has

filed the present appeal.

11. The main thrust of challenge is with regard to

the jurisdiction of the District Magistrate to

direct change of alignment of a transmission line

under Section 16 of the Telegraph Act, which, under

the provisions of Section 51 of The Indian

Electricity Act, 1910, which is equivalent to the

provisions of Section 164 of the Electricity Act,

2003, empowers the appropriate Government to confer

on any Authority or person engaged in the business

of supplying electricity under the Act, any of the

powers which the Telegraph Authority possesses

under the Telegraph Act with respect to the placing

of telephonic lines or posts for the purpose of a

telephone established or maintained by the

Government or to be so established or maintained. 8

On behalf of the appellant it was submitted that

the Division Bench was wrong in holding that under

Section 16 of the Telegraph Act, the District

Magistrate had no power to change the alignment and

that the Division Bench had failed to notice that

the order of the District Magistrate was not under

Section 16, but under Section 17(3) of the said

Act.

12. Another ground of challenge was that the

impugned order of the Division Bench was contrary

to the earlier order dated 31st January, 2007,

directing the Corporation to approach the District

Magistrate concerned in each case for permission to

deal with the objections raised by the petitioners

with the further direction that the said District

Magistrate would consider the objections and pass

orders in accordance with the provisions which have

been indicated in the said order. It was also

urged that since the same had become final between

the parties, there was no scope for a contrary 9

order to be passed, as has been done in terms of

the impugned order of the Division Bench in Writ

Appeal No.522/08, holding that under Section 16 of

the Telegraph Act the District Collector was not

empowered to change the alignment.

13. The last ground of challenge was that the

Division Bench had lost sight of the fact that the

Corporation had, in fact, accepted the order passed

by the District Magistrate and has even acted

thereupon, as it had stated in its Counter

Affidavit filed in response to the writ petition

filed by R. Chellappan.

14. Mr. S. Ganesh, learned Senior counsel appearing

for the appellant, submitted that Sections 10 and

17 of the Telegraph Act have to be read

pragmatically to meet a situation where the

transmission line had already been erected and even

if the alternative prayer made by the appellant in

its writ petition was to be granted, the same would 10

not lessen the danger of the Electromagnetic Waves

created by the high power transmission lines

damaging the health of the birds in the poultry

farm and adversely affecting their egg-laying

capacity. Mr. Ganesh urged that such a prayer had

been made without the assistance of the opinion of

an expert, who has subsequently indicated in no

uncertain terms that even if the height of the

transmission lines was raised to double the height

to which it had been raised, it would still

adversely affect the egg-laying capacity of the

birds.

15. Mr. Ganesh vehemently submitted that the

application of the appellant being under Section 17

of the Telegraph Act, it was within the power and

jurisdiction of the District Magistrate to direct a

small deviation of the transmission line over the

appellant's own lands, the expenses wherefor would

be borne by the appellant, so as to avoid its

passing directly over the poultry sheds. Mr. 11

Ganesh also submitted that since the Corporation

was ready and willing to make a deviation over the

adjoining land belonging to Respondent No.1, except

for the alleged damage as may be caused to the

coconut trees and the temple on its revised route,

there was no reason why the same could not be

adopted in order to save the huge investment which

the appellant had already made in the poultry farm,

the loss whereof would completely cripple the

appellant's business, particularly, when the

poultry farm was already in operation before the

evacuation project from the Neyveli dam had even

been contemplated or started.

16. Learned counsel appearing for the Respondent

No.1 supported the order of the District Collector

but contended that since the interest of the public

at large relating to supply of electricity was

involved, it was necessary for the dispute to be

set at rest so that the transmission line could be

commissioned at the earliest opportunity. 12

17. On behalf of the Corporation, Mr. Parag

Tripathi, learned Additional Solicitor General

contended that the order of the District Magistrate

directing change in alignment of the transmission

line did not take into consideration various

factors, namely, that the transmission line which

would pass over the contiguous plot belonged to the

Respondent No.1 and bordered the plot of the

appellant.

18. Mr. Tripathi submitted that the electricity to

be generated by the Neyveli Thermal-II Expansion in

the State of Tamil Nadu has to be distributed by

the construction of a 400 KV D/C transmission line

from Neyveli to Pugalur comprising of 576 towers

with a length of 198 kms. connecting the Neyveli

Thermal Power Station II to Pugalur 400 KV Sub-

station. The estimated cost of the project was set

at Rs.691.83 crores. He also submitted that on 24th

December, 2003, the Government of India had, in 13

exercise of its powers conferred under Section 164

of the Electricity Act of 2003, passed an order

authorizing the Corporation 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

plants established or maintained, or to be so

established or maintained for transmission of

electricity or for the purpose of telephonic or

telegraphic communication necessary for the proper

coordination of work. Further more, M/s. Shyama

Power (India) Private Ltd. had already been issued

the Works Order for detailed survey on 9th June,

2004 and such work had been completed in the year

2004 itself. He submitted that the local public

was taken into confidence during the consultation

programmes organized by the Corporation on 2nd

October, 2004 and only thereafter, on completion of

the survey works, the route alignment was marked

along with vital landmarks, including the crossing 14

of the Cauveri river and the locations on which the

towers were to be erected. Mr. Tripathi contended

that despite having knowledge that the area was

marked for an overhead transmission line over

Survey Nos.249/1 to 249/11 and 242 of Nanniyur

Village, the petitioner went on to purchase the

lands on which the poultry farm was established on

23rd June, 2004 and 19th November, 2004. The learned

Additional Solicitor General also submitted that

the work of the project had advanced to a stage

where out of the total number of 576 locations, the

foundation work for erection of towers had been

completed in respect of 568 locations and towers

had already been erected at 553 locations.

Furthermore, out of the length of 198 kms., the

stringing work of the transmission lines had been

completed upto 171 kms. and, although, the

transmission line should have been commissioned on

or before the month of October, 2007, the same had

been delayed due to the present litigation. The 15

learned Additional Solicitor General also submitted

that the representation made by the appellant-

Company had been disposed of by the Corporation on

7th May, 2005 on the ground that at the time of the

survey work, there was no poultry farm in existence

and that it was not techno-economically feasible to

realign the transmission line at the advanced stage

of implementation. Mr. Tripathi urged that the

fact that the Managing Director of the appellant-

Company was a local man would also be evident from

the fact that the Certificate of Incorporation of

the appellant-Company indicates the plots in

question to be the address of the Company and it is

difficult to accept that the Managing Director of

the Company did not have any knowledge of the

ongoing project, which included large scale survey

work for finalizing the alignment and the route to

be taken, including the construction of

towers/pylons for carrying the transmission lines. 16

19. It was also submitted that the alternate prayer

made on behalf of the appellant-Company had been

duly considered and acted upon and the height of

the transmission towers in question had been raised

from 46.5 meters to 52 meters so that the gap

between the highest point of the construction and

the lowest point of the sag in the transmission

line was 30 ft. The same having been done, the

appellant should not have any further cause for

complaint.

20. Mr. Tripathi submitted that while passing the

order, purporting to be an order under Section 17

of the Telegraph Act, the District Magistrate had

failed to take into consideration that an order

under Section 17 could only be passed after the

erection of the towers and that too for altering

the alignment within the same land. Further more,

the alternate plea of raising the height of the

towers, as also the technical feasibility regarding

the crossing of the transmission lines at the 17

Highway crossing and also the river Cauveri,

together with the higher cost provision for

realignment and the ecological aspect had not been

taken into consideration by the District Collector,

who passed the order on 30th April, 2007 in a purely

mechanical manner without giving any thought to the

various consequences that such order was bound to

give rise to.

21. Mr. Tripathi referred to the Full Bench

decision of the Kerala High Court in Mammoo Vs.

State of Kerala & Anr. [AIR 1980 Kerala 18], where

it was held that while Section 16(1) of the

Telegraph Act vested the District Magistrate with

certain authority which he would be entitled to

exercise in his discretion, such functions were

only of an administrative or executive nature. In

effect, it was held that the District Magistrate,

while exercising power under Section 16(1) of the

above Act, did not act as a Court, but in a purely

administrative capacity.

18

22. Reference was also made to the decision of the

Kerala High Court in Moidu alias Kunnippa Vs. The

District Magistrate and District Collector,

Malappuram and Ors. [MANU/KE/0410/1998], in support

of the submission that in order to attract Section

17 of the aforesaid Act, the telegraph line or post

in question would have had to be installed and

would have had to be shifted from one portion to

another portion of the same property.

23. Mr. Tripathi submitted that having regard to

the prayers made by the appellant in its Writ

Petition (MD) No.6850/06 before the Madurai Bench

of the Madras High Court, the alternate prayer for

raising the height of the tower has been acted upon

by the Corporation and the appellant could not,

therefore, have any further grievance against the

Corporation with regard to the carriage of the

transmission lines over the appellant's property. 19

24. Appearing for R. Chellappan, the Respondent

No.1, Mr. A.T.M. Ranga Ramanujam, learned Senior

counsel adopted Mr. Tipathi's submissions and

submitted that if the order of the District

Collector was accepted as having been passed under

Section 17 of the Indian Telegraph Act, then any

realignment of the transmission line would have to

be effected within the plot of the person at whose

instance such realignment is sought. The proposed

alternate alignment through the land of the

Respondent No.1 was not, therefore, permissible and

such proposed alternate alignment was liable to be

rejected.

25. On the other hand, Mr. R. Nedumaran, learned

counsel appearing for the State of Tamil Nadu,

while supporting the order passed by the District

Collector, urged that the erection of the towers

for carrying the transmission lines was for the

benefit of the public at large who stood to

benefit from the energising of the target area for 20

the improvement of the lot of the people of the

area. Mr. Nedumaran, however, also pointed out

that from the order of the District Magistrate and

Collector dated 30th April, 2007, it would be more

or less evident that the poultry sheds had been

constructed before the proposed route alignment.

From the order of the District Collector, Mr.

Nedumaran also pointed out that while the appellant

had no objection to the power transmission line

being taken over its lands, the District Collector

had taken into consideration the limited request

made on behalf of the Appellant-Company that the

route of the power line be diverted in the eastward

direction within the limits of its lands instead of

passing through the middle of the said lands which

would cause extensive damage to its poultry farm.

Mr. Nedumaran submitted that the Collector, by

invoking his powers under Section 17(3) of the

Indian Telegraph Act, 1885, directed the Appellant-

Company to realign the transmission lines in such a 21

way that they did not pass directly above the

poultry sheds of the Respondent No.1 situated at

S.F. Nos.242/2 and 249/3, Nanniyur Village, Karur

Taluk.

26. On consideration of the rival submissions made

on behalf of the respective parties, it is obvious

that a balance will have to be achieved between the

appellant's grievance and both the technical as

well as techno ecological feasibility of altering

the route of the transmission lines in keeping with

the directions given by the District Collector.

The simplest and the most ideal solution would have

been to alter the route of the transmission lines

so that they did not directly pass over the

appellant's poultry sheds, particularly when the

appellant is ready and willing to bear the expenses

of such alteration. However, since, according to

the Power Grid Corporation and its experts, that

would entail a deviation over the lands of the

Respondent No.1, R. Chellappan, the same gave rise 22

to the objections raised by R. Chellappan. Keeping

aside the technical aspect of the matter as to

whether the order passed by the District Collector

was one under Sections 16 or 17 of the Indian

Telegraph Act, 1885, in order to arrive at a

practical solution to the problem, the Power Grid

Corporation accepted the alternate suggestion made

on behalf of the Appellant-Company and raised the

height of the lowest point of sag of the

transmission lines between the two towers on either

side of the poultry sheds of the Appellant-company

from 46.5 meters To 52 meters, which in practical

terms means a clearance of 30 ft. between the

lowest point of the sag and the highest point of

the poultry shed. Of course, it has been contended

by Mr. Ganesh that according to the report of the

expert, even if the height of the tower was raised

to a 100 meters, the electro-magnetic field created

by the transmission of high voltage electricity

would still encompass the poultry sheds and 23

adversely affect the reproductive system not only

of the chickens but of all living things within

that zone.

27. However, what goes against the case of the

Appellant-Company is the fact that the purchases of

the land for starting the poultry business and the

erection of the poultry sheds were effected at a

point of time when the process of identifying the

route of the transmission lines was already in

progress and survey work was being undertaken. We

find it difficult to accept that the Appellant-

company did not have knowledge of the ongoing

project, which is for the benefit of a large number

of people of the area as against the interest of a

single individual. In view of the objections on

behalf of the Power Grid Corporation that the

deviation in the transmission lines, as suggested

on behalf of the Appellant-company, could not be

practically achieved, we are left with the next

best solution, i.e., to increase the clearance 24

between the lowest point of the sag of the

transmission cable and the top most portion of the

appellant's poultry sheds. It should not also be

forgotten that from the point of the sag on both

sides the cable moves upwards and the clearance

becomes even greater on both sides of the lowest

spot. During the hearing we had asked Mr. Tripathi

to confirm with the Engineers of the Power Grid

Corporation to explore the possibility of raising

the height of the towers even further to lessen the

damage, if any, that may be caused to the egg

laying capacity of the layers in the appellant's

poultry farm.

28. Although, the response appears to be equivocal,

we set aside the order of the Division Bench of the

Madras High Court impugned in this appeal and

direct the Power Grid Corporation to increase the

clearance indicated above from 52 meters to 56

meters so that the clearance between the lowest 25

point of the sag of the cable and the top most

portion of the poultry shed is not less than 40 ft.

29. The Appellant-Company will be entitled to such

compensation to which it may be entitled for use of

its lands or the damage caused thereto on account

of the erection of the tower/pylon for carrying the

transmission lines over the appellant's plant, in

accordance with the provisions of Section 10(d) of

the Indian Telegraph Act, 1885.

30. The appeal is accordingly allowed to the extent

indicated hereinabove.

________________J.

(ALTAMAS KABIR)

________________J.

(CYRIAC JOSEPH)

New Delhi Dated: 08.05.2009