Msr,J W.p v. Commissioner Of Income Tax And Another[1

HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO W.P.No.20317 of 2018 ORDER: Heard Sri J.V.Prasad, learned counsel for the petitioner, Sri N.Siva Reddy, learned Standing Counsel for respondent Nos.1 to 5 and the learned Government Pleader for Revenue appearing for respondent Nos.6 and 7. 2.Petitioner is a Company registered under the Companies Act, 1956. It was established to manufacture pseudo virgin plastic granules from waste plastics. It purchased land through registered sale deeds of extent Ac.16.75 cts in Revenue Sy. No.324 (P), Krishna Nagar Grampanchayat, Tadepalli Mandal, Guntur District, for the purpose of setting up of industry. After purchase of the land and after obtaining due permission, building sheds were erected for carrying out business of the petitioner. PETITIONER’S CONTENTIONS 3.Petitioner contends that officials of respondent Nos.1 to 5 and workmen of 8[th] respondent, in May 2018, unauthorizedly entered the premises of the petitioner-company and tried to lay poles for erection of high tension power lines and towers. Petitioner contends that when its workmen opposed the action of the respondents stating that without prior permission of the petitioner and without authority of law, the respondents cannot lay such poles, the respondents left the premises and took away their material. 4.Petitioner contends that the proposal of the respondents to lay high tension wires through its land would deprive it of usage of 1000 feet of its land, approximately Ac.2.00 cts of its land would become waste, and it would not be able to make any construction for the purpose of industrial activity. It contends that adjacent land on eastern side of the subject property is agriculture land and the respondents can as well lay the high tension wires and poles through the said land and there would be no hindrance caused to the agricultural activity. It alleges that one high tension wire is already passing through its land and that the wire passed on the southern side of its land and considerable portion of its land has been rendered unusable; and allowing the respondents to lay high tension lines, wires and poles through its land again would render waste most of its land and this ought not be permitted. 5.Petitioner contends that subsequently on 11-06-2018, a representation was made by it to respondent Nos.6 and 7, that respondent no.7 called for a meeting of the officials of the electricity department and the petitioner wherein petitioner explained its difficulty. Petitioner alleges that though respondents assured to consider its objections, they did not do so and there was again a visit by workers of 8[th] respondent on 13-06-2018. It was stopped by the petitioner’s employees. Petitioner contends that the respondents seem to be victimizing the petitioner this action of the respondents is arbitrary. 6.Learned counsel for the petitioner Sri J.V.Prasad reiterated the said contentions and stated that even if Section 164 of Electricity Act, 2003 (for short ‘the Act’) empowers the appropriate Government to confer powers of the telegraph authority on the licensees such as the respondents, the petitioner ought to be given a reasonable opportunity of being heard before it is decided to lay the transmission lines through its property. He also contended that under the Electricity Act, 2003, Works of Licensees Rules 2006 have been framed which require prior consent of the owner or occupier to be taken and without obtaining such prior consent of the petitioner, the respondents cannot lay the high tension lines to its property. He relied upon a decision of the Supreme Court in Sahara India (Firm) Vs. Commissioner of Income Tax and Another[1]. THE RESPONDENTS’ CONTENTIONS 7.The respondent Nos.1 to 5 filed counter-affidavit refuting the above contentions. THE RESPONDENTS’ CONTENTIONS 7.The respondent Nos.1 to 5 filed counter-affidavit refuting the above contentions. 8.They contended that the Government of Andhra Pradesh accorded permission for the work of pumping of Kondaveetivagu Flood Water into Prakasam Barrage to safeguard the seed capital area from submergence in the limits of the Capital Region Development Authority in Guntur District; for the purpose of pumping the said water, the A.P. Transco had proposed 132/11 KV Sub-Station at Undavalli Village of Tadepalli Mandal, Guntur District and 132 K.V. D.C. Line on 220 K.V. multi-circuit towers is also proposed from the existing 132 K.V. Sub-Station at Tadepalli to the proposed 132/11 K.V. sub-station at Undavalli; the direction of the above line is designed in an economic way to reduce power line losses nearer to the Bee-Line (shortest route) by taking all the technical parameters into consideration after completion of preliminary survey and detailed survey. 9.Profiles and tower schedule of the said route were approved by the Superintending Engineer, O.M.C. Circle, A.P. Transco, Guntur vide Memo dt.18.04.2017; the pumping project is being executed by the Water Resources Department of the Government of Andhra Pradesh under the supervision of the A.P. Transco and it was awarded to the 8[th] respondent by inviting tenders on E.P.C. mode. They contend that the entire land proposed is passing on the Guntur Channel Bund belonging to the Water Resources Department of the State Government as there is no corridor available to bring the said line; a total of 22 towers are proposed for the said line and out of those 22 towers, 18 towers are coming on the Guntur Channel Bund and two towers are coming in the premises of 132 K.V. sub-station of A.P. Transco at Tadepalli; and the remaining three towers bearing location nos.A.P.3 and A.P.4 are coming in the agricultural land belonging to private persons. 10.They further contend that location nos.A.P.5 to A.P. 16 are coming on the Guntur Channel Bund including six numbers Tangent Towers in between A.P.5 and A.P.16; that location No.A.P.4 is proposed to be located in the land in Sy.No.324 (Part) of Tadepalli Village and Mandal, Guntur District and location No.A.P.3 is coming up in the land of the petitioner in which paddy crop was harvested in the second crop season of crop year 2017-18. 11.The respondents state that there is no crop or plantation in the petitioner’s land, that it is agricultural land and is abutting railway track and thereafter another railway track is also passing through; there is a distance of 150 meters in between the two railway tracks; so the proposed line has to cross two railway tracks between location Nos.A.P.3-A.P.4 and A.P.4 – A.P.5. They contend that there is no other way to cross the two railway tracks at a time duly maintaining the tower falling distance and vertical clearances with respect to the railway track and the traction power line and the line has to cross the railway tracks with barest minimum distance, i.e., nearer to 90 degrees. It is stated that the A.P. Transco will ensure that compensation as fixed by the District Collector, Guntur will be paid to the land owners on location Nos.A.P.3 and A.P.4, in whose lands the tower foundations are laid and lines are coming up. 12.According to them, in exercise of the power conferred under Section 164 of the Electricity Act, 2003, the Government of Andhra Pradesh vide G.O.Ms.No.115 Energy Department dt.07.10.2003 conferred upon the Transmission Corporation of A.P. Limited, the transmission and bulk supply license in the State of 12.According to them, in exercise of the power conferred under Section 164 of the Electricity Act, 2003, the Government of Andhra Pradesh vide G.O.Ms.No.115 Energy Department dt.07.10.2003 conferred upon the Transmission Corporation of A.P. Limited, the transmission and bulk supply license in the State of Andhra Pradesh, the powers for placing of the electric supply lines or electric plant for the transmission of electricity or for the purpose of telephonic or telegraphic communications necessary for the proper co-ordination of works that a Telegraphic communications necessary for the proper coordination of works that a Telegraphic Authority possessed under the provisions of the Indian Telegraph Act, 1885 (Central Act No.13 of 1885); that in exercise of the said power, the 1[st] respondent, viz., A.P. Transco, had approved a scheme by the Chief Engineer vide letter dt.10.02.2017 for extension of 50M.W. (55.56M.V.A.) power supply for pumping of Kondaveetivagu flood water into Prakasam barrage at Guntur District with an estimate cost of Rs.50.63 crores (power transmission works); that the Indian Electricity Act was repealed and in its place, new statute, i.e., the Electricity Act, 2003 was enacted and there is no provision to obtain prior consent from the owners of the property for laying electricity lines; that the Supreme Court in Power Grid Corporation of India Limited v. Century Textile and Industries Ltd and others[2] upheld the power of the Electricity Companies to lay the towers and lines without prior consent of the owner; that in fact, the Assistant Engineer, TLC Sub-Division-I of A.P.TRANSCO at Guntur has issued a notice to the petitioner through Registered Post informing that a tower is going to be constructed in its land bearing Sy.No.324 and further informed that the compensation as fixed by the revenue department will be paid; and that the said notice was returned unserved, and a fresh notice was issued on 10.06.2018 by duly pasting the same in the Panchayat Office. 13.The respondents denied that their employees entered the land of the petitioner in May, 2018 and the allegation of the petitioner that on account of passage of electricity lines through its land, its land will not be capable of any use and would become waste. It is also denied that petitioner cannot construct a factory in the land if the respondents are permitted to lay lines. It is pointed out that the place occupied for the tower is only ten cents and the remaining land can be used by the Writ Petitioner. They therefore prayed that the Writ Petition be dismissed. 14.I have noted the contentions of both sides. THE POINT FOR CONSIDERATION The question therefore which arises for consideration is: “whether prior consent of the petitioner is required to be taken by the respondents for laying high tension transmission line and towers through the petitioner’s land ?” 15. Section 164 of the Electricity Act, 2003 states as follows: “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 coordination 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.” 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 coordination 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.” 16.In the instant case, notification had been issued vide G.O.Ms.115 dt.07-10-2003 authorizing 1[st] respondent to place electricity supply lines or electrical plant for transmission of electricity conferring powers possessed by Telegraph Authority on it under the provisions of the Indian Telegraph Act, 1885. 17.Though Rule 3 (1) (a) of the Works of Licensees Rules, 2006 requires prior consent of owner of occupier before laying high tension electrical tower or lines through anybody’s land, sub rule (4) of Rule 3 of the said Rules itself states that Rule 3 will not effect the power conferred upon any licensee under Section 164 of the Act. 18.In Power Grid Corporation of India (2 supra), Supreme Court interpreted the powers of a licensee Power Grid Corporation of India Limited and held that a licensee, in whose favour there was a similar notification under Section 164 of the Electricity Act, 2003, need not obtain prior consent of the owner or occupier of any building or land on which electric transmission lines are being laid by a licensee under the said Act. 19.No doubt in Sahara India (Firm) (1 supra), the Supreme Court did say that where a person is affected with civil consequences, principles of natural justice should be applied even when the statute in question is silent by reading such requirement into the statute. It held that even an administrative order or decision in matters involving civil consequences, has to be made consistently with the rules of natural justice, and concept of natural justice has to be invariably read into administrative actions involving civil consequences, unless the statute, conferring the power, excludes its application by express language. 20.No doubt, as contended by learned counsel for the petitioner there was no contention raised in the Power Grid Corpn. of India Ltd (2 supra) case about the application of principles of natural justice and issuance of prior notice to the petitioner. But the said decision cannot be applied in the present case having regard to the direct decision of the Supreme Court in Power Grid Corpn. of India Ltd (2 supra) on the point and this Court cannot held that the said decision is per incuriam. 21.In any event, information had been given on 10-06-2018 by the Assistant Engineer, TLC Sub Division-I of the 1[st] respondent at Guntur to the petitioner informing about laying of the Z type tower in the petitioner’s land for the proposed 132 KV electricity transmission lines from Tadepalli to Undavalli. Therefore, the petitioner cannot plead that it was not informed about the laying of the said line. As held above, it cannot also insist upon its prior consent to be taken before such line has been laid. 22.Though learned counsel for the petitioner contended that alignment of the towers can be changed, in view of the detailed manner explained in the Counter affidavit about the manner in which the alignment of the towers has been fixed, and the corridor already demarcated, it would not be possible at this point of time to alter the same. 22.Though learned counsel for the petitioner contended that alignment of the towers can be changed, in view of the detailed manner explained in the Counter affidavit about the manner in which the alignment of the towers has been fixed, and the corridor already demarcated, it would not be possible at this point of time to alter the same. 23.However, it is not disputed by the respondents that as per provisions of Section 16 of the Telegraph Act, 1885 (which provides for determination of disputes as to payment of compensation by the jurisdictional District Judge). If the petitioner is not satisfied with the compensation offered by the respondents for laying the high tension Z type tower through its land, petitioner can make an application under Section 16 (3) of the Telegraph Act, 1885 and seek appropriate relief from the Court of the District Judge. 24.Accordingly, the Writ Petition is disposed of directing the petitioner to make a claim before the respondents seeking compensation for loss of usage of property and the respondents shall consider the same and fix appropriate compensation payable to the petitioner within six weeks from today. Petitioner is also granted liberty to avail the remedy under Section 16 (3) of the Telegraph Act, 1885 read with Section 164 of the Electricity Act, 2003, in the event, he is dissatisfied with the compensation offered to it by the respondents. No costs. 25.As a sequel, the miscellaneous petitions pending, if any, shall stand closed. __________________________________ JUSTICE M.S.RAMACHANDRA RAO Date: 24-07-2018 kvr