(Prayer: Petition filed under Article 226 of the Constitution of India praying to issue Writ of Mandamus to forbear the respondents and their subordinates from laying the proposed 400 KV transmission lines from Kalivanthapattu to Ottiyampakkam through the Villages of Kayar and Vembedu without complying with the provisions of Sec. 68 of the Electricity Act 2003 and Sec.16 of the Telegraph Act 1885 and other applicable legal provisions as also consider the petitioners alternate proposal for laying the above stated transmission lines.)
Common Order
1.The petitioners own agricultural lands in Vembedu, Kayar villages, Tirupur Taluk, Kancheepuram District and the relief sought for in both the Writ Petitions are identical wherein the petitioners seek for issuance of a Writ of Mandamus to forbear the respondents from laying the proposed 400 KV transmission lines from Kalivanthapattu to Ottiyampakkam through the Villages of Kayar and Vembedu without complying with the provisions of Section 68 of the Electricity Act 2003 and Section 16 of the Telegraph Act 1885 and also consider the alternate proposal given by the petitioners for laying the above stated transmission lines.
2. Since the grounds raised in both the Writ Petitions are identical it would suffice to refer to the facts in W.P.No.16620 of 2015. In the said Writ Petition, there are 12 petitioners who are all owning agricultural lands and carrying on agricultural operation in Kayar and Vembedu villages. The second respondent, TANTRANSCO, has initiated a proposal given by the Team India Tower Lines Pvt Ltd., to be executed by the fourth respondent, M/s.Gammon India Pvt. Limited for laying a High Tension Transmission Line (HTTL), from Pugalar to Ottiampakkam village, which is to pass through Vembudu and Kayar villages. It is stated that the line which is proposed to pass through Vembudu and Kayar villages is a sub-component of the project to a length of 24 Kms connecting Kalivanthapattu to Ottiyampakkam at a tentative cost of Rs.31.2 crores. The proposed line is to evacuate power for private companies at Sholinganallur and Siruseri. As the project was a HTTL project huge pits have to be dug in the agricultural lands and each pit will cover an extent of 36 cents and excavation being done to a depth of 20ft and later covered with 54,000cft of concrete. According to the petitioners, digging of such huge pits and filling them to concrete would cause severe damage and obstruction to the underground water streams which charge the shallow percolation wells. Therefore, it is submitted that the route through, which the proposed HTTL is to be laid would cause immense damage to the lands and this could have been avoided, had the alternate route through Poromboke lands, which are situated near the Periphery of the village been utilised. Further, it is stated that if the alternate route is adopted the distance will be only 18kms and would also result in saving public money to the tune of about Rs.8 crores. Thus, the petitioners and the villagers raised their objections to the proposal and the respective village Panchayat unanimously passed resolutions objecting to the proposal. While so, one of the villager by name K.G.Mohanaraman, approached the National Green Tribunal, (NGT) Southern Bench and filed an application in Application No.33 of 2014. The respondents resisted the application based on reports submitted by the Revenue officials stating that the tower were to be constructed on fallow lands. The validity and authenticity of these reports are questioned by the petitioners stating that they are not duly authenticated by any Government seals and it is on plain paper. Further, it is stated that these reports are false, since the adangal extract shows that all the 11 sites proposed are under cultivation. Further, the report has falsely stated that there are only 110 trees whereas there are 1557 fully ground trees of 50 different varieties and about 40 acres of land are cultivated with Casuarina trees and there are about 1,60,000/- such trees. It is submitted that though the application was dismissed by NGT by order dated 22.04.2015, liberty was given to the applicant to approach the appropriate forum for necessary relief if so advised. The petitioners would state that they are not re-agitating the environmental issues, which were projected before the NGT, but have filed these Writ Petitions as proposed installation of towers/lines is in violation of several statutory provisions and legal safeguards.
3. Mr.N.L.Rajah learned Senior counsel assisted by Mr.K.Balu, learned counsel appearing for the petitioners submitted that there is no proper approval given by the Appropriate Government under Section 68(1) of the Electricity Act, 2003 (Act), as the statute mandates permission from the State Government. Further, it is submitted that even before the NGT, the respondents have not been able to produce copy of the approval issued under Section 68 of the Act, for laying the transmission lines. It is further submitted that the Rules enacted under Rule 67(2) of the Rules, cannot be Rules under Section 68, as those rules address completely different circumstances. Therefore, it is submitted that as on date, there are no rules to regulate the exercise of powers under Section 68 and therefore the provision of Section 12(1) and Section 12(2) of the Electricity Act, 2010, would continue to apply. In such circumstances, there is a prohibition on the licensee, the first respondent from erecting transmission lines without the approval of the owner of the land. While repealing sections of the Electricity Act i.e., Section 185 of the Act, make it clear that Section 185 (2)(b) of the Act, that the provision of the Section 12 to 18 of the Indian Electricity Act and the Rules made thereunder shall have effect, until the Rules under Section 67 to 69 of the Act are made. It is further submitted that even assuming without admitting that the Works of Licenses Rules, 2006 apply, the petitioners have not been approached for their consent and therefore, erection of transmission towers without consent of the petitioners is in violation of the Rule 3(1) of the Works of Licensee Rules 2006. It is further submitted that if the respondents contend that Works of Licensee Rules 2006 would not apply, since an order has been issued on 23.02.2012, empowering TANTRANSCO and TANGEDCO to exercise powers of a Telegraph Authority under Section 164 of the Electricity Act 2003, when the petitioners resist the proposed erection of towers, permission from the District Magistrate has to be obtained under Section 16 of the Telegraph Act 1885. Laying emphasis on the alternate route suggested by the petitioners, the learned counsel points out that 456 acres and 72 cents of Poromboke land could be utilised but the same is not being done under the false pretext that 285 acres is a reserved forest. This according to the petitioners is a deliberate misrepresentation resulting in serious violation of the public trust doctrine. Furthermore, it is submitted that the proposed transmission line is for the backlog of power to an extent of 509.5MVA to be used by 100 software companies and not intended for general public as initially advertised. In paragraph 22 of the affidavit filed in support of the Writ Petition, the petitioners have set out the comparison of the impact between the route proposed by them and one proposed by the respondent and it is submitted that the proposal given by the petitioners is far less destructive and failure to consider the same, has violated the petitioners' rights under Article 21 and 300A of the Constitution. Further, it is submitted that the petitioners and the villagers have met the respondents several times and represented for considering the alternate route and submitted a detailed representation on 25.05.2015 to the third respondent which has not evoked any positive response. Therefore, it is submitted that this Court should interfere in the matter and grant the relief sought for by the petitioners.
4. The learned counsel appearing for the petitioners referred to the decision rendered by Hon'ble Mr.Justice V.Ramasubramaniam in the case of R.Santhanaraj and Anr., vs. The Chief Engineer, Non-Conventional Energy Source, and Ors., in W.(MD) No.8844 of 2011, dated 08.11.2011, wherein the learned Judge on a detailed analysis of the relevant provision has set out the procedure that has to be adopted in such cases and in this regard, reference was made to paragraph 58 of the said order. It was pointed out that in sub-para (iv) of para 58, the Court held that in cases where powers are conferred upon the licensee under Section 164 of the Electricity Act, 2003, the provisions of the Rule 3(1) to (3) of the Works of Licensees Rules, 2006, will not apply. In other words where the appropriate Government had conferred upon the licensee the powers of a Telegraph Authority, the licensee need not take re-course to the procedure prescribed under Rule 3(1), (2) and (3) of the Works of Licensees Rules, but the licensee shall take recourse to the provisions of the Telegraph Act, 1885. It is pointed out that this observation will not apply to the petitioner's case as the petitioners' contention is that there is no Rule framed under Section 68(1) of the Electricity Act, 2003.
5. Mr.A.L.Somayajee learned Advocate General assisted by Mr.Abdul Saleem, learned Special Government Pleader for the second respondent referred to the status of the project and submitted that the project cost is Rs.2300 crores and the total distance is 748kms and as of now, the distance covered is 730kms and the project envisages 2058 towers of which 2036 towers have been erected and to a distance of 588kms, the same has been energised and the issue raised in these Writ Petitions is to a distance of 5Kms consisting of 11 towers and the project is already over due, as it had to be completed by June 2015. It is further submitted that the Writ Petitions are not maintainable as they are barred by the principles of constructive resjudicata, as the same matter was dealt with by the NGT as well as by the Hon'ble Supreme Court and the representations given by the petitioners 1 to 4, 6, 7 and 11 was the basis of the earlier litigation and therefore, the petitioners are not entitled for any relief before this Court. In this regard, copy of the representation submitted by the petitioners filed in the typed set of papers were referred to and the observations made by the NGT in its order were also relied upon and it is submitted that once over again the same issues cannot be re-agitated before this Court. Further, it is submitted that the applicant before the NGT challenged the order passed by the Tribunal in W.P.No.13844 of 2015 and the said Writ Petition was dismissed as withdrawn and the Civil Appeal filed by the said applicant before the Hon'ble Supreme Court in C.A.No.4466 of 2015 was dismissed by order dated 19.05.2015. Further, elaborate reference was made to the findings recorded by the NGT that 80% of the lands in aggregate in both the villages of Kayar and Vembedu were lying vacant. Further, it is submitted that the liberty is granted by the NGT to approach the appropriate forum was only for compensation. Further, with regard to the alternate route suggested by the petitioners, the second respondent has informed the said appellant Mr.Mohanaraman, by proceedings dated 07.02.2014 that it is not feasible of consideration. Reference was made to the decision of the Hon'ble Division Bench in Mary and Ors., vs. TANGEDCO and Ors., in W.A.No.1681 of 2014, dated 10.04.2015 and it is submitted that TANTRANSCO is competent to draw transmission lines or erect transmission towers and by doing so, TANTRANSCO does not acquire any right other than the user only in the property in question, keeping in view, causing little damages as possible. Further, that the right and the ownership of the petitioners over the land in question have not been taken away and their right to enjoy the land without any hindrance remains interact.
6. To support the contention that the present Writ Petitions are barred by principles of res judicata, reliance was placed on the decision of the Hon'ble Supreme Court in the case of M.Nagabhushana vs. State of Karnataka and Ors., reported in AIR 2011 SC 1113. Referring to the decision in the case of R.Santhanaraj (Supra), the consent of the owner is not required in the light of the Government Order issued in G.O.Ms.No.16, in terms of Section 164 of the 2003 Act. Placing reliance on the decision of the Hon'ble Full Bench of the Kerala High Court in the case of B.P. and T. Products Pvt., Ltd., vs. Kerala State Electricity Board and Ors.,, reported in AIR 1972 Kerala 47 (FB), it is submitted that it is not obligatory on the part of the competent authority who has been conferred the power of the Telegraph Authority under Section 10 of the Telegraph Act to issue a prior notice to the owner of the property over which the electricity supply line is proposed before exercising power under Section 10 of the said Act. It is further submitted that the project is a dedicated transmission line and not a overhead line, which has been held to be a separate category and the decision of Hon'ble Mr.Justice M.M.Sundresh in the case of P.Nachimuthu and Ors., vs. District Collector and Ors., in W.P.No.22967 of 2011, etc., dated 30.11.2011, has been followed by Hon'ble Mr.Justice S.Manikumar, in the case of D.Rajendran and Ors., vs. TNEB and Ors., in W.P.No.16799 of 2013, dated 29.11.2013. On the above submissions, the learned Advocate General prays for dismissal of the Writ Petition.
7. In reply, the learned counsel for the petitioner submitted that only one villager had approached the NGT though several persons have signed the representation and that cannot be held to be a res judicata and the petitioners being not parties to the earlier litigation, are entitled to approach this Court by way of these Writ Petitions for the stated relief. Further, by referring to the observations made by the Hon'ble Supreme Court in the case of M.Nagabhushana(supra), it is submitted that one against whom a judgment had formerly being given, if he bring forward the matter again must be answered by a plea of former judgment. It is pointed out that the petitioners were not parties before the NGT and therefore, the question of res judicata does not arise.
8. By way of further reply to the learned Advocate General pointed out that the representation given on 20.01.2014, was signed by all the villagers including the petitioners. On 03.02.2014, they moved the NGT and the application was dismissed by the Tribunal on 22.04.2015, which order was challenged before the First Bench of this Court which was permitted to be withdrawn as appeal lies to the Hon'ble Supreme Court against the order of NGT in the light of the decision of the Hon'ble Supreme Court in Civil Appeal No.7400 of 2013, (Union of India and Ors., vs, Major General Shri Kand sharma and Anr.,) decided on 11.03.2015. Thereafter, the petitioner/villagers moved the Hon'ble Supreme Court on 13.05.2015 and the appeal before the Hon'ble Supreme Court in C.A.No.4466 of 2015, was dismissed by the Hon'ble Supreme Court on 19.05.2015, holding that there is no merit in the appeal. Upon dismissal of the appeal, present Writ Petition was filed on 10.06.2015. The learned Advocate General refers to these facts to stress that the present Writ Petitions are clearly barred by principles of res judicata.
9. Heard the learned counsels appearing for the parties and perused the materials placed on record.
10. On a careful analysis of the submissions made by the learned counsels three category of issues would fall for consideration, first being whether the present Writ Petitions are barred by the principles of constructive resjudicata in the light of the order passed by the NGT in Application No.33 of 2014 (SZ), dated 22.04.2015, which order was confirmed by the Hon'ble Supreme court in C.A.No.4466 of 2015, dated 19.05.2015. The second category of issues would be whether proper approval was given by the appropriate Government under Section 68(1) of the Act; whether the Rules enacted under Rules 67(2) could be applied while exercising power under Section 68 of the 2003 Act and if not whether the provision of Section 12(1) and 12(2) of the 2010 Electricity Act would continue to apply; assuming that the Works of Licenses Rules 2006 apply whether the transmission towers could be erected without consent of the petitioners in violation of Rule 3(1) of the said Rules, in the light of the resistance made by the petitioner for the proposed project whether the permission of the District Magistrate is required to be obtained under Section 16 of the Telegraph Act, 1885. The third category of issue would be as to whether the respondents had taken note of the alternate route suggested by the petitioners, whether the reports of the revenue officials are authentic, whether there was misrepresentation of facts as regards the extent of Reserve Forest, the total area, which is under cultivation and the number of standing trees etc and if the alternate route as suggested by the petitioners is to be adopted will it save private property and ultimately resulting in reduction in the cost of the project.
11. Though submissions were made by the learned counsel petitioner on issues Nos.2 and 3, the endeavour of the learned Advocate General is to throw out the Writ Petitions on the ground of resjudicata. Therefore, this Court is of the view that first category of issues could be considered at the first instance and the decision on the other two categories of issues would depend upon the conclusion, this Court may arrive at on the first category.
12. After the residents of the villages in question namely Kayar and Vembedu became aware of the project, the first representation that appears to have been sent to the respondent is on 20.01.2015. The said representation is by K.G.Mohanaraman and the general public of Kayar and Vembedu villages, Tiruppur Taluk Kancheepuram Distrust.
13. It is not in dispute that the petitioners 1 to 4, 6, 7 and 11 in W.P.No.16620 of 2015, and petitioners 3, 4, 9, 12, 18, 21, 22 and 25 in W.P.No.16786 of 2015 and petitioners 1, 4 and 27 represented by their husbands were signatories to the said representation. The representation is in vernacular and on a reading of the said representation, it is clear that the same has been submitted by both the villagers and it is not an individual representation of K.G.Mohanaraman. The representation dated 27.01.2014, given to the District Collector is also on behalf of the villagers and there are 100 signatories to the said representation and copy of which is said to have been handed over to the Superintending Engineer of the respondent Board. As these representations did not evoke any positive response, an application was filed before the NGT (SZ) under Section 18(1) read with Section 14 and 15 of the National Green Tribunal Act 2010, being Application No.33 of 2014. The applicant before the NGT was K.G.Mohanaraman. While narrating the facts in brief, the applicants state that he is an agriculturist owning agricultural lands in Kayar village and he is a resident of the village and in his capacity as a Ex-Councillor and Ex-President and social worker of the village, he has filed the application for consideration of the Tribunal. It is further stated that the people of the locality as well as the village Panchayat were never made aware about the proposals for laying the HTTL. It is further submitted that the farmers on coming to know of the project, objected to the same and submitted their objections to the Chairman of the second respondent and to the District Collector and that the village Panchayats of Vembedu and Kayar as well as the Grama Sabha of the villages have passed resolution objecting to the project.
14. Further, it is stated that TANTRANSCO did not consider the objection of the farmers and their suggestions about the alternate route suggested by them. While stating that the proposed project would have an impact on the agricultural lands, general averments have been made regarding the surface soil fertility, water depletion, ecological loss, fire hazards, electric shock and safely, economic in-surgency. The grounds raised are not applicant specific, but projects the grievances of the public of both the villages. The factual averments set out in the application have been reiterated in the grounds which all clearly show that K.G.Mohanaraman, though filed application before the NGT in his individual name he was not projecting his individual grievance, but it was a collective representation on behalf of the villagers of Kayar and Vembedu. The said applicant did not furnish details of his individual land holdings or stated as to how he is personally affected. The grievances expressed were general in nature on behalf of all villagers. The second respondent and the District Collector filed their reply affidavits disputing the correctness of the stand taken by the applicant. From a perusal of written submissions made by the applicant before the NGT, it is evident that it is the cause of the villagers, had been projected before the NGT and not that of an individual. At this juncture, this Court has to point out that the affidavit filed in support of the Writ Petition is on identical lines as that of the grounds raised before the NGT. In fact, some of the paragraphs are verbatim repetitions of the averments in the application before NGT.
15. NGT framed four questions for consideration for decision namely (i) whether the application was maintainable, since it is barred by limitation; (ii) whether the application is maintainable, since it is outside the jurisdiction and powers of Tribunal; (iii) whether the applicant is entitled to get an order restraining 4th and 5th respondents from laying a HTTL and (iv) to what relief the applicant is entitled to.
16. The NGT answered question Nos.(i)and(ii), in favour of the applicant and while doing so, it has pointed out that the applicant is an agriculturist from Kayar village and he has filed his application in his capacity as Ex-Councilor and Ex-President of the village Panchayat and has represented the other agriculturists in both Kayar and vembedu villages. Further, the Tribunal pointed out that the applicant pleaded that the farmers of the villages will be put to untold hardship and agony in the event of implementation of the project by cutting down the Casuarina trees and other plantations and permanently preventing agriculturists for rising crops and would cause continuous suffering to farmers. The NGT also noted that the applicant has specifically pleaded that the interest of the poor farmers has to be safeguarded and also the ecological balance has to be maintained by safeguarding the agricultural lands.
17. While considering question Nos.(iii) and (iv), the NGT took note of the report submitted by District Collector as regards the status of the project, the classification of the land and the report submitted pursuant to a joint inspection made on 26.09.2014 and noted that the joint inspection report contains the details of survey numbers of the lands, the name of the land owner along with patta number in which the proposed transmission line would pass through, the nature of crops, if any cultivation is being carried etc. In paragraph 39 at pages 38 to 55 of the order of the NGT all above mentioned details have been furnished in a tabulated form and the details pertain, 374 survey numbers. In fact, the joint inspection report submitted on 26.09.2014, was pursuant to a direction given by NGT in which the District Collector with the Revenue officials and the officials of the respondent Board were present and on consideration of the details, the NGT recorded a factual finding that out of 375 pieces of land, 277 were found vacant during joint inspection, which works out 74.06%; Casuarina trees were planted in 44 bits of land which works out to 11.76%; paddy and other cultivation in 41 pieces of land which accounts for 10.96%; and 13 pieces of land being 3.22% utilised for other purposes like road etc. These were the details with regard to Kayar village. In respect of Vembedu village out of 40 pieces of land, 37 pieces of land are vacant which is 92.5% and three pieces of land have been planted with Casuarina, which accounts for 7.5%. Thus, the NGT recorded a finding of fact that out of the 14 proposed locations, 12 locations were found to be vacant. After recording such factual finding, the application was dismissed. After dismissing the application, the NGT observed that liberty is given to the applicant to approach the appropriate forum for necessary relief, if so advised.
18. The learned counsel for the petitioner would contend that the Writ Petitions are not barred by resjudicata, as the Writ Petitioners were not the applicants before the NGT, in any event NGT has granted liberty to approach the appropriate forum and the Writ Petitions are maintainable. Both these submissions are not tenable in the light of the facts pointed out supra, wherein it is clear that the applicant before the Tribunal did not agitate the matter in his individual capacity, but collectively on behalf of villagers of both villages and he being an Ex-Councillor and Ex-President of the village spearheaded their cause. 80% of the present petitioners were signatories to the representation submitted to the authorities just prior to approaching NGT. Therefore, once over again the present petitioners cannot be permitted to re-agitate the same issues. The grounds raised in the Writ Petitions are largely verbatim repetition of the grounds raised before the NGT. Therefore, the present attempt of the petitioners is clearly barred by resjudicata. So far as the liberty granted by the NGT, it can at best be an avenue left open for the aggrieved person to claim compensation. To state that the said liberty would ensure in favour of the petitioners to approach this Court is a far-fetched plea and deserves to be rejected.
19. The applicant challenged the order passed by the NGT before this Court in W.P.No.13844 of 2015. The matter was heard by the first Bench of this Court and in view of the judgment of the Hon'ble Supreme Court in the case of Major General Shri Kandsharma and Anr.,(supra), the Writ Petition was withdrawn to exercise the statutory right under Section 22 of the NGT Act. Thereupon, the applicant approached the Hon'ble Supreme Court by filing an appeal under Section 22 of the NGT Act. The grounds raised before Hon'ble Supreme Court are identical to that of the grounds raised in the present Writ Petitions. In fact, additional details were placed before the Hon'ble Supreme Court. The legal pleas which are being raised before this Court, were also raised before the Hon'ble Supreme Court and the Hon'ble Supreme Court after considering the matter by judgment dated 19.05.2015, dismissed the appeal finding no merit in the same. Thus, the order passed by the Hon'ble Supreme Court being a speaking order as the Hon'ble Supreme Court held that there is no merit in the appeal and thus the order passed by the NGT stood confirmed on dismissal of the Civil Appeal. Therefore, it would be too late in the day for the petitioners to come forward with the present plea, raising identical grounds, which did not find favour with the NGT or the Hon'ble Supreme Court and cannot endeavour to convince this Court to take a re-look at the matter, thereby seeking to convert the jurisdiction of this Court, as if a reviewing authority over the order passed by the NGT.
20. As pointed out by the Hon'ble Supreme Court in the case of M.Nagabhushana(supra), that no one ought to be vexed twice in a litigation, if it appears to the Court that it is for one and the same cause. That a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive, determination of the questions litigated and should for ever set the controversy at rest. It was further pointed out that the principle of finality of litigation is based on the high principle of public policy and in the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end of litigation.
21. The Hon'ble Supreme Court in Forward Construction Company and Ors., vs. Prabhad Mandal reported in AIR 1968 SC 391, held that Section 11 of CPC applies to public interest litigation as well. This Court on facts has found that the issues raised before the Tribunal which had attained finality on the dismissal of the appeal by the Hon'ble Supreme Court are not only same issues, but is in respect of a case by and for and on behalf of the petitioners. Precisely for this reason, this Court has elaborately set out in the preceding paragraphs as to the basis of the application filed by Mohanaraman and he in the capacity of the Ex-President of the Panchayat sphere headed the cause.
22. In the light of the above discussion, it is held that the present Writ Petitions are clearly barred by resjudicata and the decision rendered by the NGT which order was confirmed by the Hon'ble Supreme Court would bind the petitioners as well as on facts, this Court has found that the application filed before the NGT was not on behalf of the applicant alone, but on behalf of all villagers which includes the petitioners herein. Further, all the issues which are sought to be agitated in the present Writ Petitions were canvassed before the NGT, the NGT appointed a joint inspection team to inspect the properties and submit report and the report was placed on record before the NGT, the parties were heard and it was found that out of 14 proposed locations, 12 locations where the towers are to be erected are lying vacant. This factual finding cannot be re-opened in the light of the fact that the order of the NGT has been confirmed by the Hon'ble Supreme Court. Furthermore, the NGT also considered the other two issues which were placed by the petitioners before it. In the light of the above discussion, the petitioners have not made out a case for issuance of a Writ of Mandamus as sought for.
23. In the result, the Writ Petitions fail and they are dismissed. Consequently, the interim order of status quo stands vacated. However, liberty is granted to the petitioners to pursue their claim for compensation. No costs. Consequently, connected Miscellaneous Petitions are closed.