IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.        OF 2009 (Arising out of SLP(C)No.24713/2008)

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  

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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  

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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.  

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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  

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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  

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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  

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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.  

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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  

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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  

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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.  

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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.

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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  

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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  

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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  

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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.

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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  

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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.

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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.

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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  

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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  

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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  

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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  

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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  

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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  

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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

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