- (1.) WHETHER or not the licensee i. e. CESC Limited (hereafter CESC), on being resisted by the petitioner, is required to obtain permission of the District magistrate, South 24 Parganas to proceed further for installation of 220 KV double Circuit Overhead Transmission Line (hereafter the proposed transmission line) is the question that requires determination on this petition. The genesis of the dispute may be noticed. It appears from the counter-affidavit filed by CESC, to the extent the petitioner admits the same as matters of record, that: A) For evacuation of 250 MW power from the 3rd Unit being installed at the Budge Budge Generating Station of CESC, the need to install the proposed transmission line was felt for transmitting the quantum of power and to integrate the same with its existing transmission network. Accordingly, a suitable plot of land was identified near Kasba as the nearest possible land with respect to the load centre upto which the overhead line could traverse and ultimately be terminated to the 220/132 KV switchyard cum substation to be constructed thereon. B) During the walkover survey for identifying a feasible route of the proposed transmission line, CESC had to select a corridor by avoiding densely populated residential areas at Budge Budge, amtala, Baruipur, Sonarpur, etc. It was therefore proposed that the line, after emanating from Budge Budge Generating Station, should traverse South-West for a substantial distance before moving towards North to reach the land selected as aforesaid. C) The proposed transmission line was conceived with the following parameters and particulars :-i. Total route length 85 kilometers; ii. Total number of Towers 320; iii. Major crossings involved-a) Railway crossings 3 nos. b) Major road crossings 11 nos. c) Major Power Line Crossings; 33 KV Crossings 7 nos. 132 KV Crossings 5 nos. 220 KV Crossing 3 nos. D) The towers proposed to be erected would vary between 110 and 190 feet weighing 4,000 kgs. and 14,000 kgs. The base area required for such towers would vary between 2 cottahs and 6 cottahs of land approximately in the foundation underground. The technical limitation for positioning of a tower depends on the span length, the angle of deviation it can accommodate and the capacity to take the tension of the Conductors and earthwire. E) On June 27, 2005, an application was made by CESC to the principal Secretary, Government of West Bengal, Department of power for approval in respect of installation of the proposed transmission line for evacuation of power from the proposed 250 mw Unit No. 3 at its Budge Budge Generating Station. F) The Power Department of the Government of West Bengal forwarded the scheme to the District Magistrate concerned for comments/no objection by its letter dated July 19, 2005. G) The office of the District Magistrate forwarded the relevant portion of the scheme to the Block Development Officers (hereafter BDOs)of different Blocks as well as Chairmen of the Municipalities involved for their comments/no objection by Memo dated december 20, 2005. H) Thereafter, the respective BDOs of the Blocks and Chairmen of the municipalities forwarded their comments/no objection to the office of the District Magistrate which in turn forwarded its no objection to the Power Department, vide Memo dated July 3, 2006. I) In the meantime, however, on August 16, 2005, in terms of section 164 of the Electricity Act, 2003 (hereafter the 2003 Act)the State Government through the Principal Secretary, Power department and Non Conventional Energy Sources, authorized cesc to exercise all powers vested in the telegraph authority under Part III of the Indian Telegraph Act, 1885 (hereafter the 1885 Act ). The said order, published in the Kolkata Gazette on august 16, 2005 (hereafter the said authorization), reads as follows : o R D E R whereas CESC Limited, having its Registered Office at CESC house, Chowringhee Square, Kolkata-700001 (hereinafter referred to as CESC), is a Public Limited Company registered under the companies Act, 1956 and a licensee engaged in the business of distribution and generation of electricity, under the Electricity Act, 2003; and, whereas CESC is required to establish distribution system and to undertake supply of electricity through its distribution system : and, whereas placing and maintaining of electric lines or electrical plant under, over, along or across, posts in or upon any immovable property for the supply of electricity or for the purpose of telephonic or telegraphic communications necessary for proper co-ordination of works, the vesting and excise of the powers of the Telegraph authority under Part-III of the Indian Telegraph Act, 1885 (8 of 1885)with respect to the placing of the telegraph lines and posts established or maintained or to be so established or maintained are required to be conferred on the CESC. Now, therefore, in exercise of the powers conferred by Section 164 of the Electricity Act, 2003 the CESC is hereby authorized 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 plant established or maintained, or to be so established or maintained for the supply of electricity or for the purpose of telephonic or telegraphic communication necessary for the proper coordination of the works within the licensed area of the CESC. The above authorization is subject to compliance by the CESC to the requirements of the provisions of the Electricity Act, 2003 and the rules made thereunder. J) In terms of Section 68 of the 2003 Act, the State Government, through its Power Department, vide letter dated October 30, 2006 granted approval for installation of the proposed transmission line for evacuation of power from the 3rd Unit at Budge Budge generating Station under Section 68 of the 2003 Act, subject to fulfilment of the following conditions :-i. Erection work will be undertaken by CESC Ltd. as per the relevant Acts and Rules in force governing such transmission line. ii. Adequate opportunity shall have to be provided by cesc Ltd. for representation by the people likely to be affected by such work through Notification as per Statute. iii. Compensation as admissible shall have to be paid by cesc Ltd. to the affected people. This approval is also subject to CESC securing appropriate approval of (Deptt. Of Environment, government of West Bengal with requisite clearances from) East Kolkata Wetlands Management Authority, whenever necessary. K) In pursuance of the said requirements/conditions, on November 28, 2006, CESC caused a Notification (hereafter the said notification) to be published in various dailies, viz. The Telegraph, ananda Bazar Patrika and Ganashakti, notifying for information of all concerned its proposal to install the proposed transmission line. It was further notified that in order to provide adequate opportunity for representation by people likely to be affected by such work, representations, if any, may be made in writing within thirty days from date of the said publication to the Manager (Transmission Project), CESC Limited, and that representations made after that period would not be considered. Thus all persons likely to be affected by the proposed installation were put on notice and invited to lodge objections. This resulted in compliance with the conditions imposed in the approval letter dated October 30, 2006 issued by the State Government. L) The District Magistrate concerned by his letter dated March 13, 2008, had furnished to the Executive Director (Technical), CESC, a copy of memo dated March 13, 2008. By the said Memo, which was addressed to the Pradhan of an unspecified gram panchayat, it was sought to be conveyed having regard to installation of the proposed transmission line that the people likely to be affected would be at liberty to make representation and that they would be entitled to be compensated for financial loss suffered by them. It was observed therein that the people at large should be advised to be aware of such programme and to inform them that they would have the opportunity to claim compensation. M) As on July 7, 2009, it is the claim of CESC that 280 transmission towers have been erected out of a total route length of 85 Kms. from Budge Budge to Kasba and stringing of wires/conductors from one tower to the other has been done over 50 Kms. of land. The work is in full swing and according to it, erection of the rest of the towers as per the scheme and stringing of wires is emergently required to transmit benefits of functioning of the 3rd Unit of budge Budge Generating Station to the people at large. It has also been brought on record by CESC that a civil suit is pending before the competent civil court at the instance of one Dinmay Rawat claiming right, title and interest in respect of the properties alleged to have been purchased by the petitioner. A point has been taken by CESC that the petitioner has suppressed pendency of such suit as well as proceedings initiated by CESC under Section 144 of the Code and, therefore, not entitled to discretionary relief. The petitioner is a private limited company registered under the Companies act, 1956 and is engaged in construction business. It has undertaken a housing project for construction of flats/units for sale to people in the lower income category on plot nos. 2275 to 2350 under L. R. Khatian No. 2596 at Mouza nandabhanga within Bishnupur Police Station in the district of South 24 parganas (hereafter the housing project ). For executing it, the petitioner has been on a purchase spree of lands. Among others, it has purchased plot no. 2278 by a registered deed of sale dated November 13, 2006. Of all the 320 towers proposed to be erected by CESC, the present dispute relates to a tower proposed to be constructed on plot no. 2278 and drawing of lines over the other plots. The petitioner, admittedly, did not raise any objection in response to the said notification because it did not become the owner of most of the lands through which overhead transmission line was to be drawn as well as the lands on which transmission tower is proposed to be installed on the date of notification (paragraph 12 of the petition ).
(2.) IT is not in dispute that in March, 2009, both the petitioner as well as cesc had initiated proceedings under Section 144 of the Criminal Procedure code (hereafter the Code) before the selfsame Executive Magistrate against each other seeking prohibitory orders, who has passed apparently conflicting orders. However, the cause of action for moving the writ petition appears to be that the request of the petitioner for re-locating the tower proposed to be erected on plot no. 2278 to another side thereof was not accepted by CESC and it had assembled men and machinery to lay the foundation of the proposed tower. Accordingly, the petitioner has prayed for cancellation and/or withdrawal of any decision to install transmission tower on plot no. 2278 and to draw overhead transmission lines over plot nos. 2278, 2321, 2322, 2323, 2275, 2279, 2280 and 2282.
(3.) THE writ petition was heard finally in April, 2009 without exchange of affidavits and judgment was reserved. However, the order reserving judgment was re-called since I desired that the parties ought to consider several decisions of the Madras High Court, which I had the occasion to peruse courtesy Honble sridevan and Honble Reghupati, JJ. of the said Court. The writ petition was consequently placed on board afresh. Upon consideration of those decisions, Mr. Jayanta Kumar Mitra, learned senior counsel representing CESC sought opportunity to file counter affidavit. The prayer was granted and the writ petition was heard extensively on exchange of affidavits, since a question of law of substantial importance is involved. On this occasion, Mr. Mitra was called upon to address Court first.;