C.R. No. 5152 of 2008 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 5152 of 2008 (O&M)
Date of decision: January 30, 2009
Power Grid Corporation of India
.. Petitioner
v.
Rajbir Singh and others
.. Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Mr. I. S. Sidhu, Advocate for the petitioner.
Mr. Sudhir Mittal, Advocate for respondents No. 1 and 2.
...
Rajesh Bindal J.
Challenge in the present petition is to the orders, passed by the
learned courts below, whereby in an application filed under Order 39 Rules 1 and
2 of the Code of Civil Procedure, the petitioner has been restrained from
installing/ erecting tower bearing Nos. 64/6 and 64/7 in the land of the
respondents- plaintiffs.
Briefly, the facts are that the respondents filed a suit for permanent
and prohibitory injunction restraining the petitioner from installing tower Nos.
06408 and 06409 of 400 KW power transmission line being erected between Moga
and Bhiwadi (Rajasthan), situated in Village Daulatpur, Tehsil and District Hisar
and also restraining the petitioner-defendant from changing the site of shortest
route. Along with the suit, an application for interim injunction was filed which
was allowed by the trial Court. In appeal by the petitioner before the learned lower
appellate court, the order of the trial court was upheld.
Learned counsel for the petitioner submitted that vide notification
dated 27.11.2003 (Annexure P.1), the petitioner has been notified as a Central
Transmission Utility in exercise of powers conferred under Section 38 of the
Electricity Act, 2003 (for short, `the Electricity Act’). The petitioner is also a
licensee to transmit the power throughout the country. Vide order dated
C.R. No. 5152 of 2008 [2]
24.12.2003, in exercise of power conferred under Section 164 of the Electricity
Act, the petitioner was authorised to exercise power under the provisions of the
Indian Telegraph Act, 1885 (for short, `the Telegraph Act’) for the purpose of
erecting tower and laying transmission lines. The Government of India, vide
communication dated 9.6.2006, approved for implementation of Northern
Regional System Strengthening Scheme (NRSSS)-V, under which following
transmission lines were to be erected:
“Transmission Lines
* DILO of 400 KV S/C Hisar-Jaipur line at
Bhiwani 80 km
* 400 KV D/C Bhiwadi-Agra Line- 216 km
* 400 KV D/C Bhiwadi-Moga Line- 370 km”
The project was financed by foreign currency and domestic loans
plus internal resources. The disputed portion falls on 400 KV D/C Bhiwadi-Moga
Line -370 kilometers in length. Notice of the proposed line was published in
“Indian Express’ on 23.4.2007 mentioning the villages through which the lines
were to pass. Survey was conducted and the places were ear-marked where towers
were to be installed.
Jaswant Singh Lamba son of Dharam Singh Lamba, owner of a portion
of the land through which the transmission line was to pass through, raised
objections with the plea that there were kinnow orchards in the land owned by him
in which besides drip irrigation system, even rain gun had been installed to take
care of the plants from the fly ash from a nearby Thermal Plant. Considering the
fact that transmission lines were re-aligned, the revised scheme was approved by
the competent authority on 19.7.2008. Respondent No. 1 sent an undated
representation to the petitioner raising objection about change of alignment
accepting the plea made by Jaswant Singh. The representation was received in the
petitioner’s office on 23.7.2008. On 23.7.2008, a civil suit was filed for seeking
permanent and prohibitory injunction restraining the petitioner from installing
electric tower bearing Nos. 06408 and 06409 in the land of respondent No. 1
which was alleged to be against the approved scheme. A further restrain was
sought from changing the route of the transmission lines. The case sought to be
made out in the plaint was that the route was sought to be changed on a
representation made by Jaswant Singh, which was contrary to the factual position
on the spot and the same was accepted by the petitioner in his connivance. The
submission was that the project undertaken by the petitioner is of national
importance. The suit, which was filed by respondent No. 1, was not maintainable
C.R. No. 5152 of 2008 [3]
as neither any prior notice under Section 80 CPC was issued nor any exemption
was sought. Even otherwise, in terms of Section 145 of the Electricity Act, no
injunction could be granted by any Court. It was further pleaded that there is no
change in the number of towers passing through the land of respondent No. 1
which remained only two in number. It is only that a little bit route has been
changed to avoid damage to kinnow orchard in the land of Jaswant Singh Lamba.
Once respondents No.1 and 2 did not have any grouse for raising of two towers in
their land, they cannot possibly have any grouse for changing the alignment as it is
only right to use which is taken by the petitioner, otherwise the land beneath the
transmission lines can very well be used by the owner thereof. They will get the
compensation in terms of the lines passing through his land which is to be assessed
in terms of the provisions of the Electricity Act and the Telegraph Act. He further
submitted that though relief was claimed against Jaswant Singh Lamba in the suit,
but purposely he was not impleaded as one of the defendants so that the process
could be delayed. The change in the location of tower will not change the scheme
as such. It is merely a little bit change in the implementation of the scheme
regarding location of the tower considering the ground realities. Reliance was
placed upon E. Venkatesan and others v. Chairman, Tamil Nadu Electricity Board,
Madras and others, AIR 1997 Madras 64; Maharashtra State Electricity Board v.
Janardhan Bhausaheb Desai and another, AIR 1998 Bombay 75; Shiv Shakti Coop.
Housing Society, Nagpur v. Swaraj Developers and others, (2003) 6 SCC 659 and
Shanti Devi v. Haryana Vidyut Parsaran Nigam Limited, 2000(4) RCR (Civil) 584.
On the other hand, learned counsel for respondents No. 1 and 2
submitted that the rain gun, as was claimed to be existing on his orchard by
Jaswant Singh Lamba, to get the location of the tower changed from his land is, in
fact, not existing there. He further referred to the photographs placed on record to
submit that even the photographs do not show that any rain gun, as is alleged by
Jaswant Singh Lamba, has been installed. He further referred to Clause 2.2.1 of the
bidding agreement of tower package, which provided that re-alignment of the line
should be in the most economical manner.
Heard learned counsel for the parties and perused the record.
It is a case where both the courts below have not appreciated the fact
as to what disaster the orders passed by them was going to cause. The projects of
national importance creating infrastructure are not to be interfered with in the
manner, it has been done by the courts below. The courts have to be extra cautious
in dealing with such cases. As is evident from the material placed on record, the
dispute seems to be between respondents No. 1 & 2 and Jaswant Singh, who are
C.R. No. 5152 of 2008 [4]
neighbours. As per the original route of the transmission line, two towers bearing
No. 64/8 and 64/9 were to pass through the land owned by respondent No. 1 and
two towers bearing No. 64/6 and 64/7 were to pass through the land owned by
Jaswant Singh Lamba. A perusal of the site plan (Annexure P.21) shows that there
is no change as far as tower No. 64/9 to be installed in the land of respondent No.
1 is concerned. It is only the location of tower No. 64/8, which has been changed
with the change in the route to avoid damage to kinnow orchard in the land of
Jaswant Singh Lamba, where the lines have been shifted on one side of the land
owned by him. In the objections filed by Jaswant Singh Lamba, the matter was
examined by the competent authority and the change in the route was approved.
All what was sought to be argued by learned counsel for respondents No. 1 and 2
was that with the change in route, the transmission lines will affect more area in
the land owned by him, as compared to the land under original route, has no legs to
stand, as there is absolute right with the petitioner to instal tower in exercise of
powers under the Electricity Act read with Telegraph Act. Respondents No. 1 and
2 or any other land owner has right to receive compensation on account of user of
the land for installation of towers and the transmission lines. The plea that change
in route which led to increase in the length of transmission lines and will cost
more to the petitioner is not the domain of respondents No. 1 and 2 to examine or
to challenge in the court, as it is the job of the experts who have to consider every
aspect of the matter. In the present case, considering the objections raised by
Jaswant Singh Lamba and with a view to avoid loss to the kinnow orchards grown
by him, route was changed a little bit. No such type of damage has been claimed
by respondents No. 1 and 2 in their land.
As far as legal issues are concerned, though the suit was filed not
only against the petitioner but also Secretary, Minister of Power, but neither any
prior notice under Section 80 CPC was issued nor the prayer for exemption thereof
was made in the suit. Not only this, Section 145 of the Electricity Act clearly
mandates that no court shall grant any injunction in respect of any action taken or
to be taken in pursuance of any power conferred by or under the Electricity Act. In
the present case, the petitioner has been declared as a Central Transmission Utility
and is carrying on the job of laying transmission lines for NRSSS-V Scheme under
the Electricity Act. Accordingly, even in terms of the aforesaid provision, the
process of installation of transmission lines could not be stalled. Further, in my
opinion, no prejudice as such has been caused to respondents No. 1and 2 as with
the change in location of one of the towers in the land owned by them, the number
of towers in their land remains the same. Even if a little bit more line will pass
C.R. No. 5152 of 2008 [5]
through their land is inconsequential for the reason that they will get
compensation therefor. It is only about 200 meters length of line, which has been
increased in the land owned by respondents No. 1 and 2.
Even the contention raised by learned counsel for respondents No. 1
and 2 to the effect that the claim made by Jaswant Singh regarding installation of
rain gun is factually incorrect is also prima facie found to be misconceived for the
reason that in the order passed by the petitioner, as conveyed to respondent No. 1
vide letter dated 19.12.2008, in terms of the orders passed by this Court for
consideration of the representation made by respondent No. 1, it has been
specifically noticed that at the time of spot inspection, on request of Jaswant Singh
Lamba, apart from drip irrigation system, provision for rain gun system was also
found existing. It was further noticed in the communication that the certificate,
which was sought to be produced by respondents No. 1 and 2 from Horticulture
Development Officer, in which it was not mentioned that there exists any rain gun
system, Shri S. K. Brar, Horticulture Development Officer stated that the
subsequent certificate was issued on the request of respondent No. 1 only to the
extent that there existed provision for drip irrigation system in the fields of Jaswant
Singh Lamba, whereas in the earlier certificate, it is clearly mentioned that there is
a provision for rain gun system also, as was issued to Jaswant Singh Lamba.
With this material on record, I do not find that respondents No. 1 and
2 had not been able to make out a prima facie case for interim injunction in their
favour. The balance of convenience is in favour of the petitioner and in case the
interim injunction is confirmed in favour of respondents No. 1 and 2, the petitioner
will suffer irreparable loss and the same would certainly be against the larger
public interest as all what respondents No.1 and 2 were entitled to is only the
compensation for use of their land, which can very well be determined in terms of
money. The effort was only to stall the implementation of a prestigious project for
ulterior motive.
Accordingly, the impugned order passed by the learned court below
is set aside. The application for interim injunction filed by respondents No. 1 and 2
is dismissed.
The revision petition is disposed of in the manner indicated above.
(Rajesh Bindal)
Judge
January 30, 2009
mk