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SCA/2813/2010 1/ 37 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2813 of 2010
With
SPECIAL
CIVIL APPLICATION No. 2814 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
======================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To
be referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ? NO
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the civil judge ? NO
======================================
MANOJBHAI
DASRATHBHAI PATEL & ANR
Versus
POWER
GRID CORPORATION OF INDIA LTD & ORS
======================================
Appearance :
MR
RA MISHRA for Petitioners
MR MIHIR JOSHI WITH SUNIL S JOSHI for
Respondent Nos. 1 & 2
RESPONDENT NO. 3 IS SERVED
MR NIKUNT
RAVAL, AGRP for Respondent
No.4
======================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 30/03/2010
ORAL
JUDGMENT
1 Since
common issue is involved in both these petitions, both the petitions
are being heard and disposed of together by this common judgment and
order.
2 Special
Civil Application No. 2813 of 2010 is filed by two petitioners.
The petitioner No.1 is a national and citizen of India whereas the
petitioner No.2 is a Trust registered under the Bombay Public
Trust Act with the Charity Commissioner, Gujarat, for the object of
imparting education and other similar activities. The petitioner
No.1 is the owner and occupier of Block No. 1623 of moje Village
Jetalpur, Taluka -Daskroi and District and Sub-District Ahmedabad,
whereas land bearing Block No. 1596, is owned and occupied by the
petitioner No.2 Trust of moje Village Jetalpur, Taluka
Daskroi, District & Sub-District Ahmedabad, and both the
lands of the petitioners are situated just opposite to each other
across the Highway, called National Highway No.8.
3 The
petitioner in Special Civil Application No. 2814 of 2010 is also a
public trust, registered with the Charity Commissioner, Gujarat.
The land bearing Block Nos. 1054, 1055, 1056, 1057, 1058, 1059,
1065, 1046, 1047, 1048, 1049, 1050, 1051, 1052, 1066 and 1067 of moje
Village Jetalpur, Taluka Daskroi, District and Sub-District –
Ahmedabad and the land in question bearing Block No. 1593, which
is situated just adjoining, are owned and occupied by the said
Trust. In the said land, the Trust is running Primary, Secondary
and Higher Secondary Schools. Over and above the schools in the
said premises, there are several colleges run and managed by the said
Trust, namely, B.Ed., P.T.C., Government Hospital which is run and
managed by the Trust situated in the said plots and one Degree
Engineering College. Thus, it is an educational campus created by
the Trust.
4 In
both these petitions, the petitioners have prayed for quashing and
setting aside the impugned decision of Respondent No.4 dated
22.02.2010 passed on the application made by Respondent No.1
Company, dated 21.12.2009 and thereby quashing and setting aside
the impugned decision of laying High Tension Power Lines passing
through the lands of the petitioners and thereby permanently
restraining the respondent Nos. 1 and 2 from laying down said High
Tension Power Lines by erecting Towers on the land belonged to the
petitioners and further be pleased to direct the concerned
respondents to lay the High Tension Power Lines by shifting the same
to Karaba land of the Government, which is available and is situated
nearby to the lands belonged to the petitioners.
5 This
Court has issued Notice to the Respondents returnable on 10th
of March, 2010 and it was directed that respondent shall not
enter the land of the petitioners till the next date of hearing. The
said interim relief was continued from time to time.
6 It
is the case of the petitioners that the respondent Nos. 1 and 2 are
the State within the meaning of Article 12 of the Constitution
of India. The respondent No.3 is appointed as contractor to lay
down the disputed High Tension Power Lines, passing through
Jetalpur area, where the land owned and occupied by the petitioners
are located, to erect electric towers. The Respondent No.4 is the
State Authority, who permitted respondents to carry on the work of
laying down High Tension Power Lines. It is also the case of the
petitioners that somewhere in the month of July, 2009, Officers of
respondent No.1 along with Surveyor and Engineers of respondent
No.1 company , other officers and Lineman of respondent No.3 -one
Daulatbhai Dabhi have personally visited the lands of the
petitioners and appraised the petitioners regarding the project
contemplated by the respondents to lay High Tension Power Lines
passing through their lands and have collected soil sample of the
land. They have informed that if the petitioners have any objection
for laying of High Tension Power Lines passing through their lands
by erecting Electric Towers, they may do so by writing proper
application addressed to respondent No.2. The petitioners
thereafter inquired into the office of Collector respondent No.4
and learnt that several other farmers have also raised their
objections against laying of High Tension Power Lines from
private property, whereas the original project was to erect 400
KV Tower Station at Lamba Tekra, which is popularly known as
`Pirana Dahej-Jetalpur’ and as per the original plan, said High
Tension Power Lines was to be laid on Vijol – Lamba road parallel
to the said road, so that no private land is affected. However,
said plan appears to have been changed and now it appears that
respondents have decided to lay High Tension Power Lines through
private lands right from village Chausar leading towards village
Jetalpur, which comprised of various private lands, including that of
the petitioners.
7 It
is also the the case of the petitioners that since somewhere in the
month of July, 2009, Officers of the respondents visited at the
lands of the petitioners, the petitioners made a representation
dated 24.09.2009 addressed to respondent No.2, inter alia, pointing
out in detail to lay High Tension Power Lines from alternative
site and not from the private lands of the petitioners and
other similarly situated persons, particularly, in view of the fact
that, recently, said lands have been declared as `Commercial Zone’
by Ahmedabad Urban Development Authority and finalization of Town
Planning Scheme is under consideration of the Government which will
be shortly finalized and, therefore, if such a huge power supply
line is laid on the private lands of the petitioners and other such
affected persons having commercial value, which would amount to
depriving the petitioners without authority of law and without
following any procedure known to law, particularly, when
alternative site is available for laying High Tension Power Lines,
which would strike the balance and would not affect any private
property. It would also serve the purpose of respondents and they
would not be put to any inconvenience in continuing with their
project of laying High Tension Power Lines.
8 It
is the case of the petitioners that the petitioners have made
several representations to the respondent authorities, but no action
was taken by them with regard to the petitioners grievance. The
petitioners have earlier preferred a petition, being Special Civil
Application No. 10916 of 2009 wherein this Court has passed a common
order on 18.12.2009 issuing following directions:
The
respondent company shall approach the respondent No.4
District Magistrate within a period of one week from today.
After
such an application is moved, it will be open to the petitioners to
raise contentions before the respondent No.4 District
Magistrate, which will be considered in accordance with law.
If
the application is moved by the respondent company within a period
of one week, the respondent No.1 shall hear and decide the
application within a period of eight weeks from the date of
receipt of application after due consideration of the objections
of the petitioners.
This
court has not entered into the merits of the matter and, therefore,
the respondent No.4 may not be influenced by the order of this
Court.
It
is also clarified that till the issue is decided by the
respondent No.4, the field of the petitioners shall not be entered
into by the respondent company.
9 Pursuant
to the common Order passed by this Court on 18.12.2009, the
respondent No.1 Company approached the respondent No.4 by
application dated 21.12.2009, wherein it was prayed that, in the
exercise of the powers under Section 16 of the Telegraph Act,
1885, the Power Grid may kindly be permitted to proceed ahead with
the laying of transmission line from the lands of the objectors
situated in village Jetalpur at the earliest. The petitioners filed
their objections before the respondent No.4 on 22.02.2010, giving
details and elaborate reasons and also legal grounds stating that
the action of the respondent No.1 Company is totally illegal,
arbitrary, violative of principle of natural justice and without any
application of mind. The respondent No.4, while deciding and
passing the impugned order on the application of the Respondent No.1
company, has not given proper opportunity of hearing to the
petitioners as provided under Section 171 of the Electricity Act,
2003, under which no notice was issued to the petitioners. The
objections as directed by this Court were filed by the petitioners
and still no proper hearing was given by the respondent No.4 while
passing the impugned order. It is also the grievance of the
petitioners that the respondent No.4 has not given any reasons in
his order and by cryptic order, rejected the objections raised by
the petitioners.
10
It is this order of respondent No.4 which is under challenge in
the present petitions.
11 Mr.
R.K. Mishra, learned Advocate, appearing for the petitioners, in both
these petitions, has submitted that the respondent No. 4 has not
called the petitioners personally to hear them by issuing Notice
under Section 171 of the Electricity Act. The most important thing
about damage which the electricity lines are causing to the effect
of the petitioners, which are specifically stated in the report
submitted by the petitioners before the Respondent No.4 along with
their objections. The said report dated 08.04.2010 prepared by Dr.
Neil is on the subject of `Evidence that Electromagnetic Fields
from high voltage power lines and in buildings, are hazardous to
human health, especially to young children’. He opined in the
report that the power lines should not be passed through the lands
where the schools are situated and human beings are residing and the
damages which the power lines would be caused are so much
irreparable that in long term the children and the human beings
residing over the area will not be able to recover from the damages
due to the power lines which are passing over them. Mr. Mishra has
further submitted that the respondent No.4 without considering the
objections, without giving an opportunity of hearing to the
petitioners, even without issuing Notice to the petitioners for
hearing them, without application of mind and against the principle
of natural justice, vide impugned Order dated 22.02.2010,
decided the application of the respondent No.1 to the detriment of
the petitioners, once again rising cause of action to approach this
Hon’ble Court by way of the present petition.
11.1 Mr.
Mishra further invited attention of this Court to Rule- 3 of the
Works of Licensees Rules, 2006. The bare reading of Rule-3 of the
Works of Licensees Rule, 2006, makes it clear that, prior to laying
of a High Tension Power grid Line, the consent of the owner and
occupier of the building/land is a condition precedent. The
respondents have not obtained any consent of the petitioners.
Right from the beginning, the petitioners have objected to laying
of such line for various reasons stated in the objections raised by
the petitioners before the District Magistrate. Once, consent is
not given by an occupier of the building/land, it is incumbent upon
the concerned respondent to obtain permission in writing from the
District Magistrate or the Commissioner of Police or any other
Officer authorized by the State Government in this behalf. He has
further submitted that even at the time of issuance of Notification
in the Gazette, prescribing the procedure for laying such High
Tension Power Grid Line, at various places including for present
project, wherein one of the conditions specifically provides that
the above authorization is subject to compliance by the Power Grid
to the requirement of the provisions of Electricity Act, 2003 and
the Rules made thereunder. He has further submitted that the
respondents should either the lay out plan by making suitable
changes so as to avoid the possible damage apprehended by the
petitioners or to give full compensation prior to laying of lines
because the land in question is a commercial zone declared by AUDA
in 2002 and without following the procedure as contemplated under
the Rules, the respondent No.1 cannot continue with the work
contemplated by them.
11.2
Mr. Mishra further submitted that the project in question is a
very huge project as contemplated and for the said purpose huge
poles are required to be erected by providing considerable huge
foundation of RCC structure on the land belonging to the
petitioners. As a matter of fact, when this fact came to be known
to the present petitioners and other people, the panchayat, on
behalf of the village people, approached the respondent No.1
authority to suitably modify the route for lying such a High
Tension Line as contemplated by the respondent No.1 and even
suggested alternative route where a Government kharaba land facing
parallel to the contemplated site of respondent No.1 to lay High
Tension Line right from village Chausar till village Jetalpur, and
if such a High Tension Line is laid on Government Kharaba land, it
would not affect any of the private land of petitioners and other
farmers of village Jetalpur. However, the respondent No.1
remained adamant without any justification and, hence, the
petitioners constrained to approach this Court for appropriate
relief.
11.3 Mr.
Mishra further submitted that merely because the respondent No.1
is a high profile Government Company, cannot claim as a matter of
right as if they are possessing the licence to carry out the work
by laying High Tension Power grid Line through the private property
of the petitioners. Mr. Mishra in support of his submission has
relied upon a decision of the Kerala High Court in the case of
VALSAMMA THOMA vs. ADDITIONAL DISTRICT MAGISTRATE,
as reported in AIR 1998 (Ker.) 124, wherein it is observed that
the District Magistrate has to exercise its discretion
judiciously. He has to pass the order under Section 16(1) of the
Telegraph Act, after hearing the parties after taking such evidence
as is required with regard to the objections raised. The order
passed by the court should be a speaking order. The order should
reflect the objections raised by the parties and the
reasons given by the Magistrate for accepting or rejecting the
same. The order should also reflect the materials relied on by the
District Magistrate for arriving at the conclusion. If the
discretion is exercised by the District Magistrate as above, then
unless it is shown that the findings are perverse or that the
proceedings are vitiated by mala fides, this Court will not be
justified in interfering with such orders. This Court will not be
justified in substituting its own opinion. It is also worth
bearing in mind that this Court has not got technical
expertise and will be slow to interfere with such matters.
11.4 Mr.
Mishra submitted that the above procedures laid down by the Kerala
High Court have not been followed by the respondent No.4. The
impugned order was not served upon the petitioners in time with a
view to see that the same cannot be challenged by the petitioners.
The respondent No.4 was expected to consider the objections
raised by the petitioners with respect to exploring the possibility
of alternative site to lay High Tension Power Lines or to fix
compensation in respect of the land considering the site situation.
However, the respondent No.4 has concluded the whole issue by
stating that since the work in question involves public interest and
national interest and private interest should suffer and sacrifice.
Such a ruthless and insensitive approach adopted by the respondent
No.4 is absolutely arbitrary, illegal and violative of
principles of natural justice.
11.5 Mr.
Mishra, therefore, submitted that the impugned order passed
by the respondent No.4 cannot be sustained on any grounds and
deserves to be quashed and set aside.
12 Mr.
Mihir Joshi, learned Senior Counsel, appearing with Mr. Sunil S.
Joshi for the respondent Nos. 1 and 2 and Mr. Nikunt Raval, learned
Assistant Government Pleader for the respondent No.4 were heard
13 Mr.
Mihir Joshi has submitted that the respondent No.1 i.e. M/s Power
Gird Corporation of India Limited is a Government Company,
registered under the provisions of the Companies Act, 1956 and a
licensee engaged in the business of Inter-State transmission of
electricity under the Electricity Act, 2003. The Respondent No.1 is
a premium Central Government Organization, mainly engaged in
establishment and operation of Regional and National Power Girds, to
facilitate transfer of power within and across the regions. The
respondent No.1 was specified as Central Transmission Utility of
this country under the Electricity Act, 1910 and it is again notified
as such after coming into force of Electricity Act, 2003. The
respondent has established a sub-station at Dehgam, inter alia,
with a view to evacuate the power generated by Gandhar Gas Power
Project-II of the National Thermal Power Corporation of India Limited
in order to develop an integrated and efficient power transmission
system network in the country.
13.1 Mr.
Joshi further submitted that Ahmedabad is a major load centre in
the northern part of Gujarat. To meet the growing power requirement
of this area, a scheme i.e. Western Region System Strengthening
Scheme-VI, which, inter alia, included development of a new 400/220
KV Sub-station with 630 MVA capacity at Pirana near Ahmedabad, was
proposed and discussed in the 25th
meeting of the Standing Committee on Power System Planning in
Western Region, held on 30th
of September, 2006 at CEA, New Delhi. In order to facilitate
power supply (injection) at Pirana KV, direct interconnection
between Pirana and Dehgam
(existing) Grid Sub-station through a double circuit line was
agreed in the said meeting. Further, to improve reliability in
supply, the Pirana Sub-station would be required to be connected
with Sugen (1148 MW) generation project of M/s Torrent Power
Generation Limited through a 400 KV D/C line. In this way, Pirana
would be directly connected with the Grid at one side and
generation project at another side, to ensure reliability of
supply. In addition, establishment of Pirana Sub-station would
facilitate the long term requirement in this
area.
13.2
Mr. Joshi further submitted that the Board of Directors of Power
Grid, in exercise of powers delegated to it by the Government of
India through its O.M. No. 11/36/97-FIN dated October 09, 1997
(modified subsequently through O.M. No. 18(24)/2003-GM-GL.65 dated
August 5, 2005 from Department of Public Enterprises, Ministry of
Heavy Industries and Public Enterprises), have accorded approval
for Western Region System Strengthening Scheme-VI, in its 205th
meeting held on January 30, 2008. The said project involves the
establishment of transmission line i.e. Dehgam-Pirana 400 KV,
2 x 315 MVA Sub-station at Pirana. The estimated costs of the
said project is Rs. 340.72 crores and the same is scheduled to
be commissioned within 33 months from the date of investment
approval.
13.3 Mr.
Joshi further submitted that the Government of India, Ministry of
Power, has granted prior approval to the respondent No.1 under
Section 68 of the Electricity Act, 2003, for the installation of
overhead lines under Western Region System Strengthening
Scheme-VI by an order dated 08th
of February, 2007, and the said approval is granted subject to the
following conditions:
The
implementing agency will commence construction of the project
within 3 years, unless this term is extended by the Ministry of
Power.
Ministry
of Power may withdraw the approval before the expiry of the period
of 03 years after giving a one-month notice.
13.4 Mr.
Joshi further submitted that the petitioner relied upon Rule-3 of
the Works of Licensees Rule, 2006 in contending that since the
petitioner is objecting to the erection of tower in and/or laying
overhead line across their lands, the respondent No.4 is
required to hear the petitioner on their objections and thereafter
consider the same and it is only, thereafter, that the respondent
No.1 can proceed ahead with its work from the land of the
petitioners. It is submitted that the said contention of the
petitioners deserves to be rejected.
13.5
Mr. Joshi submitted that under the provisions of Section 68 read
with Section 164 of the Electricity Act, 2003, the Ministry of
Power, Government of India, by an Order dated 24th
of December, 2003, published in the Gazette of India, authorized
the respondent No.1 to exercise all the powers vested in the
Telegraph Authority under Part-III of the Indian Telegraph Act, 1885.
In view of the said provisions, no prior permission/consent of the
owner, as contended under the aforesaid
Rules, is required to be obtained by the respondent No.1 and no
permission of the District Magistrate is also required, as contended
under the aforesaid Rules, in view of the conferment of power of
the Telegraph Authority upon the respondent No.1 as stated above
and, therefore, no cause of action has arisen in favour of the
present petitioners and the petitioners have no enforceable right
to insist for the prayer made in the petitions and, therefore,
the petitions deserve to be dismissed in limine.
13.6 Mr.
Joshi further submitted that before transmission line is laid, the
respondent No.1 undertakes survey of route in three stages
according to the Manual of Transmission Line prepared by the
POWERGRID. The said survey is done in three stages,
namely, Reconnaissance (including walkover) Survey, Preliminary
Survey and Detailed Survey. In the process of reconnaissance
survey, a bee line is drawn
between the two sub-stations. The bee line which is a straight
line joining the two terminal points, is marked and a belt of width
10 kms (20 cms or the map), on either side of the centre line,
is shown. In the master mosaic, the bee-line, which is the straight
line joining two terminal points, should be neatly marked with
pencil. The bee-line represents the shortest length, although,
for various reasons, it may not be feasible to construct the
line along the bee-line. Keeping the bee-line
constantly in mind, alternative routes, with minimum unavoidable
deviations from the bee-line, are marked carefully. In doing
so, the following guidelines are kept in mind.
i) Allowing
minimum number of crossings of major rivers, railway
lines, national/state highways, overhead EHV power and
telecommunication lines.
ii) Avoiding
certain natural features like high mountainous terrain, steep
slopes with cliff and huge boulders, large lakes and marshy
places, etc.
iii) Avoiding
populated areas, narrow gaps between two villages, large cash
crop plantations and places of worship, etc.
iv) Avoiding
close vicinity of aerodromes, radio stations, radar centers,
rifle ranges, etc and also industrial installations where
pollution, due to chemical effluents emanating therefrom, will
affect the operation and maintenance of the power line.
v) In
view of the statutory requirements of the Forest (Conservation)
Act, 1980, avoiding, as far as possible, the reserved and
protected forests and wild life sanctuaries. Where unavoidable,
align the route so that the cutting of trees is kept to be the
minimum.
vi) Keeping
sufficiently away from continuous parallelism which
Telecommunication and Railway Telephone lines. If there is
continuous parallelism with existing HV or EHV line, it is
preferable to maintain a minimum separation of 300 meters.
13.7 It
is further submitted by Mr. Joshi that in the course of Walkover
Survey, after making the various feasible routes on the map, a
comparative study should be made on the basis of the following
data.
Route
length
Number
and type of angle points in each proposal indicating the
sharpness of each deviation as measured on the map.
Nature
and number of major crossings.
Deviation
in the line due to civil or military aerodromes and other
industrial installations.
Approach
to the line for construction.
Reaches
through protected or reserved forests.
Long stretches in cultivated fields. Close
parallelism with telecommunication and railway telephone circuits.
With these details in hand, a walkover survey has to be carried
out on all the alternative routes to arrive at the most
economical route and to update the topographical maps
available with the latest features observed during the survey.
13.8 Mr.
Joshi further submitted that in the course of walkover survey, one
is required to go over the area associated with the alternative
routes proposed and collecting features observed other than those
existing on the map. In addition, the indication on the following
features would also be required to be checked without fail.
i) Communication
lines
ii) Power
Lines
iii) Expanding
villages and towns.
iv) Rich
gardens and plantations, etc
v) Aerodromes,
radar centre, rifle ranges.
vi) Undulating
reaches unfit for erection and maintenance.
Vii) Roads
constructed and roads improved recently.
Viii) Steep
sloping terrain or steep slopes of hills.
ix) Large
tanks, lakes, water logged areas, etc.
x) Reserved
Forests and wooded areas with high trees.
xi) High
hillocks and stretches with large boulders.
Xii) Irrigation
wells likely to be made, tube well, pump houses.
Xiii) Forests
where menace of wild elephants persist
xiv) Private
property limits where right of way cannot be obtained.
xv) Availability
of saddles in still section for better crossing of valleys.
Xvi)
Ghat Roads in hills
xvii)
Gardens with grafted fruit trees.
Xviii)
Prohibited area declared under statutory regulations.
Xiv) Rocky
areas.
13.9 Mr.
Joshi, further submitted that on completion of the Walkover
Survey, the proposal of the most suited route is further
studied and approval is obtained from the head of Department of
Transmission before taking up preliminary survey.
13.10 Mr
Joshi further submitted that thereafter preliminary survey is done
and the object of the said survey is to transfer the route
selected on the map on to the ground with such deviation as may be
necessary due to sealed constraints. And in carrying out the same,
technical aspects are mainly taken into consideration. It is further
submitted that the work of the Route Alignment of the said
transmission line as well as the construction thereof is awarded to
the respondent No.3 and it
has, inter alia, after taking into consideration all the aspects as
aforesaid, submitted a report to the respondent No.1 who has
approved the Route No.I as the most convenient route. Mr. Joshi
has further submitted that while fixing the transmission like route,
only the most techno-economically feasible route is chosen
causing least damage after complying with the statutory
clearances and avoiding places of inhabitation, worship and
densely populated areas. Since the
transmission line requires a clear corridor of 48 meters only
i.e. 24 meters on either side from the centre of the
transmission line, all crops can be cultivated and the fruit bearing
trees of short height can be grown and building put up by
maintaining sufficient safety electric clearance as per the
Electricity Rules, 1956. It is further submitted that the
transmission line would not have any impact on human beings, animals,
plants etc or on the geological or ecological system beyond the
statutory clearance/norms provided by the Indian Electricity Rules,
1956.
13.11 Mr.
Joshi further submitted that the Government of India, Ministry of
Power, has accorded prior approval under Section 68(1) of the said
Act to the respondent No.1 by an order dated 07.12.2006 for the
proposed scheme i.e. Western Region System Strengthening Scheme IV
with the scope of work, inter alia, including the construction of
Dehgam-Pirana 400 KV D/C line comprising 139 Towers with a length
of about 47 kms at a total cost of Rs. 340.72 crores. The scheme
is duly approved by Government of India to provide quality power at
the large with greater reliability particularly to the
agricultural/ residential/commercial establishments in the State of
Gujarat in general and the areas in and around the city of
Ahmedabad in particular and will be a big boost to the industrial
and agricultural growth in the State and it is executing the
project after observing all legal procedures and as per the
existing provisions under the Electricity Act, Sections 10 to 19
of the Indian Telegraph Act, 1885, Indian Electricity Rules, 1956 and
the Work of Licensees Rules, 2006.
13.12 Mr.
Joshi further submitted that Dehgam to Pirana 400 KV D/C Power
Transmission Line has 139 Towers in the entire section, against
which foundation work has been completed upto village Chousar and
70% Towers have been erected and the erection of balance Towers is
in progress and the project is to be completed and commissioned by
January, 2010 as per Schedule, but because of litigation, the same
was delayed. It is therefore submitted that in view of the above,
80% of total work of foundation has been completed.
13.13 Mr.
Joshi further submitted that laying of High Tension Power Line
would not deprive the petitioners from making use of the land for
which they propose to use in future and the petitioners have
completely failed in making good their case as to how the
petitioners would not be able to make use of their lands. He further
submitted that the interpretation of Rule-3 of the Works of
Licensees Rules, 2006 put forward by the petitioners is not correct
especially in view of the conferment of the powers of the
telegraph authority under Part-III of the Telegraph Act, 1885, the
question of taking permission from the owner of the land and
approaching the District Magistrate under the said Rules for the
approval does not arise.
13.14 Mr.
Joshi further submitted that there is no substance in the
allegation that the laying of transmission line from the lands of
the petitioners will deprive the petitioners from utilizing the
plots in question in any manner whatsoever. It is further submitted
that there is no substance in the allegation that original power
supply line was to start from village Gamdi to reach Lambha
Tekra. He has also submitted that there is no substance in the
submission that if the said power station is constructed on Sardar
Patel Ring Road and if said power supply line is laid, then less
private lands would be affected. It is further denied that certain
influential people whose lands are situated on the Sardar Patel
Ring Road, by using their influence, have compelled the
respondents to change the
entire power supply line in such a manner that the respondents are
prepared to spend huge amount to lay power supply line in such a
way to reach Lambha Tekra in a circular route. Mr. Joshi further
submitted that it is not possible to lay 400 KV High Voltage
Transmission Line parallel to the highway as a clear corridor of
48 meters i.e. 24 meters on either side from the centre of the
transmission line, is required to be maintained which is generally
not available parallel to
the highway and even if the same is available, the same would take
away the frontage of all the lands over which the transmission line
is proposed to pass. It is further submitted that alongside the
highway, the LT lines of the GEB etc and telecommunication lines are
passing and according to the manual of transmission line, the
respondent No.1 is required to keep the line sufficiently away
from the continuous parallelism with the Telecommunication and
other LT lines. He has further submitted that the route which
the petitioners are suggesting leads towards more urbanized and
populated areas which, on the contrary, is required to be avoided by
the respondent No.1.
13.15 Mr.
Joshi further submitted that the route suggested by the petitioners
i.e. parallel to Government waste land (Nelia) is not at all
feasible for the transmission line of 400 KV. No such government
waste lands are available
continuously starching over the length of the said transmission
line. It is further submitted that laying of the 400 KV High
Voltage Transmission Line is highly technical subject and the route
alignment is done following certain highly technical norms as
described above and the same is done after the extensive survey. He
therefore submitted that any deviation from the same cannot be
done at the desire of the
persons as the same is not convenient to them.
13.16
Mr. Joshi further submitted that the action of the respondent Nos. 1
and 2 would not amount to depriving the petitioners of their
property and the same may not amount to breach of Article 300-A of
the Constitution of India. It is submitted that the said Transmission
Line would not cover the entire lands of the petitioners so as to
make them entirely unusable. It is only on some part of their
lands, towers would be erected by the respondent No.1 for which the
petitioners would be entitled to the compensation in the case of
their proving loss to them under Section 10 of the Telegraph Act,
1885. In the laying of the transmission line, the respondent No.1
does not acquire lands through which the same is to pass but only
get the right to make use of the same for the purpose of laying the
electric line for which full compensation is given for the damage
caused.
13.16 Mr.
Joshi further submitted that there is no substance in the allegation
of the petitioners that no proper hearing was given to the
petitioners and the respondent No.4 has not given any reasons in
the impugned order. He submitted that a bare perusal of the order
passed by the respondent No.4 clearly shows that the respondent No.4
has given reasons to pass such an order and opportunity of hearing
was also afforded to the
petitioners and, therefore, looking to the observations made
therein, no interference is required to be made in the impugned
order. He has further submitted that the report of Dr. Neil
Cherry on the effect of the Electromagnetic Fields does not appear
to have any statutory recognition and as provided in the relevant
Rules, in laying overhead
lines, the respondent No.1 is required to maintain sufficient
clearance from the ground level so as to avoid any damage to the
property and person and, therefore, the contentions raised by the
petitioners are devoid of any merits.
13.17 Mr.
Joshi further submitted that the petitioners have no prima facie
case in their favour. It is not technically feasible to divert the
line as suggested by the petitioners as alignment of transmission
line is done after detailed survey as per the topography of land
with a view to cause least disturbance to the existing villages.
Moreover, in a 47 Kms
transmission line, there has to be some diversion for the route
alignment and if such prayer
of the petitioners is accepted, then it would create a bad
precedence and others may also ask for the diversion of line. It is
therefore submitted that the respondents cannot be directed to erect
transmission line in a zigzag manner. It is further submitted that
80% of the foundation and nearly 70% of erection of towers is
completed and the projects involves the estimated costs of Rs.
340.72 crores. He has further
submitted that well before the filing of the present petitions,
the respondents had already
completed the work of foundation upto village Chausar, which is at
the distance of nearly 22 kms from village Kanbha. Therefore, it
is submitted that the interests of individuals are to give way to
larger interest.
13.18 In
support of the submissions, Mr. Joshi has relied on the decision of
this Court in the case of JIVIBEN MOTIBHAI PATEL vs.
EXECUTIVE ENGINEER (C & M), GUJARAT ELECTRICITY BAORD, BARODA
AND ANR, as reported in 37(1) GLR 470,
wherein it is held that looking to the provisions of Section 42, the
entire mechanism and the Scheme of Section 42 is that where the
sanctioned scheme gives powers, the Board or generating Company
shall exercise such powers. When the sanctioned Scheme does not
confer such power, the Board or the generating company has no option
but to take recourse to the provisions of Section 12 to 19 of the
Electricity Act. No doubt, in each case,
however, the Board shall be bound by the express provisions of
Section 17 of the Electricity Act. In view of Section 42 with Part
III of the Indian Telegraph Act, the generating company has also
such powers to fix poles, wires,
etc in the agricultural land of a private person and that person
cannot object either on the principles of natural justice or on the
ground of unauthorized user. All he is entitled to is compensation
provided for under the
proviso (d) to Section 10 of the Telegraph Act. It
is further observed that Section 51 makes a clear provision
empowering the State Government by an order in writing to confer
such powers of fixing of electric supply line, appliances and
apparatus for the transmission of energy or for the purpose of
telephonic or telegraphic communications
necessary for proper coordination of works, upon a public office,
Board or licensee or any other person engaged in the business of
supplying energy to the public under Section 28 of the Electricity
Act, as are vested in the Telegraph Authority under the Indian
Telegraph Act. Therefore, there is no doubt in holding that the
provisions of Section 51 override provisions of Sections 12 to 16
and 18 and 19 of the Electricity Act. Those powers given to the
State Government under Section 51 are undoubtedly wide and capable
of affecting powers sometimes prejudicially. The Court, therefore,
held that the State Government is empowered to give powers to the
Board or licensee for placing of electric supply lines, wires and
apparatus for transmission
and distribution of energy.
13.19 Mr.
Joshi further relied on a decision of this Court in the case of
JAYANTIKUMAR BHAGUBHAI PATEL & ANR vs. STATE OF GUJARAT &
ANR., as reported in AIR 2007 Guj 32, wherein after referring to
various decisions cited before the Court, it was held that the
petitioners have filed the said petition with an oblique motive and
for extraneous considerations. The Court further held that there is
no substance in any of the petitions and the same are accordingly
dismissed.
13.20 Mr.
Joshi further relied on a decision of the High Court of Andhra
Pradesh, in the case of G.V.S. RAMAKRISHNA & ORS. vs. A.P.
TRANSCO, REP. BY ITS MANAGING DIRECTOR AND ORS., as reported in AIR
2009 AP 158, wherein it is held that neither acquisition nor
consent required of owner for placing electric supply lines or
electric poles for transmission of electricity on or over private
lands.
13.21 Mr.
Joshi further relied on the decision of the Jharkhand High Court in
the case of AJAY MUNJAL MEMORIAL TRUST & ORS. vs. POWER
GRID CORPORATION OF INDIA & ORS., as reported in AIR 2008,
Jharkhand 34. The view taken by the Jharkhand High Court in the
aforesaid matter is also the same view as was taken by the Gujarat
and Andhra Pradesh High Courts.
14 Based
on the aforesaid factual background and the decisions of this Court
as well as other courts, Mr. Joshi has strongly urged that there is
no substance or merit in the petition and hence both the petitions
be summarily dismissed.
15 Having
heard the learned counsels appearing for the parties and having
considered their rival submissions in light of the provisions
contained in Electricity Act, 2003 as well as Indian Telegraphs
Act and Rules framed thereunder and having gone through the order
passed by the District Magistrate, Ahmedabad, on 28.02.2010 on the
application made by the respondent No.1 Company on 21.12.2009, the
Court is of the view that the District Magistrate has rightly taken
the decision of allowing the Respondent Nos.1 and 2 to lay High
Tension Power Lines by erecting Towers on the land belonged to the
petitioners and of directing the petitioners to co-operate the
Respondent Nos. 1 and 2 in the said project. There is no dispute
about the fact that a Scheme known as Western Region System
Strengthening Scheme-VI was proposed on 30.09.2006. The Government
of India has granted prior approval to the Respondent No.1 under
Section 68 of the Electricity Act, 2003, for the installation of
overhead lines under this Scheme by an Order dated 08.02.2007. It
has also come on record that the Ministry of Power, Government of
India, in exercise of power conferred under Section 164 of the
Electricity Act, 2003, passed an Order on 24.12.2003 duly published
in the Extraordinary Gazette, authorizing the respondent No.1 to
exercise all the powers vested in the Telegraph Authority under
Part-III of the Indian Telegraph Act, 1885.
16 On
an analysis of Section 67 and Section 164 of the Electricity Act,
2003, it is very obvious that whenever an order is passed by the
appropriate Government in exercise of the powers under Section 164
of the Electricity Act, 2003 for placing of electric lines for the
transmission of electricity, conferring upon any Public Officer,
licensee or any other person engaged in the business of supplying
electricity any of the powers which the telegraph authority
possesses under the Indian Telegraph Act, 1885 with respect to the
placing of telegraphic lines and posts for the purposes of a
telegraph established by the Government, such public officer,
licensee or any other person engaged in the business of supplying
electricity stands in the same position as regards the exercise
of power as the telegraph authority under the Indian Telegraph
Act, 1885. It is, however, true that in absence of such an order
under Section 164 of the Electricity Act, 2003, if a licensee i.e. a
person who has been granted a licence to transmit electricity or
to distribute electricity under the Act, proposes to place
electric lines, electric poles or other works necessary for
transmission or supply of electricity, Section 67 of the Electricity
Act, 2003 comes into operation and consequently it is mandatory to
obtain the consent of the concerned owner or occupier. In the
present case, Section 164 of the Electricity Act, 2003 has admittedly
been invoked and in exercise of the powers conferred thereunder,
the Government of India conferred on the Respondent No.1 the
powers which the telegraph authority possesses under the Indian
Telegraph Act, 1885. Consequently, the Respondent No.1, for the
purpose of laying High Tension Power Lines through the lands of the
petitioners, is competent to exercise all the powers possessed
by the telegraphic authority under the Indian Telegraph Act, 1885.
17 Section
10 of he Indian Telegraph Act, 1885 empowers the telegraph
authorities to place and maintain the telegraph lines under, over,
along or across and posts in or upon any immovable property.
However, the said power shall not be exercised in respect of any
property vested in or under the control or management of any
local authority without the permission of that authority. The
proviso (d) to Section 10 of the Indian Telegraph Act, 1885 further
makes it clear that while exercising powers conferred under
Section-10, the telegraph authority shall do as little damage as
possible and when it has exercised those powers in respect of any
property other than the property under the control or management of
the local authority, shall pay full compensation to all the
persons interested for any damage sustained by them by reason of
exercise of the said powers. It is also important to take note of
proviso (b) to Section 10 of the Indian Telegraph Act, 1885, under
which, the Central Government shall not acquire any right other
than that of user only in the property under, over, along, across
in or upon which the telegraph authority places any telegraph lines
or posts. Thus, it is apparent that the powers under Section 10
of the Indian Telegraph Act, 1885 can be exercised without
acquiring the land in question and the only right that can be
exercised is the right of user in the property and for the
purposes mentioned in that Section.
18 The
above discussion makes it abundantly clear that Section 164 of
the Electricity Act, 2003 read with Section 10 of the Indian
Telegraph Act, 1885 recognized the absolute power of the
Respondent No.1 to proceed with laying High Tension Electric Lines
or electric posts for the transmission of electricity on or over
the lands belonged to the petitioners subject to the right of the
petitioners to claim compensation if any damage is sustained by
them by reason of laying such High Tension Electric Lines, in other
words, neither the acquisition of the lands is necessary nor there
is any need for consent of the petitioners.
19 The
court has also considered the submission of Mr. Joshi that before
transmission line is laid, the Respondent No.1 undertook survey of
route in three stages, namely, Reconnaissance (including
walkover) survey, Preliminary Survey and Detailed survey. Various
aspects were discussed, deliberated and thereafter, final decision
was taken. The efforts made, procedure followed and exercise
undertaken have been explained in great detail in the
affidavit-in-reply filed on behalf of the Respondent Nos. 1 and 2.
It provides complete answers to all the issues raised by the
petitioners. The allegations regarding mala fides and
non-application of mind etc did not have any place, whatsoever in
this case. The petitioners’ submissions regarding alternative
route will have no basis at all as substantial work has been done
by now. As per the details furnished before the court, 80% of the
foundation and nearly 70% of erection of towers is completed.
But for the present litigations, the entire project could have
been completed as per the schedule.
20 The
impugned order passed by the District Magistrate does not suffer
from the vice of non-observance of principle of natural justice nor
it is in any way contrary to the directions issued by this Court.
The Respondent Nos.1 and 2 have approached the Respondent No.4 by
way of an application. The petitioners have filed their objections
which were duly considered before passing such order. Considering
the relevant statutory provisions, requisite sanctions and
approvals and the settled legal position, the Respondent No.4 has
passed the just and proper order which does not call for any
interference of this Court while exercising its writ jurisdiction
under Articles 226 and 227 of the Constitution of India.
21 The
decision of Kerala High Court in the case of Valsamma Thomas
(supra) is of no assistance to the petitioners. In the present case,
order passed by the District Magistrate is a speaking order.
Objections received from the petitioners are duly considered.
Findings arrived at by him can never be said to be perverse nor it
is mala fide exercise of powers. The Kerala High Court,
therefore, in the end, rightly observed that the Court would not
be justified in substituting its own opinion as the Court has not
got technical expertise and, therefore, it should be slow to
interfere with such matter. The decisions relied upon by Mr. Joshi
are directly on the point. This Court had an occasion to deal with
this issue earlier in Special Civil Application No. 3067 of 2010
decided on 09.03.2010, wherein after considering earlier two
judgments of this Court in Jiviben Motibhai Patel (supra) and
Jayantikumar Bhagubhai Patel and Another (supra), it is held that in
view of specific powers conferred on the respondents, the work
undertaken by them is in conformity with the said authority and it
cannot be said that they have undertaken the said work without
taking into consideration all the pros and cons of the issues.
The Andhra Pradesh and Jharkhand High Courts have also taken the
same view as this Court in earlier matters as well as in the
present matter, is taking.
22 in
view of the above discussion, the Court does not find any
substance or merits in any of these two petitions. Hence, both the
petitions are accordingly dismissed. Notice discharged. Interim
relief stands vacated. Request of extension of interim relief is
also rejected. No order as to costs.
(K.
A. PUJ, J.)
pnnair
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