Gujarat High Court
Jitubhai @ Jitendrakumar Dahyabhai ... vs State Of Gujarat on 10 March, 2025
NEUTRAL CITATION
C/SCA/15365/2024 ORDER DATED: 10/03/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15365 of 2024
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JITUBHAI @ JITENDRAKUMAR DAHYABHAI PATEL & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR R R MARSHALL, SR COUNSEL with MR DAIFRAZ HAVEWALLA(3982)
for the Petitioner(s) No. 1,2,3,4,5,6
MR G. H. VIRK, LD. GOVERNMENT PLEADER with MS DHARITRI
PANCHOLI AGP for the Respondent(s) No. 1
MR KAMAL TRIVEDI SR COUNSEL with MR AKSHAT KHARE for MOSON
LE EXPARTS(11071) for the Respondent(s) No. 3
NOTICE NOT RECD BACK for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 10/03/2025
ORAL ORDER
1. The present Special Civil Application has been preferred praying for the following reliefs:-
"A) That this Hon'ble Court be pleased to issue appropriate writ, order or direction, quashing the impugned order dated 30.08.2024 passed in Application No. MAG/TELIGRAPH ACT/765 KV KHAVDA TRANSMISSION LINE/VASHI 2323/2024 (Annexure A);
B) That this Hon'ble Court be pleased to issue appropriate writ, order or direction, restraining the respondents from laying the Line being 765KD DC Ahmedabad - Navsari line from the lands of the petitioners and further be pleased to direct them to take the line from the alternative route as proposed by the petitioners (Annexure J);
C) That pending admission, hearing and final disposal of this petition, this Hon'ble Court be pleased to stay the implementation, operation and execution of the order dated Page 1 of 21 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Sat Mar 15 2025 Downloaded on : Mon Mar 17 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/15365/2024 ORDER DATED: 10/03/2025 undefined 30.08.2024 passed in Application No. MAG/TELIGRAPH ACT/765 KV KHAVDA TRANSMISSION LINE/VASHI.2323/2024 (Annexure A);
D) Pending admission, hearing and final disposal of this petition, this Hon'ble Court be pleased to direct the respondents to restrain from laying the Line being 765KD DC Ahmedabad - Navsari line from the lands of the petitioners;
E) That ad-interim injunction in terms of para (D) may be granted;
F) That any other and further relief that is deemed fit and expedient in the interest of justice be granted;"
2. The brief facts leading to the filing of the present petition are that the petitioners are the joint owners and occupiers of the lands bearing block/survey Nos.81, 93, 95, 100, 101, 102, 103, 104, 105, Village Segva, Taluka Kamrej, District Surat, admeasuring 3,18,025 sq. mtrs. That the petitioners were desirous of developing the lands and therefore, an application was given to the Town Planner, Surat for permission to develop the said lands. That thereafter, the development permission was granted to develop 643 industrial units on the lands of the petitioners. As per the sanctioned plans, the constructions on the lands in question were going on and the petitioners had also sold the plots to various persons. That on 16.03.2024, the petitioners received a notice from the respondent No.3 M/s. Powergrid Khavda II-C Transmission Ltd., Navsari stating that they propose to undertake the construction of transmission line package TLO2 765 KV DC Ahmedabad - Navsari Transmission Line Project and for the said project, the said respondent has to lay overhead transmission line from the lands of the petitioners and other land holders. That thereafter, the petitioners made a representation on 11.03.2024 before the Collector, Surat, raising an objection with respect to Tower No.217/0, which was passing through the lands of the petitioners. The petitioners raised an Page 2 of 21 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Sat Mar 15 2025 Downloaded on : Mon Mar 17 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/15365/2024 ORDER DATED: 10/03/2025 undefined objection that the lands in question were already granted N.A. permission and therefore, the lands were not agricultural lands. That various plots were amalgamated and a huge industrial estate in the name of Gopin Industrial Park was being established by the petitioners and therefore, laying of the high power transmission lines would affect the huge number of people. The Collector was, therefore, requested to consider the case of the petitioners and alter the route of the transmission line. That thereafter, on 13.03.2024, the petitioners again made a representation to the respondent No.3 indicating various factors and requesting for altering the route of transmission line. That in the meantime, the respondent No.2 initiated the proceedings under the Telegraph Act, 1885 and the notice dated 30.05.2024 came to be issued to the petitioner No.1 calling upon him to remain present for hearing on 06.06.2024. That thereafter, vide letter dated 30.08.2024, the respondent No.2 Collector directed the State machinery to help the respondent No.3 in laying of transmission line ignoring the objection raised by the petitioners. Aggrieved, the petitioners have filed the present Special Civil Application.
3. Vide order dated 28.10.2024, this Court, while issuing notice, had directed the petitioners to make a fresh representation for change of route to the appropriate authority for its consideration and decision. Accordingly, the petitioners made a representation to the appropriate authority of the respondent No.3, which came to be rejected for the reasons stated in the communication dated 07.12.2024.
4. The learned senior counsel Mr. R. R. Marshall appearing for the petitioners submits that it is well settled position that the transmission lines usually pass through the agricultural land or waste land, where minimum lands are utilized for erecting the tower Page 3 of 21 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Sat Mar 15 2025 Downloaded on : Mon Mar 17 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/15365/2024 ORDER DATED: 10/03/2025 undefined and the agricultural activities are not prejudiced. It is only in inevitable circumstances that the transmission towers are erected on private or residential lands. He submits that the transmission line passing through the lands of the petitioners and the towers being erected over the same, has an alternative route available as the same can pass through the lands, which are adjoining to the National Express Highway and which have been acquired for the purpose of construction of the National Express Highway. The learned senior counsel further submits that the provisions of the Telegraph Act, 1885 and the Electricity Act, 2013 cast an obligation upon the authorities to ensure that while laying down the overhead transmission line, minimum or little damage is caused to the land in question. He submits that in the present case, without considering any factor, the respondent authority has arbitrarily exercised its powers by opting for present route of transmission line which is adversely affecting the lands belonging to the petitioners as well as adjoining lands, leaving aside the route adjoining to the National Express Highway, whereby minimum damage is caused to the lands. The learned senior counsel submits that the respondent authorities have also breached their obligation by opting for more physical route leading to erection of more transmission towers and adversely affecting more number of private and residential land holders. He submits that despite the representation being made, the respondent No.3 has not given any reply as to why the present route is selected for laying down transmission line when an alternative, feasible and practical route is available. The learned senior counsel submits that the respondent No.3 is proceeding ahead with the working of the transmission line despite an objection being raised by the petitioners and even when the issue in dispute was pending for adjudication by the concerned authority. It is further submitted that the petitioners have obtained N.A. permission from the Collector, Page 4 of 21 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Sat Mar 15 2025 Downloaded on : Mon Mar 17 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/15365/2024 ORDER DATED: 10/03/2025 undefined Surat and the present route of land decided to lay down the transmission line, which is passing through the lands of the petitioners, renders the land unsuitable for utilization for industrial purpose as it would pose danger to the lives of workers working for the same. The learned senior counsel submits that the petitioners had asked for the report in respect of tower locations and GPS coordinates carried out in presence of the petitioners, however the same was never made available to the petitioners and no opportunity was provided to rebut the said report. The respondent No.3 authority had never intimated to the petitioners regarding the details of the specific survey numbers, area and locations from which, the electrical towers would operate. He submits that even no details regarding route map, b-line, feasibility study report asked for by the petitioners have been provided. The learned senior counsel submits that the petitioners are agitating the present issue since the authorities have arbitrarily chosen the route of transmission line from the lands of the petitioners, which is not in accordance with the law and even when the alternative route was available for the same. The learned senior counsel submits that even otherwise, the impugned order passed by the the Collector is also silent on the issue as to how much and to whom the compensation would be paid for erection of transmission tower. The learned senior counsel submits that since the Industrial Park Project of the petitioners will be adversely affected, the alternative route causing minimum damage to the land of the land holders should be decided and adopted by the respondent No.3. He, therefore, submits that the present Special Civil Application be allowed. In support of his contentions, the learned senior counsel Mr. R. R. Marshall has placed reliance on the judgment of the Hon'ble Apex Court in the case of Kolkata Municipal Corporation and anr. vs. Bimal Kumar Shah and ors. in Civil Appeal No.6466 of 2024 dated Page 5 of 21 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Sat Mar 15 2025 Downloaded on : Mon Mar 17 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/15365/2024 ORDER DATED: 10/03/2025 undefined 16.05.2024, wherein it has been held that under the constitutional scheme, compliance with a fair procedure of law before depriving any person of his immovable property is well entrenched and compulsory acquisition will still be unconstitutional if proper procedure is not established or followed before depriving a person of their right to property. By the said judgment, the Hon'ble Apex Court has laid down the principles with respect to acquisition of land under the land acquisition proceedings.
5. Per contra, the leaned senior counsel Mr. Kamal Trivedi appearing on behalf of the respondent No.3 Powergrid Corporation submits that the said respondent is engaged in the business of electric power transmission throughout the country by laying an Inter-State Transmission System to ensure smooth flow of electricity from generating stations to various load centers and to provide efficient power supply for the entire country. He submits that the Indian Power System has moved towards "One Nation One Grid", whereby the power generated from all sources is brought into one network and is supplied to the end users in a most effective and efficient manner, thereby solving the problem of power shortage in various parts of India, which has obstructed overall economic development of the country. The learned senior counsel submits that the Powergrid, for one of its transmission line expansion projects, incorporated M/s Power Grid Khavda II-C Transmission Ltd. as a wholly owned subsidiary of Powergrid as a special purpose vehicle for laying Transmission line at Khavda being potential zone and connecting it to rest parts of the country. The learned senior counsel submits that the respondent No.3 has followed the appropriate procedure under the Telegraph Act, 1885 and the Electricity Act, 2013. The learned senior counsel submits that Section 164 of the Electricity Act confers powers of the Telegraph Authority to the respondent No.3 for the said project. Upon Page 6 of 21 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Sat Mar 15 2025 Downloaded on : Mon Mar 17 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/15365/2024 ORDER DATED: 10/03/2025 undefined conferring of this power of the Telegraph Authority, the respondent No.3, which is transmission licensee, gets "Right of Way" (ROW) to enter into the land/property for laying of transmission lines. The transmission licensee does not acquire any right other than that of "User Only" in the property and upon which it can place any electric transmission lines/posts/towers. He submits that no acquisition of land is involved in the process and during the process of construction activities, if any damage is caused to the trees/crops/structure, then the transmission licensee is liable to pay actual compensation as per the assessment done by the Revenue Department. The learned senior counsel submits that said compensation towards ROW/laying of transmission lines is only for diminishing value of land and the said legal position has already been upheld by the Hon'ble Supreme Court in the case of Kerala State Electricity Board vs. Livisha and ors. [(2007) 6 SCC 792]. The learned senior counsel submits that in terms of the circular dated 15.10.2015, duly revised by the circular dated 14.06.2024, the Central Government has issued directions to the State Governments and the Union Territories to take suitable decision in regard to adoption of the guidelines issued by the Central Government. Accordingly, the State of Gujarat has issued the Government Resolution dated 14.08.2017 as amended by the Government Resolutions dated 31.12.2021, 01.03.2024 and 14.10.2024 as regards the compensation towards diminution value of land. The learned senior counsel submits that the affected persons are entitled for compensation in the stages as prescribed in State Government Resolution dated 14.10.2024.
6. It is submitted by the leaned senior counsel Mr. Kamal Trivedi that the Central Electricity Authority has already issued approval letter dated 11.01.2023 under section 68 of the Electricity Act to the Page 7 of 21 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Sat Mar 15 2025 Downloaded on : Mon Mar 17 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/15365/2024 ORDER DATED: 10/03/2025 undefined respondent No.3 for laying Ahmedabad - South Gujarat/Navsari (new) 765 KV DC Transmission Line, which is of national important. The said project is to be completed in 24 months by 21/03/2025 at an initial estimated project cost of Rs.2900 crores approximately. He submits that the whole process of transmission line construction is for public purpose and will be beneficial in the State of Gujarat in particular. The learned senior counsel submits that the respondent No.3 has only a user right to enter into the lands of the petitioners for laying of overhead transmission line approximately 15 meters above the land and for the said purpose, the petitioners and other affected persons are getting sufficient compensation for the damage caused due to construction of the said transmission lines and also for the diminution value of the land. No possession of the land will be taken by the respondent No.3 and the ownership and possession of the land will always remain vested with the petitioners/land owners. The learned senior counsel submits that prior to intimation of work for laying said transmission network, the respondent No.3 had given a public notice in Times of India (In English), Rajasthan Patrika (In Hindi) and in Divya Bhaskar (in Gujarati) on 18.06.2023 and in the weekly Official Gazatte on 22.07.2023 to intimate the prospective affected farmers about laying of transmission line across the fields of various villages. The learned senior counsel submits that the respondent No.3 has followed the procedure as prescribed under the Telegraph Act, 1885 as well as Indian Electricity Act, 2003. He submits that the petitioners are in possession of nine survey numbers and that the transmission tower is being erected only in survey No.81. He submits that it is not correct to say that transmission line is going to pass through the entire industrial estate of the petitioners. The learned senior counsel submits that the petitioners are in possession of total area admeasuring 3,18,025 sq. mtrs. and the transmission line is passing Page 8 of 21 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Sat Mar 15 2025 Downloaded on : Mon Mar 17 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/15365/2024 ORDER DATED: 10/03/2025 undefined through the subject land in total ROW area of 13,500 sq. mtrs. which is only 12% of entire subject land. He submits that even the said ROW area remains in ownership and possession of the the petitioners for utilization of its proposed industrial estate and the said proposed industrial purpose should not hinder any future maintenance work and must not obstruct the overhead transmission line as per the CEA Guidelines. The petitioners can very well utilize their lands in question. The learned senior counsel submits that the N. A. permission is not an absolute permission. The said permission is subject to various conditions and one of the conditions in the said N. A. permission is that it is subject to restrictions and laws governing overhead electric line. The learned senior counsel submits that in the present case, while fixing the transmission line route, the most techno economically feasible route is chosen causing least damage. The learned senior counsel submits that in the present case, the subject transmission line is crossing existing another 220 KV DC transmission line and it is mandatory for the respondent No.3 to comply with the minimum height clearance between crossing lines and also mandate minimum not less than 60 degree angle crossing between two power lines. The transmission lines also require a clear corridor of 67 meters on either side from the center of the transmission line. The said transmission line would not have any impact on human beings, animals, plants etc. beyond the statutory clearance/norms. The learned senior counsel submits that the representation of the petitioners was considered by the appropriate authority, i. e. the technical team. After taking into account all the aspects, it was decided that the proposal of the petitioners is not feasible inasmuch as shifting of tower will change the alignment of the entire line and will ultimately result in demolishig and recasting various tower foundations at various locations for which works have already been completed. The learned Page 9 of 21 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Sat Mar 15 2025 Downloaded on : Mon Mar 17 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/15365/2024 ORDER DATED: 10/03/2025 undefined senior counsel submits that in view of the above submissions, the present Special Civil Application be dismissed and the respondent No.3 be directed to continue the work of laying of transmission line in public interest and public welfare.
7. Heard the learned senior counsels for the parties and perused the documents on record.
8. In the present case, the transmission tower is being erected on the land of the petitioners and the transmission line forms part of Ahmedabad - South Gujarat/Navsari (new) 765 KV DC Transmission Line. Section 10 of the Indian Telegraph Act, 1885 authorizes the telegraph authority to place and maintain the telegraph lines under, over, along or across and posts in or upon any immovable property. Section 164 of the Indian Electricity Act enables the provisions of the Indian Telegraph Act to be applicable to the Electricity Authority for laying of the overhead transmission line. The Central Electricity Authority, in exercise of powers under Section 164 of the Electricity Act, has conferred the powers of the Telegraph Authority to the respondent No.3 for the purpose of the said project. A copy of the said approval under Section 164 of the Electricity Act and the Gazette Notification dated 11.12.2023 has been place on record. Therefore, the respondent No.3 has a "Right of Way" (ROW) to enter into the petitioners' land for laying of transmission line. No acquisition of land is involved in the process and during the construction activities, if any damage is caused to the trees/crops/structure, then the transmission licensee is liable to pay actual compensation as per the assessment done by the Revenue Department. Pursuant thereto, the respondent No.3 had also issued a notice on 16.03.2024 to the petitioners intimating them before entering into their land for the work of transmission tower. As the petitioners herein objected to the work undertaken by the Page 10 of 21 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Sat Mar 15 2025 Downloaded on : Mon Mar 17 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/15365/2024 ORDER DATED: 10/03/2025 undefined respondent No.3, an application was filed under Section 16(1) of the Telegraph Act before the learned District Magistrate, Surat. The petitioners herein were issued notice and they raised their objections to the application of the respondent No.3. The learned District Magistrate has held the hearings on 28.05.2024, 06.06.2024, 20.06.2024, 27.06.2024 and 05.08.2024. By the impugned order, the learned District Magistrate has rejected the objections of the petitioners and permitted the respondent No.3 for laying the transmission lines.
9. That, the respondent No.3 has filed an application to the authority for grant of approval for laying of overhead transmission line under "Transmission system for evacuation of 4.5GW RE injection at Khavda PS under Phase - II Part C". Thereafter, the respondent No.3 published a notice in the newspapers for the general public to give objections/representation for the proposed transmission route within two months from the date of such publication. Subsequently, the respondent No.3 also submitted an affidavit declaring that pursuant to the publication of the notice in the local newspapers and the Gazette of India, ten(10) representations have been received from the public on the proposed route alignment and the clarification/reply has also been given to the said representations. That thereafter, the respondent No.3 applied for authorization under Section 164 of the Electricity Act, 2003 to the Ministry of Power with respect to laying telegraph lines and posts/towers established or maintained by the Government. The said authorization came to be granted on 11.12.2023 by the Ministry of Power, Government of India. Accordingly, upon being conferred power of the Telegraph Authority, vide approval under Section 164 of the Electricity Act, 2003, the respondent No.3 herein has got Right of Way to enter the land property for erection of tower and laying of overhead transmission lines.
Page 11 of 21 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Sat Mar 15 2025 Downloaded on : Mon Mar 17 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/15365/2024 ORDER DATED: 10/03/2025 undefined
10. Nothing has been brought on record by the petitioners that pursuant to the public notice dated 18.06.2023, the petitioners had made a representation to the concerned authority towards proposed route alignment. Further, this Court, after filing of the present Special Civil Application, has granted opportunity to the petitioners to make an appropriate representation for realignment of the route of transmission line to the competent authority of the respondent No.3. The competent authority has given a negative opinion since it would involve major change in the alignment, which is not possible at this stage. The another aspect which is to be taken note of in the present case is that tower location No.217/0 coming in the way of survey No.81 of the subject land of the petitioners cannot be technically shifted as proposed by the petitioners since it will change major alignment of the entire line resulting in demolition and recasting of various towers' foundation at various locations, which are already completed. Further, there are two existing 220 Kv DC transmission lines already passing through the land of the petitioners and therefore also, the respondent No.3 has to comply with the Rule 87(3) & (6) of the Indian Electricity Rules, 1956 which mandate the minimum height clearance between crossing lines and also mandate minimum not less than 60 degree angle crossing between two power lines. The realignment, as proposed by the petitioners, will result in violation of permissible angle of deviation at the preceding and succeeding towers. Further, the transmission line, which is passing through the land of the petitioners requires a clear corridor of 67 meters on either side from the center of the transmission line and the land below the same can be utilized. The said transmission line is purported not to have any impact on human beings, animals, plants etc. beyond the statutory clearance/ norms. Therefore, in the given circumstances, the action of the respondent No.3 in not accepting the proposal of the petitioners to Page 12 of 21 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Sat Mar 15 2025 Downloaded on : Mon Mar 17 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/15365/2024 ORDER DATED: 10/03/2025 undefined shift the transmission line is a considered decision in view of the facts noted and the reasons given by the respondent No.3 to the representation of the petitioners by communication dated 07.12.2024.
11. The learned senior counsel for the petitioners that the petitioners Mr. R. R. Marshall submitted that the petitioners have obtained N.A. permission for the land in question and that they are in the process of establishing an industrial park. The learned senior counsel Mr. Kamal Trivedi appearing for the respondent No.3 submitted that after the impugned order dated 30.08.2024 came to be passed under section 16(1) of the Indian Telegraph Act, 1885, the petitioners have filed an application seeking N.A. permission for industrial purpose with respect to survey No.81 admeasuring 1,29,795 sq. mtrs., which is an open land without any construction. Before applying for N.A. permission, the petitioners are very well aware of the location of Tower No.217/0 in the said survey No.81. The learned senior counsel submitted that in the prescribed format of application seeking N.A. permission, the petitioners have clearly stated that no construction has per the approval plan has been carried out. Further, the N.A. Permission for industrial purpose in respect of the land bearing survey No.81 has not been granted till date and the same will be granted subject to erection of transmission tower and passing of overhead transmission line. The learned senior counsel has submitted that N.A. order for block No.93/paiki (survey No.81) in respect of 83,312 sq. mtrs. land was granted on certain conditions and the specific condition No.12 thereon obliges the petitioners to comply with the regulatory provisions with respect to the electric lines passing above or around the said survey number. The learned senior counsel has placed on record the N.A. permission which shows that the condition No.12 has been included in the said N. A.order and will be applicable for Page 13 of 21 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Sat Mar 15 2025 Downloaded on : Mon Mar 17 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/15365/2024 ORDER DATED: 10/03/2025 undefined rest of the survey numbers also. This factual position has not been disputed by the learned senior counsel Mr. R. R. Marshall appearing on behalf of the petitioners.
12. The learned senior counsel Mr. Kamal Trivedi, in support of the contentions, has relied upon the judgment of this Court in the case of Gujarat State Energy Transmission Corporation Limited vs. Ratilal Maganji Brahmbhatt (Barot) [2020(4) GLR 2642], wherein the learned Division Bench, after considering all the relevant sections of the Telegraph Act, 1885 as well as Electricity Act, 2003, has concluded as follows:-
"58. The final conclusions are as under:-
58.1 The Part III of the Telegraph Act, 1885, deals with the Power to place "Telegraph Lines and Posts" and there are other provisions in the said Act, applicable to all the properties. As seen from the plethora of cases, the powers conferred on the telegraph authority to place and maintain telegraph lines and towers, are traceable to Sections 10, 11 and 14 of the Act, 1885 and by virtue of Section 164 of the Electricity Act, 2003, it is conferred on any public officer, licensee or any other person engaged in the business of supplying electricity.
58.2 As per Clause (c) to Section 10, the authority can exercise its powers in respect of the property of a local authority only, by obtaining permission of that authority, whereas, no such permission is required in relation to the property of others. Section 10 does not contemplate notice to an owner or occupier of land to show cause against laying of a line and it authorizes the telegraph authority, to place a telegraph line under, over, along or across any immovable property. The proviso makes it clear that the licencee or any other authorised person does not acquire any right, other than that of user of the property. The right conferred on the land owner is only to seek for payment of compensation for any damage sustained by him, by reason of exercise of the powers.
58.3 Section 10 of the Indian Telegraph Act, 1885, confers a legal sanction to a telegraph authority to enter into any private property, subject to the condition that, while entering into the property and during the course of execution of any work, the telegraph authority is under an obligation to cause as little damage, as possible, and shall pay full compensation to all the persons interested for any Page 14 of 21 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Sat Mar 15 2025 Downloaded on : Mon Mar 17 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/15365/2024 ORDER DATED: 10/03/2025 undefined damage sustained by them, while exercising the powers conferred under Section 10 of the Act.
58.4 When power of the telegraph authority to enter into any private property, is subject to the conditions to cause as little damage as possible, and when there is a provision for payment of compensation, the question as to whether, the said authority should seek for consent from the owner of the property, or provide him an opportunity of hearing before entering into the property, does not arise. However, the land owner may be informed of the work to be executed.
58.5 Since the powers under Section 10 of the Indian Telegraph Act, 1885, can be exercised without acquiring the land in question, once an order is passed by the appropriate government under Section 164 of the Electricity Act, 2003, the public officer, licensee or any other person engaged in the business of supplying electricity shall be entitled to proceed with the works of placing the electric lines without acquiring the land in question. Usage of the land by the licencee or the authorised person, does not amount to acquisition.
58.6 Section 164 of the Electricity Act, 2003, empowers the State Government to confer, by an order in writing, powers which the telegraph authority possesses under the Indian Telegraph Act, 1885, with respect to placing of the telegraph lines and posts, on any public officer, licensee or any other person engaged in the business of supplying electricity under that Act, for placing of electrical plants and electric lines, in terms of Section 2(20), which defines "electric line", as any line which is used for carrying electricity for any purpose and includes--
"(a) any support for any such line, that is to say, any structure, tower, pole or other thing in, on, by or from which any such line is, or may be, supported, carried or suspended; and
(b) any apparatus connected to any such line for the purpose of carrying electricity;"
58.7 The power conferred on any public officer, licensee or any other person engaged in the business of supplying electricity under the Electricity Act, for the abovesaid purpose, may be subject to such conditions, if any, the Government may deem fit to impose and also subject to the provisions of the Indian Telegraph Act, 1885.
58.8 The authorisation, in terms of Section 164 of the Electricity Act, 2003, read with Section 10 of the Indian Telegraph Act, 1885, authorising the public officer or licencee or any other person engaged in supplying electricity, all the powers of the Telegraph Page 15 of 21 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Sat Mar 15 2025 Downloaded on : Mon Mar 17 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/15365/2024 ORDER DATED: 10/03/2025 undefined Authority, which includes the power to enter into any private property, subject to the condition that while entering into the property and the public officer or licensee or any other person, authorised under the Act, is under an obligation to cause as little damage as possible, with a guarantee for payment of compensation for the owner of the land or the persons interested.
58.9 Sections 16 and 17 respectively of the Indian Telegraph Act, 1885, do not limit the absolute powers of the telegraph authority to enter into any property for the purpose of enforcement of Section 10 of the Indian Telegraph Act, 1885, read with Section 164 of the Electricity Act, 2003, by which, the public officer or licensee or any other person engaged in the business of supplying electricity under this Act, is empowered to exercise all the powers, for the purpose of placing electrical plant, line, erection of towers, conductors, poles, etc. 58.10 The intention of the Legislature, is to provide electricity, in terms of Section 43 of the Electricity Act, 2003. When the purpose of the Act, is to provide the basic amenity of electricity to the public at large, and if every objection/resistance has to be entertained under Section 16(1) of the Indian Telegraph Act, 1885, then it would render Section 10 of the Indian Telegraph Act, 1885 and Section 164 of the Electricity Act, 2003, meaningless, thereby, the power conferred on the telegraph authority to enter into any property, subject to causing, as little damage as possible, with an assurance of payment of compensation to the damage, if any, would be redundant.
58.11 If Section 16(1) of the Act, has to be construed, conferring a right on the landowner to seek for an opportunity of prior notice or consent, then the very purpose of Section 10 of the Indian Telegraph Act, 1885 and Section 164 of the Electricity Act, 2003, would be defeated.
58.12 Vis-a-vis Section 185 (2) (b) of the Electricity Act, 2003 and Section 12 (2) of the repealed Indian Electricity Act, 1910, under which the consent of the owner or occupier is essential and on the issue, as to the enforceability of Section 12 of the Act, until the Rules are made under Section 67 of the Electricity Act, 2003, consent of the owner or occupier is necessary, only in the absence of any order, passed under Section 164 of the Electricity Act, 2003.
58.13 Having taken into consideration the relevant provisions of the Indian Telegraph Act, 1885 and Electricity Act, 2003 and analysis of Section 67 and section 164 of the Electricity Act, 2003, the legal position is that, whenever an order is passed by the appropriate Government, in exercise of 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 Page 16 of 21 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Sat Mar 15 2025 Downloaded on : Mon Mar 17 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/15365/2024 ORDER DATED: 10/03/2025 undefined 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, exercises all the powers, as that of the telegraph authority, under the Indian Telegraph act, 1885.
58.14 However, in the 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 plant or other works necessary for transmission or supply of electricity, Section 67 of the Electricity Act, 2003 comes into operation and consequently, prior consent of the concerned owner or occupier, may be required, under Section 12 (2) of the Indian Electricity Act, 1910.
58.15 The provisions of the Works of Licensees Rules, 2006 made under Section 67 (2) of the Electricity Act, 2003 are in pari materia to Section 12 of the repealed Indian Electricity Act, 1910. The Works of Licensees Rules, 2006 are applicable, only in a case, where the works have been taken up by the licensee, under Section 67 (1) of the Electricity Act, 2003. But Section 67 (1) of the Electricity Act, 2003, as well as the rules made under Section 67 (2) would govern the field, only in the absence of an order, under Section 164 of the Electricity Act, 2003.
58.16 Section 16 states that if there is any resistance or obstruction, the District Magistrate may in his discretion, order that the telegraph authority shall be permitted to exercise all the powers. Further, after such an order, a person offering any further resistance is deemed to have committed offence under Section 188 of the Indian Penal Code. Once the technical feasibility of the project, has been approved by the appropriate Government, by issuing an order under Section 164 of the Electricity Act, 2003, no land owner or person interested can seek for shifting or re-aligning of the route, on the premise that the District Collector-cum-District Magistrate, has the powers to do so. The District Collector has no powers to alter any route or alignment, except to remove the difficulties faced by the licencee or the person authorised, pursuant to the orders issued under Section 164 of the Act.
58.17 If the intention of the Legislature was to seek for consent or permission from every owner and if the right of such owner has to be recognised, in terms of Section 16(1) of the Telegraph Act, due to resistance/obstruction, then the execution of any work or project, would be stopped at every stage. Needless to state that the execution of works, involving erection of towers and connection of overhead lines, is done, only after a detailed field study, by identifying a feasible route of the proposed transmission line, and Page 17 of 21 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Sat Mar 15 2025 Downloaded on : Mon Mar 17 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/15365/2024 ORDER DATED: 10/03/2025 undefined while selecting suitable corridors, residential areas to be avoided, span length, the angle of deviation, extent of damage, likely to be caused, while erecting towers, maintenance cost of electric lines and towers and other factors, have to be considered. Public interest, in providing electricity to a large section of people and industrial establishments, etc., has to be given weightage over private interest.
58.18 If the authorities have to recognize the right of obstruction or resistance, in terms of Section 16(1) of the Indian Telegraph Act, 1885, then the moment, any notification is published, all the landowners or interested persons, who have the knowledge of the commencement of any development work, would immediately resist or obstruct the work, and may even seek for re-location or if the towers, posts had already been erected, may seek for re- alignment or removal of towers and plants, erected by the public officer or licensee or any other person, engaged in the business of supplying electricity, authorised to carry out the works, in terms of an order passed by the appropriate Government, under Section 164 of the Electricity Act, 2003.
58.19 When a project involves huge expenditure, erection of many towers at various places and when such project involves, greater public interest, then even a single owner, under the pretext of making objections/resistance, would attempt to stall the process of execution of the project. When entry into any property is legally authorised, with payment of compensation to the land owner, no prior consent is required.
58.20 The Apex Court and other Courts in India, have categorically held that the action of the licencee or the competent authority, in erecting poles or posts, in the property or drawing lines over the property, does not amount to acquisition of lands and it amounts to only user of the property to the extent indicated and therefore, there is no requirement to intiate any land acquisition proceedings, giving opportunity to the land owners, when execution of the work, is ordered under Section 164 of the Act and accordingly, carried out by the licencee or any other competent authority.
58.21 Even if any Court issues any directions to consider the representation of any land owner or person interested, such directions are required to be considered only to the limited extent of payment of compensation, to be given by the licencee or the competent authority and the directions issued, if any, would not empower the District Collector-cum-District Magistrate, to pass any order, contrary to the orders, passed under Section 164 of the Act.
58.22. When the appropriate Government passes an order under Section 164 of the Act, the Collector is bound by the said order, Page 18 of 21 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Sat Mar 15 2025 Downloaded on : Mon Mar 17 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/15365/2024 ORDER DATED: 10/03/2025 undefined and he is not superior to the Government, to hold that the Government has erred in passing an order, under Section 164 of the Act, authorising the licencee or the competent authority to carry out the work, in the route, which involves Techno Economic Consideration.
58.23 The Act confers powers to the Telegraph Authority to determine the property over which the lines are to pass or posts to be erected. The powers of the District Magistrate under Section 16(1) of the Indian Telegraph Act, 1885, does not extent to any adjudication, as to from where and how, the line has to be drawn over any specific item of the property or where posts have to be erected or not, in any specific item of the property.
58.24 The Power of the District Magistrate is confined only to the extent of exercising his discretion in granting permission to the Telegraph Act, to execute the work, when an application is made by the licencee or the competent authority.
58.25 Section 10 of the Indian Telegraph Act gives legal sanction to the licencing authority to enter into any property, to lay poles or posts or draw electric lines. But while doing so, the damage of the property should be less. If there is any resistance, the licencee or the authorised person may approach the District Magistrate-cum- District Collector, to grant permission.
58.26 Once the power is conferred on the licencee or any other competent authority, there can be no objection to the implementation of the scheme, on the principles of natural justice or on the ground of unauthorised use of the land.
58.27 The legislature has conferred powers on the appropriate Government to authorize a public officer or a licencee, etc., under the Electricity Act to exercise the specific powers of an authority under the Indian Telegraph Act, 1885. The authorisation may be general in favour of a transmission company or in a given case, special. The route is decided by the transmission company. The decision to mark a route for laying an electric line is a highly specialized and technical. At that time, it is unrelated to any specific land owner. The route may be for over hundreds of kilometers passing over Government lands, lands of local authorities and private lands and it may not be practicable to hear the land owners along the entire route.
58.28 Having regard to the specialized and technical nature of the task, and the fact that the lines are laid for distribution of electricity, it is the view of this Court that, the Legislature has not provided for any notice or hearing to the public at large, or to the land owners. Therefore, when the appropriate Government authorises a person or any body under the Electricity Act, to exercise the powers of the Telegraph Authority, all the powers Page 19 of 21 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Sat Mar 15 2025 Downloaded on : Mon Mar 17 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/15365/2024 ORDER DATED: 10/03/2025 undefined under the Indian Telegraph Act, 1885, are meant to be exercised.
58.29 The Electricity Act, 2003, is a progressive enactment, with a specific purpose of providing electricity to a large number of people, across the country, to promote industrial and sustainable development in all walks of life. Right of a land owner to possess and enjoy the property, though recognised as a Constitutional Right, under Article 300-A of the Constitution of India, such right has to yield to the Articles 14 and 21 respectively of the Constitution of India, which strive to achieve the Constitutional Goals, enshrined in the basic structure of the Constitution of India. [see T. Bhuvaneswari vs. The District Collector cum District Magistrate, Erode District, Erode, W.P. No.18548 of 2013, decided on 19.11.2013] The said decision came to be challenged before the Hon'ble Apex Court by way of Special Leave Petition No.51 of 2021 which came to be dismissed vide order dated 01.02.2021.
13. In view of the settled legal position, it is found that in the present case, proper procedure has been followed by the respondent No.3 and there is no violation of any legal provision in respect of planing, erecting and laying of Ahmedabad - South Gujarat/Navsari (new) 765 KV DC Transmission Line. Prior approval has been obtained by the respondent No.3 under Section 68 of the Electricity Act, 2003 from the Central Electricity Authority for laying of transmission line. Thereafter, prior to initiation of the work, the public notice came to be issued on 18.06.2023 in three newspapers and in the Official Gazette. The objections, so raised, were also dealt with and replied to by the respondent No.3. Thereafter, the Ministry of Power has issued the order of authorization under Section 164 of the Electricity Act, 2003 in favour of the respondent No.3 conferring power of the Telegraph Authority for laying the subject transmission line along with the details related to the villages in the districts of the State of Gujarat, through which, the subject transmission line under the said scheme is to pass. As per Rule 3(4) of the Works Licenses Rules, 2003 made under Section 176(2)(e) read with Page 20 of 21 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Sat Mar 15 2025 Downloaded on : Mon Mar 17 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/15365/2024 ORDER DATED: 10/03/2025 undefined Section 67(2) of the Act, 2003, nothing contained in the said rule along with the requirement of prior consent of the owner would affect the powers conferred upon any licensee under Section 164 of the Act, 2003. That thereafter, the respondent No.3 also issued notice for starting the work of foundation of Tower No.217/0 located at survey No.81 within the land of the petitioners and upon obstruction being raised, an application under Section 16 of the Indian Telegraph Act, 1885 was filed before the respondent No.2. Before the respondent No.2, hearings were conducted, in which, the petitioners were heard and the impugned order under Section 16(1) of the Indian Telegraph Act, 1885 came to be passed.
14. In view of the aforesaid observations, reasons and settled law, no case is made out by the petitioners for grant of any relief as prayed for. The Special Civil Application is devoid of merits and is accordingly dismissed.
15. The learned senior counsel Mr. R. R. Marshall appearing for the petitioners prays for continuation of status quo granted during the pendency of the present Special Civil Application for a period of two weeks so as to enable the petitioners to challenge the same in appeal. The learned counsel Mr. Akshat Khare appearing for the respondent No.3 opposes the said prayer and submits that the respondent No.3 has to complete the project by 21.03.2025.
16. Considering the aforesaid submissions, the prayers for continuation of interim relief is rejected. No order as to costs.
(ANIRUDDHA P. MAYEE, J.) cmk Page 21 of 21 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Sat Mar 15 2025 Downloaded on : Mon Mar 17 21:16:56 IST 2025