Madhya Pradesh High Court
Madhya Pradesh Power Transmission ... vs Mahendra Singh on 10 January, 2020
Equivalent citations: AIRONLINE 2020 MP 311
Author: Vivek Rusia
Bench: Vivek Rusia
-1- WP No.15756/2018
HIGH COURT OF MADHYA PRADESH: BENCH AT
INDORE
SINGLE BENCH: HON'BLE SHRI JUSTICE VIVEK RUSIA
WRIT PETITION No.15756/2018
Petitioner : Madhya Pradesh Power Transmission
Company Ltd., Ujjain
Versus
Respondents : Mahendra Singh s/o Kalu Singh &
others
Shri Shashank Sharma, learned counsel for the
petitioner.
Shri Kushagra Jain, learned counsel for the
respondent No.1.
Shri Pavan Sharma, learned Govt. Advocate for the
respondent/State.
O R D E R
(Passed on 10.01.2020) Petitioner/M.P Power Transmission Company Ltd. has filed the present petition being aggrieved by the order dated 05.03.2018 passed by Sub Divisional Officer, Tehsil and district Mandsuar by which direction has been given to initiate the process for acquisition of the land of respondent No.1 under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as 'the Act of 2013').
2. Petitioner is a public undertaking constituted under the provisions of the Companies Act after implementation of the Electricity Act, 2003 (hereinafter referred to as 'the Act of -2- WP No.15756/2018 2003'). The petitioner company is engaged in the work of laying of high tension electricity lines within the State of M.P for supply of electricity to its consumers. The Energy Department of the State of M.P has issued a notification dated 08.10.2010 sanctioning the project of laying high tension lines of 400 KV, 220 KV and 132 KV for supply of electricity. Under this project a high tension transmission line of 220 KV from sub station Ratlam to sub station Daloda and 220 KV line from sub station Nagda to Neemuch has been erected. The State Govt. issued a notification under section 164 of the Electricity Act, 2003 conferring upon the petitioner company and its representatives the powers of Telegraph authority under the Indian Telegraph Act, 1885 (hereinafter referred to as 'the Act of 1885'). The petitioner after obtaining necessary permission from various authorities started the process of erection and paid compensation to the land owners whose land has been used for erection of the tower. The petitioner has paid an amount of Rs.8268/- vide cheque No.605453 dated 04.09.2013 to respondent No.1 for loss of crops due to erection of high tension line.
3. The respondent No.1 approached this Court by way of Writ Petition No.10262/2011 complaining that the petitioner/company has started construction of electricity tower over his agricultural land bearing survey No.1124 & 458 in violation of the provisions of the Electricity Act, 2003 and without payment of compensation at the rate of Rs.300/- per sq. ft. The present petitioner filed the detail reply in the -3- WP No.15756/2018 said writ petition and vide order dated 13.07.2012 the writ Court has dismissed the writ petition with a liberty to take appropriate action under section 16 of the Act of 2003 before the District Magistrate. Being aggrieved by the aforesaid order, respondent No.1 preferred a Writ Appeal No.348/2012 before the Division Bench of this Court and vide order dated 23.01.2013 the writ appeal was disposed of by setting aside the order passed by the learned Single Judge with a request to decide the writ petition afresh.
4. After the aforesaid remand vide order dated 27.08.2013 the writ petition has been disposed of with the observation that the construction work of the tower has been completed and the electricity company cannot be compelled to divert the line from some other route, however, it has been made clear that the compensation and other benefits which are payable as per rules be paid to the petitioner forthwith. After the aforesaid order the respondent No.1 approached the SDO, Mandsaur claiming compensation under sections 23, 27, 28, 29 & 30 of the Act of 2013. According to the respondent No.1 for erection of the 220 KV line Nagda- Neemuch Leelo Line the petitioner has used 20x20 mtr. i.e. 400 sq. mtr. Land by making a concrete foundation and the current market value of the land is Rs.500/- sq. ft., therefore, he is entitled for compensation of Rs.21,52,000/-. The present petitioner appeared before the SDO and objected the maintainability of the proceedings. The learned SDO by placing reliance over section 82 of the Act of 2013 has -4- WP No.15756/2018 directed the petitioner to initiate the process under the Act of 2013 for payment of compensation, hence the present petition before this Court.
5. The respondent approached this Court by way of writ petition claiming compensation of his land at the rate of Rs.300/- per sq. ft. and vide detail order this Court has dismissed the writ petition observing that the compensation is liable to be paid under the Act of 1885 and not under the Act of 2013. Being aggrieved by the aforesaid order the respondent No.1 preferred a writ appeal on the ground that the writ Court has not considered the fact that the land in question is situated in village Daloda and the same does not appear in the notification. On this limited ground the appellate Court has remanded the case. After remand, the petitioner/company produced the map. The writ Court has found that there is no dispute regarding the place where the tower has been constructed which has been erected on the corner of the land bearing survey No.1125 owned by the petitioner, therefore, the respondent cannot compel to divert the line from some other route. The petitioner (respondent in this petition) be paid the compensation as per rules.
6. Sub section (3) of section 16 of the Act of 1885 provides that if any dispute arises concerning the sufficiency of the compensation to be paid under section 10, clause (d), it shall on application for that purpose by either of the disputing parties to the District Judge within whose -5- WP No.15756/2018 jurisdiction the property is situated, be determined by him. Section 16 (3) of the Act of 1885 is reproduced below:
16. xxx xxx xxx (2) xxx xxx xxx (3) If any dispute arises concerning the sufficiency of the compensation to be paid under section 10, clause (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situated, be determined by him.
7. The Apex Court in the case of Century Rayon Ltd. vs. IVP Ltd. & ors. in Civil Appeal No.9063 of 2019 has held as under:
7. On the aspect of use of land belonging to a third party for setting up of the electricity transmission line, we would refer to the judgment of this Court in Power Grid Corporation of India Limited vs. Centry Textiles and Inudstries Limited and Ors. MANU/SC/1656/2016:
(2017) 5 SCC 143 wherein a Division Bench of this Court while examining Section 164 of the Electricity Act had observed that the appropriate Government may by order in writing for the purpose of placing of electric lines or electrical plant for the transmission of electricity necessary for the proper coordination of works, confer on any public officer, licensee or any other person engaged in the business of supplying electricity under the Electricity Act any of the powers that the telegraph authority possesses under the Telegraph Act with respect to the placing of the posts and lines for the purposes of a telegraph. This conferment of powers would be subject to such conditions and restrictions, if any, that the appropriate Government may impose and the provisions of the Telegraph Act. Reference was made to Sections 10 and 16 of the Telegraph Act which postulates the power of the telegraph authority to maintain telegraph lines and post and the provisions relating to compensation in exercise of those powers. Clause (d) to Section 10 requires that the telegraph authority shall do as limited damage as possible in exercise of powers to place and maintain telegraph lines and posts, and full -6- WP No.15756/2018 compensation shall be paid to all persons interested for any damage sustained by them. Sub section (1) to Section 16 states that in case of resistance or obstruction in respect of powers exercised by the telegraph authority under Clause (d) to Section 10, the District Magistrate may in his discretion make an order that the telegraph authority shall be permitted to exercise the powers. Sub section (3) to Section 16 states that if any dispute arises with regard to the sufficiency of the compensation to be paid Under Clause (d) to Section 10, the District Judge within whose jurisdiction the property is situated shall determine the compensation.
On the legal effect of these provisions, this Court had observed:
21. It is not in dispute that in exercise of powers under the aforesaid provision, the appropriate government has conferred the powers of telegraph authority vide Notification dated 24-
12-2003 exercisable under the Telegraph Act, 1885 upon the Power Grid. It may also be mentioned that a Central transmission utility (CTU) is a deemed licensee under the second proviso to Section 14 of the Electricity Act, 2003. Power Grid is a Central transmission utility and is, therefore, a deemed licensee under the Electricity Act, 2003. This couples with the fact that Power Grid is treated as authority under the Telegraph Act, 1885, it acquires all such powers which are vested in a telegraph authority under the provisions of the Telegraph Act, 1885 including power to eliminate any obstruction in the laying down of power transmission lines. As per the provisions of the Telegraph Act, 1885, unobstructed access to lay down telegraph and/or electricity transmission lines is an imperative in the larger public interest. Electrification of villages all over the country and availability of telegraph lines are the most essential requirements for growth and development of any country, economy and the well-
being/progress of the citizens. The legislature has not permitted any kind of impediment/obstruction in achieving this objective and through the scheme of the Telegraph Act, 1885 empowering the licensee to lay telegraph lines, applied the same, as it is, for laying down the electricity transmission lines.
-7- WP No.15756/2018Xx xx xx
23. Section 10 of the Telegraph Act, 1885 empowers the telegraph authority to place and maintain a telegraph line under, over, along or across and posts in or upon any immovable property. The provision of Section 10(b) of the Telegraph Act, 1885 makes it abundantly clear that while acquiring the power to lay down telegraph lines, the Central Government does not acquire any right other than that of user in the property. Further, Section 10(d) of the Telegraph Act, 1885 obliges the telegraph authority to ensure that it causes as little damage as possible and that the telegraph authority shall also be obliged to pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers.
Xx xx xx
26. We also do not find that the action of the Power Grid, in the given circumstances, by not shifting the transmission lines was arbitrary. From the facts noted above, it becomes apparent that not only it was unfeasible tochange the alignment as almost entire work had already been completed by the time the writ Petitioner started protesting against this move, even otherwise, the Power Grid has given sufficient explanation to point out that all relevant factors/aspects were kept in kind while laying down the impugned transmission lines. Such transmission lines had to be in straight line to the extent possible for eliminating loss of transmission. It is also explained that electricity transmission is usually laid or crossed over agricultural land where minimum extent of land gets utilised for erecting towers and where agricultural activities are not prejudiced/obstructed in any manner. The purpose is to avoid buildings, religious places, ponds etc. while laying down these transmission lines. It is only when it becomes inevitable that towers are placed on the private lands to the minimum and least extent possible. That is what was tried to achieve in the instant case. Another important factor, which needs repetition at this stage is that no blasting is permissible within 300 -8- WP No.15756/2018 m from the 400 kv line (already existing) or the tower structure. Mining of limestone can be taken up by adopting the methods other than use of explosive/blasting - without damage to the tower foundation/tower structure or the line, which can be accomplished by using jack hammer/pneumatic hammer with compressor so as to avoid any damage to the line or tower. This aspect has also been taken note of by the learned Single Judge of the High Court in the judgment dated 11-3-2008. The Division Bench did not differ with any of these findings.
The decision highlights the imperative and the need for unobstructed access for laying down the electricity transmission lines in the larger public interest as these are essential requirements for growth and development of the country, economy and well being of the citizens.
8. Hence, the respondent No.1 had a remedy to approach the District Judge if he was not satisfied with the amount of compensation after the disposal of the writ petition vide order dated 27.08.2013 but instead of approaching the District Judge he has approached the Collector, Mandsaur who has referred the matter to the SDO for adjudication. The SDO is not an authority under the Act of 1885 to decide the compensation, therefore, he has traveled beyond his jurisdiction while directing the petitioner/company to initiate the process for acquisition of the land under the Act of 2013. The SDO has wrongly held that respondent No.1 is entitled to get the compensation under sections 23, 27, 28, 29 & 30 of the Act of 2013 as the petitioner has used the land for erection of the tower. The SDO has no authority to give such a finding, hence the petition is allowed and the impugned order is set aside. However, the respondent No.1 -9- WP No.15756/2018 is at liberty to take recourse to the remedy available under the law.
(VIVEK RUSIA)
hk/ JUDGE
Digitally signed by Hari Kumar
Nair
Date: 2020.01.14 10:28:02 +05'30'