Gujarat High Court
Patel Vijaykumar Shivdas vs The Collector And District Magistrate on 6 March, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/11273/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11273 of 2019
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 11273 of 2019
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PATEL VIJAYKUMAR SHIVDAS
Versus
THE COLLECTOR AND DISTRICT MAGISTRATE
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Appearance:
MR. RONIT JOY, ADVOCATE FOR MR AJ YAGNIK(1372) for the
Petitioner(s) No. 1,2,3,4,5,6,7
MR. ISHAN JOSHI, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
MR SP HASURKAR(345) for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 06/03/2020
ORAL ORDER
1 In this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 30.10.2018 passed by the Collector, District: Mahesana. The order has been passed on an application by GETCO made under Section 16 of the Indian Telegraph Act, 1885. The case of the petitioners is as under:
1.1 It is the case of the petitioners that they hold agricultural lands at village: Thol, Taluka: Kadi, District:
Mahesana. Their case is that they are similarly situated to the land owners who had approached this Court by filing Special Civil Application No.1297 of 2016, for a direction to the respondents to stop laying down of Over Head Electric Supply Line through the agricultural field of the petitioners. The case of the petitioners is that, though, the respondents there made Page 1 of 11 Downloaded on : Sun Jun 14 09:14:43 IST 2020 C/SCA/11273/2019 ORDER a statement that the authorities have decided to re-route the line and because of such a decision the lands of the petitioners shall not be affected, as the land was covered within the ambit and area of Eco Sensitive Zone, the respondents have proceeded forward to re-route the transmission lines through the lands of the petitioners in violation of the statement made before this Court.
1.2 The case of the petitioners is that an application was made by the respondent GETCO on 26.12.2017 for entering into lands of the petitioners for erection of transmission towers in accordance with the provisions of Sections 10 and 16 of the Indian Telegraph Act, 1885. The application was made for police protection. On the basis of a hearing that took place before the District Collector, the case of the petitioners is that without taking into consideration the written and oral submissions made by the petitioners, the respondent - District Collector with assigning any reasons has passed an order. No compensation has been paid, and therefore, the order suffers from the vice of arbitrariness and violates Article 14 of the Constitution of India.
2 Mr.Ronit Joy, learned counsel appearing for the petitioners would submit that it is specifically held by the Division Bench of this Court in Letters Patent Appeal No.1104 Page 2 of 11 Downloaded on : Sun Jun 14 09:14:43 IST 2020 C/SCA/11273/2019 ORDER of 2013 that reasons must be assigned and once resistance is shown by the owner towards the property, the District Magistrate, apart from giving an opportunity of hearing to the petitioners is also required to examined whether the land is laid down as per the approved route and that the Magistrate should consider the objections raised by the affected farmers. Relying on a decision of this Court rendered in the Letters Patent Appeal No. 1104 of 2013 and allied matters, Mr.Joy, learned advocate would contend that as per Section 10(D) of the Act there was an obligation on the part of the authorities to lay down lands in such a manner that it caused least damage and that appropriate compensation is paid simultaneously. The order of the District Magistrate / Collector is wanting of all these considerations. 2.1 Mr.Joy, learned advocate, would also rely on a decision of the Supreme Court in the case of Kranti Associates Private Limited and another vs. Masood Ahmed Khan and others., reported in (2010) 9 SCC 496, and submits that it is well settled that when an authority is making an order in exercise of its quasi judicial function, it must record reasons in support of the order it makes. He, further, submits that since the order is bereft of reasons, the same must be quashed and set aside.
Page 3 of 11 Downloaded on : Sun Jun 14 09:14:43 IST 2020 C/SCA/11273/2019 ORDER 3 Mr.S.P.Hasurkar, learned counsel appearing for the respondent No.2 supports the order of the District Magistrate and submits that in exercise of powers under Section 10 read with Secrtion 16(1) of the Indian Telegraph Act, 1885, the District Magistrate has taken into consideration the aspect raised by the applicants / petitioners that is whether the transmission lines passed through the Eco Sensitive Zone and a specific finding of fact has been recorded that the line, in fact, does not pass through such zone. That there is no breach of submission made in the petition filed earlier, because the order was made on a group of petitions so filed and the statement was made in context of some of the petitioners thereon, whose lands fell in the Eco Sensitive Zone of the area.
3.1 Mr.Hasurkar, learned counsel, invited my attention to the map produced with the affidavit-in-reply and demonstrated the fact that as far as survey nos. of the petitioners are concerned, the revised route for laying down the transmission lines admittedly falls outside the Eco Sensitive Zone which has been duly considered by the authorities. Inviting my attention to the affidavit-in-reply filed on behalf of the authorities, he would submit that adequate compensation is to be paid under Section 10 of the Act and Page 4 of 11 Downloaded on : Sun Jun 14 09:14:43 IST 2020 C/SCA/11273/2019 ORDER while considering the request of the petitioners the Collector has kept that in mind. As far as the denial of opportunity of hearing and the order being on the vice of no reasons being assigned, reliance is placed on para 9 of the affidavit-in-reply to submit that the opportunity of hearing was given and the Collector has assigned reasons which can be read in the order so passed. He has relied on a decision of the Supreme Court in the case of Power Grid Corporation of India Limited vs. Century Textiles & Industries Limited., reported in 2017 (5) SCC 143. Reliance is also placed on a decision of the Division Bench of this Court in Himmatbhai Vallabhbhai Patel vs. Chief Engineer (Project), Gujarat Energy Transmission and Ors., reported in 2011 (2) GLH 781. 4 Considering the submissions made by learned counsel appearing for the respective parties, it will be in the fitness of things to consider the order passed by the Collector / District Magistrate dated 30.10.2018. The case of the applicants before the Collector was that the laying down of the transmission lines through the lands of the petitioners was opposed by them. It was their contention that they had made applications on 09.02.2018 and 10.04.2018. Reading of the order of the Collector makes it evident that they were present and written arguments were also invited and the case was Page 5 of 11 Downloaded on : Sun Jun 14 09:14:43 IST 2020 C/SCA/11273/2019 ORDER adjourned to 03.05.2018. They were intimated of the date by a communication dated 20.04.2018. What was found by the Collector is that on 03.05.2018, it was specifically stated that their lands fell beyond the Eco Sensitive Zone. However, what was requested by them was that if there was an alternative re- routing, their lands be spared from laying down of the transmission lines. Perusal of the order of Collector would further indicate that the Collector found that there is a mechanism by which compensation will be paid. 5 In context of these observations, Section 16 of the Indian Telegraph Act, 1885, is read which is reproduced hereunder:
"16. Exercise of powers conferred by Section 10, and disputes as to compensation, in case of property other than that of a local authority.-(1) If the exercise of the powers mentioned in section 10 in respect of property referred to in clause(d) of that section is resisted or obstructed, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them.
(2) If, after the making of an order under sub-
section(1), any person resists the exercise of those powers, or, having control over the property, does not give all facilities for their being exercised, he shall be deemed to have committed an offence under section 188 of the Indian Penal Code, 1860 (45 of 1860).
(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 situate, be determined by him.
(4) If any dispute arises as to the persons entitled to receive compensation, or as to the proportions in which the persons interested are entitled to share in it, the Page 6 of 11 Downloaded on : Sun Jun 14 09:14:43 IST 2020 C/SCA/11273/2019 ORDER telegraph authority may pay into the Court of the District Judge such amount as he deems sufficient or, where all the disputing parties have in writing admitted the amount tendered to be sufficient or the amount has been determined under sub-section (3), that amount; and the District Judge, after giving notice to the parties and hearing such of them as desire to be heard, shall determine the persons entitled to receive the compensation or, as the case may be, the proportions in which the persons interested are entitled to share in it. (5) Every determination of a dispute by a District Judge under sub-section(3), or sub-section (4) shall be final:
Provided that nothing in this sub-section shall affect the right of any person to recover by suit the whole or any part of any compensation paid by the telegraph authority, from the person who has received the same."
5.1 Sub-section 3 and 4 thereof specifically indicate that if there is any dispute concerning the sufficiency of compensation to be paid, the competent authority to take up such dispute is the District Judge. The Collector in his order has appreciated the stand of the petitioners and found that it is not technically viable to re-route the lines in accordance with the request made by the petitioners.
6 Having considered the aspects raised by the petitioners, this Court would be loathe to substitute the reasons assigned by the Collector when he has exercised discretion available to him under Sections 10 and 16 of the Telegraph Act, 1885. It will be apt to reproduce relevant paragraphs of the decision in the case of Himmatlal Vallabhbhai (supra), which read as under:Page 7 of 11 Downloaded on : Sun Jun 14 09:14:43 IST 2020 C/SCA/11273/2019 ORDER
"17. The said Sections 67 and 164 of the Electricity Act, 2003 may be extracted hereunder:
S.67 Provision as to opening up of streets, railways, etc.- (1) A licensee may, from time to time but subject always to the terms and conditions of his licence, within his area of supply or transmission or when permitted by the terms of his licence to lay down or place electric supply lines without the area of supply, without that area carry out works such as-
(a) to open and break up the soil and pavement of any street, railway or tramway;
(b) to open and break up any sewer, drain or tunnel in or under any street, railway or tramway;
(c) to alter the position of any line or works or pipes, other than a main sewer pipe;
(d) to lay down and place electric lines, electrical plant and other works;
(e) to repair, alter or remove the same;
(f) to do all other acts necessary for transmission or supply of electricity.
(2) The Appropriate Government may, by rules made by it in this behalf specify,-
(a) the cases and circumstances in which the consent in writing of the appropriate Government, local Authority owner or occupier, as the case may be, shall be required for carrying out works;
(b) the Authority which may grant permission in the circumstances where the owner or occupier objects to the carrying out of works;
(c) the nature and period of notice to be given by the licensee before carrying out works;
(d) the procedure and manner of consideration of objections and suggestions received in accordance with the notice referred to in clause (c);
(e) the determination and payment of compensation or rent to the persons affected by works under this Section;
(f) the repairs and works to be carried out when emergency exists;
(g) the right of the owner or occupier to carry out certain works under this Section and the payment of expense therefor;
(h) the procedure for carrying out other works near sewers, pipes or other electric lines or works;
(i) the procedure for alteration of the position of pipes, Page 8 of 11 Downloaded on : Sun Jun 14 09:14:43 IST 2020 C/SCA/11273/2019 ORDER electric lines, electrical plant, telegraph lines, sewer lines, tunnels, drains, etc;
(j) the procedure for fencing, guarding, lighting and other safety measures relating to works on streets, railways, tramways, sewers, drains or tunnels and immediate reinstatement thereof;
(k) the avoidance of public nuisance, environmental damage and unnecessary damage to the public and private property by such works;
(l) the procedure for undertaking works which are not reparable by the Appropriate Government, licensee or local Authority;
(m) the manner of deposit of amount required for restoration of any railways, tramways, waterways, etc;
(n) the manner of restoration of property affected by such works and maintenance thereof;
(o) the procedure for deposit of compensation payable by the licensee and furnishing of security; and
(p) such other matters as are incidental or consequential to the construction and maintenance of works under this Section.
(3) A licensee shall, in exercise of any of the powers conferred by or under this Section and the rules made thereunder, cause as little damage, detriment and inconvenience as may be, and shall make full compensation for any damage, detriment or inconvenience caused by him or by any one employed by him.
(4) Where any difference or dispute [including amount of compensation under sub-section (3) arises under this Section, the matter shall be determined by the Appropriate Commission.
(5) The Appropriate Commission, while determining any difference of dispute arising under this Section in addition to any compensation under sub-Section(3), may impose a penalty not exceeding the amount of compensation payable under that sub Section.
S. 164 - Exercise of powers of Telegraph Authority in certain cases :-
The Appropriate Government may, by order in writing, for the placing of electric lines or electrical plant for the Page 9 of 11 Downloaded on : Sun Jun 14 09:14:43 IST 2020 C/SCA/11273/2019 ORDER transmission of electricity or for the purpose of telephonic or telegraphic communications necessary for the proper co-ordination of works, confer upon any public officer, licensee or any other person engaged in the business of supplying electricity under this Act, subject to such conditions and restrictions, if any, as the Appropriate Government may think fit to impose and to the provisions of the Indian Telegraph Act, 1885 (13 of 1885), any of the powers which the telegraph Authority possesses under that Act with respect to the placing of telegraph lines and posts for the purposes of a telegraph established or maintained, by the Government or to be so established or maintained.
18 As could be seen, though Section 67(1) of the Electricity Act, 2003, is identical to Section 12(1) of the Indian Electricity Act, 1910, Section 67(2) of the Electricity Act, 2003 varies from Section 12(2) of the repealed Indian Electricity Act, 1910. Section 67(2) does not say that the consent of the owner or occupier is mandatory but the matters where the property of other persons is affected by the works of the licensee have been left to be provided by the appropriate Government by way of Rules in exercise of its rule making power." 7 Considering the provisions of Section 10, this Court has held that once the discretion has been exercised by the authority, a view to substitute that may not be justified merely because an apprehension has been raised by the petitioners of violation of principles of natural justice. In fact, perusal of the order impugned would indicate that the Collector had accorded an opportunity of hearing to the petitioners and the petitioners have filed written submissions. 8 After having considered the technical aspect, once the Collector while exercising the powers under Section 10 and Page 10 of 11 Downloaded on : Sun Jun 14 09:14:43 IST 2020 C/SCA/11273/2019 ORDER 16 of the Telegraph Act, 1885, has found the unavailability of an alternative route due to technical reasons, this Court in exercise of powers under Article 226 of the Constitution of India would not take a different view.
9 Accordingly, the petition is dismissed. Civil Application stands disposed of, accordingly.
It is needless to say that as far as payment of compensation is concerned, the petitioners shall be paid such amounts of compensation in accordance with the directions given by this Court rendered in Special Civil Application No.18334 of 2011 and allied matters.
(BIREN VAISHNAV, J) Bimal Page 11 of 11 Downloaded on : Sun Jun 14 09:14:43 IST 2020