Gujarat High Court
Patel Vinubhai Vihabhai vs The Executive Engineer on 8 March, 2021
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/1501/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1501 of 2021
=======================================================
PATEL VINUBHAI VIHABHAI
Versus
THE EXECUTIVE ENGINEER & 1 other(s)
=======================================================
Appearance:
MR TEJAS P SATTA(3149) for the Petitioner(s) No. 1
MR SP HASURKAR(345) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
=======================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 08/03/2021
ORAL ORDER
1. This petition is filed under Article 226 of the Constitution of India, in which, the petitioner has prayed for following relies, "(A) xxx xxx xxx.
(B) Your Lordships may be pleased to issue writ of mandamus or any other appropriate writ, direction or order in the nature of mandamus and be pleased to direct the Respondent authorities to not to enter on the land of the Petitioner in the interest of justice until the respondent authority do not calculate and follow proper procedure as per the said Act and also grant adequate compensation under the Telegraph Act, 1885 to the present petitioner.
(C) Your Lordships may be pleased to stay the Page 1 of 16 Downloaded on : Thu Jan 13 07:00:10 IST 2022 C/SCA/1501/2021 ORDER implementation of the order dated 21.12.2020 passed by the respondent no.2 authority being District Magistrate, Mehsana during the pendency of this application in the interest of justice. (CA) Your Lordships be pleased to issue writ of mandamus or any other appropriate writ, direction or order in the nature of mandamus for quashing and setting aside the orders of the respondent no.2 being The District Magistrate, Mehsana dated 21.12.2020 which was passed without considering the representations and the material on record of the petitioner.
(D) xxx xxx xxx."
2. Heard learned advocate, Mr. Tejash Satta for the petitioner and learned advocate, Mr. S.P. Hasurkar for the respondent no.1.
3. The facts of the case leading to the filing of the present petition are as under, 3.1 The petitioner is the owner of the land bearing Survey No.68 (Old Survey No.310) of moje Taleti, Tal. & Dist.: Mehsana. 3.2 The respondents are in process of establishing Village Taleti Double electricity transmission line (132 K.V. Mehsana - Siddhpur Line No.2 and 132 K.V. Mehsana - Patan Line No.1 & 2) from the land Page 2 of 16 Downloaded on : Thu Jan 13 07:00:10 IST 2022 C/SCA/1501/2021 ORDER of the petitioner despite the respondents having alternate route available. 3.3 On 26.12.2019, the respondent no.1 had issued notice for laying down the electricity line on the agricultural land of the petitioner. Thereafter, the petitioner and other villagers have raised objections against laying down of electricity line and, therefore, the respondent no.1 filed proceeding before the respondent no.2 - District Magistrate and the respondent no.2 - District Magistrate issued notice on 09.10.2020 to the petitioner and other objectors. On receipt of the notice issued by the respondent no.2 - District Magistrate, the the petitioner submitted reply dated 15.10.2020 and also requested to supply necessary documents, however, the respondent no.2 - District Magistrate passed impugned order on 21.12.2020, whereby the objections raised by the petitioner and other objectors have been rejected and permission was given to the respondent no.1 to proceed further with the work of laying down of electricity Page 3 of 16 Downloaded on : Thu Jan 13 07:00:10 IST 2022 C/SCA/1501/2021 ORDER line. The petitioner has, therefore, filed the present petition challenging the said order.
4. Learned advocate, Mr. Tejas Satta appearing for the petitioner has referred to Map, which is placed on record at Page No.32 of the compilation and after referring to the same, it is contended that the respondent no.1 has erected the towers in the land bearing Survey Nos.70 and 78, which is near the land of the petitioner and thus, there is no need for the respondent no.1 to erect the tower in the land of the petitioner. Learned advocate has also referred to the photographs, which are placed on record in support of the said contentions. It is further submitted that it was specifically pointed out to the respondent no.2 - District Magistrate that alternate Government land is available with the respondent no.1 for the purpose of laying down electricity line and for erection of tower, inspite of that, the respondent no.1 has tried to shift the tower from the adjoining field to the land in question, which is of the ownership of the petitioner. It is further submitted that even the respondent no.1 has not Page 4 of 16 Downloaded on : Thu Jan 13 07:00:10 IST 2022 C/SCA/1501/2021 ORDER paid any compensation to the petitioner till date and, therefore, the action of the respondent no.1 is required to be quashed and set aside.
5. Learned advocate, Mr. Satta, at this stage, has referred to and relied upon the provision contained in Section 10(d) and Section 16 of the Indian Telegraph Act, 1885 (hereinafter referred to as "Telegraph Act" for short). It is submitted that the Telegraph Authority shall do as little damage as possible while exercising powers conferred under the said provision and also to pay full compensation to the persons interested for any damage sustained by them by reason of the exercise of those powers. At this stage, once again it is submitted that while exercising power, the respondent no.1 has not considered the aforesaid provision and thereby they have decided to shift the line from the land bearing Survey Nos.70 and 78 to land bearing Survey No.68, which is of the ownership of the petitioner.
6. Learned advocate, thereafter, placed reliance upon the decision rendered by the Division Bench of this Court in case of Dilip Singh Chauhan Vs. Gujarat Urja Vikas Nigam Ltd., reported in 2013 Page 5 of 16 Downloaded on : Thu Jan 13 07:00:10 IST 2022 C/SCA/1501/2021 ORDER (34) GHJ 496, more particularly, has referred to and relied upon Paragraph Nos.65(e), 65(f) and 65(g) of the said judgment. Learned advocate, Mr. Tejas Satta has thereafter placed reliance upon the the judgment of the Hon'ble Supreme Court in case of Power Grid Corporation of India Ltd. Vs. Centry Textiles and Industries Ltd. & Ors., reported in (2017) 5 SCC 143 and more particularly, referred to Paragraphs Nos.23 and 26 thereof. Learned advocate, therefore, urged that the impugned order passed by the respondent no.2 be quashed and set aside and the relief as prayed for in the present petition be granted.
7. On the other hand, learned advocate, Mr. S.P. Hasurkar appearing for the respondent no.1 has opposed this petition and referred to separate map placed on record. He has also referred to affidavit in reply filed on behalf of the respondent no.1. It is submitted that the respondent no.1 is laying down transmission line while exercising power by the Telegraph Authority as envisaged in Sections 10 to 16 of the Telegraph Act conferred upon them by the Government of Gujarat under Section 164 of the Electricity Act. Page 6 of 16 Downloaded on : Thu Jan 13 07:00:10 IST 2022 C/SCA/1501/2021 ORDER It is submitted that transmission line is laid down after complying with all necessary formalities and required permission. It is submitted that the transmission line in question is not new line but shifting of existing line due to coming of new railway line. It is submitted that the respondent - GETCO being State Transmission Utility, it is its statutory duty to maintain efficient and economic transmission network throughout the State of Gujarat. It is submitted that the Railways have applied for shifting of the line and pursuant to the said application, work in question is being carried out. It is submitted that sufficient opportunity of hearing was granted to the petitioner and other adjoining land owners, who were obstructing the process of laying of line in question and after considering the reply of the petitioner, the respondent no.2 - District Magistrate passed impugned order. It is further submitted that the proceeding before the respondent no.2 - District Magistrate under Section 16(1) of the Telegraph Act are of summary nature. It is also submitted that the route of the line is decided and approved Page 7 of 16 Downloaded on : Thu Jan 13 07:00:10 IST 2022 C/SCA/1501/2021 ORDER by the competent authority and various factors are considered by the concerned Experts. It is further submitted that the transmission line is required to be changed because of the railway corridor. It is submitted that the towers which were placed in land bearing Survey Nos.70 and 78 are required to be dismental because of such railway corridor and, therefore, the line is to be shifted and tower is to be installed in the land in question i.e. the land bearing Survey No.68, which is of the ownership of the petitioner. It is also submitted that after taking Experts' opinion, the said exercise is carried out and foundation work in the land in question is already over. It is, therefore, urged that this Court may not interfere with the said process.
8. Learned advocate, Mr. Hasurkar has also contended that the respondent no.1 has followed requirements as mentioned in Section 10(d) of the Telegraph Act and the compensation will be paid to the petitioner by the respondent no.1 in three different stages. At this stage, learned advocate for the petitioner has placed reliance upon the order dated 06.11.2020 passed by the Division Page 8 of 16 Downloaded on : Thu Jan 13 07:00:10 IST 2022 C/SCA/1501/2021 ORDER Bench of this Court in Letters Patent Appeal No.534/2020 and referred to Paragraph Nos.58.16 of the said order. Learned advocate has therefore urged that this petition may not be entertained.
9. Having heard learned advocates appearing for the parties and having gone through material placed on record, it would emerge that the respondent no.1 has issued show cause notice to the petitioner before commencing work of laying down of transmission line. It is true that the towers are already installed in land bearing Survey Nos.70 and 78. However, it is the specific case of the respondent no.1 that this is not the case of installation of new transmission line but it is a case of shifting of transmission line because of the request made by the Railways. Thus, the towers, which are already installed in the land bearing Survey Nos.70 and 78, are required to be dismental and after the opinion is received by the Expert, the towers are required to be installed in the agricultural field of the petitioner in land bearing Survey No.68. From the separate map supplied by learned advocate for the respondent no.1, it is clear that transmission line is Page 9 of 16 Downloaded on : Thu Jan 13 07:00:10 IST 2022 C/SCA/1501/2021 ORDER required to be shifted because of the railway corridor, as a result of which, now it is decided to install the tower in the field of the petitioner.
10. It is pertinent to note that when the petitioner and other persons of adjoining land have raised the objections, proceedings were filed before the respondent no.2 - District Magistrate under Section 16 of the Telegraph Act. It is not in dispute that the respondent no.2 has passed the impugned order without giving opportunity of hearing to the petitioner and other objectors. The scope of proceeding under Section 16 of the Telegraph Act is very limited. The respondent no.2
- District Magistrate has also observed in the impugned order that the respondent no.1 is required to pay compensation to the petitioner and other objectors/ affected persons, which is also specifically stated by learned advocate, Mr. Hasurkar appearing for the respondent no.1 while making submission that appropriate compensation will be paid as per the prescribed procedure to the petitioner. Thus, this Court is of the view that no interference is required in the order Page 10 of 16 Downloaded on : Thu Jan 13 07:00:10 IST 2022 C/SCA/1501/2021 ORDER passed by the respondent no.2 - District Magistrate.
11. In case of Dilip Singh Chauhan (supra), the Division Bench of this Court has observed and held in Paragraph Nos.65(e), 65(f) and 65(g), which read as under, "(e) As per the Electricity Act any licensee in absence of any specific conferment of power under Section 164 of the Act as that of the Telegraph Authority for laying down of the work has to follow the procedure as provided under Section 67 read with the Rules of 2006. Such would include the consent of the owner or the occupier for laying down of the line and if the consent is not granted or the objection is raised, the licensee has to get the permission of the District Magistrate or the Commissioner of the Police or the officer so authorized, as the case may be, but while granting permission, the District Magistrate or the Commissioner of Police or the officer so authorized has to fix the amount of compensation or annual rent or both, which as per his opinion should be paid by the licensee to the owner or occupier. The order of the District Magistrate or the Commissioner of Police or the officer so authorized is subject to revisional power of appropriate Commission. Page 11 of 16 Downloaded on : Thu Jan 13 07:00:10 IST 2022 C/SCA/1501/2021 ORDER
(f) In case of exercise of power under Telegraph Act on account of conferment of such power upon the licensee by appropriate Government under Section 164 of the Act, the power may be exercised by the licensee as Telegraph Authority for laying down of line. As per the provisions of Section 10(d) there is obligation upon the licensee to lay down the line, which causes the least damage and to pay appropriate compensation.
(g) While exercising the power as that of the Telegraph Authority under the Telegraph Act, on account of the notification under Section 164 of the Act consent of the owner or occupier may not be required, but some reasonable prior intimation should be given to the owner or occupier, enabling him to exercise his right to resist or obstruct, may be on the ground that the principles of least damage is not followed or may be on the ground that appropriate compensation is not paid or otherwise. The moment there is resistance or obstruction by the owner or occupier, the licensee has to stop his work, if any, or to withdraw from the property of the owner or the occupier. Thereafter, the licensee may approach before the District Magistrate for permission to lay down the line and the District Magistrate in exercise of the Page 12 of 16 Downloaded on : Thu Jan 13 07:00:10 IST 2022 C/SCA/1501/2021 ORDER power may grant permission, but while granting permission, he may be required to examine the observance of the principles of little damage as possible and thereafter the permission may be granted. If permission is so granted by the District Magistrate, thereafter the owner or occupier cannot interfere in the work of laying down of the line unless the order of the District Magistrate granting permission is carried before the higher forum and any prohibitory order is passed by the competent forum or competent Court known to law. While granting permission under Section 16(1), the District Magistrate is not required to examine the aspect of sufficiency of compensation."
12. This Court cannot dispute the proposition of law laid down by the Division Bench of this Court. In the facts of the present case, the respondent no.1 has followed the procedure prescribed under Section 10(d) of the Telegraph Act and tried to see that less damage is done to the land in question.
13. In case of Power Grid Corporation of India Ltd.
(supra), the Hon'ble Supreme Court has observed in Para No.23 as under, "23. Section 10 of the Telegraph Act, 1885 empowers the telegraph authority to place Page 13 of 16 Downloaded on : Thu Jan 13 07:00:10 IST 2022 C/SCA/1501/2021 ORDER 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."
14. This Court cannot dispute the proposition of law laid down by the Hon'ble Supreme Court that the Telegraph Authority is obliged to ensure that it causes as little damage as possible and to pay full compensation to the interested persons for the damage sustained by them by reason of the exercise of powers by the authority.
15. In the order dated 06.11.2020 passed by the Division Bench of this Court in Letters Patent Appeal No.534/2020, the Division Bench of this Court has observed in Para No.58.16 as under, Page 14 of 16 Downloaded on : Thu Jan 13 07:00:10 IST 2022 C/SCA/1501/2021 ORDER "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 realigning of the route, on the premise that the District Collector cumDistrict 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."
16. Thus keeping in view the aforesaid decisions, if the facts of the present case, as discussed hereinabove, are examined, this Court is of the view that no error is committed by the respondent no.2 while passing impugned order. Similarly, this Court is of the view that the respondent no.1 has tried to see that little damage is caused to the Page 15 of 16 Downloaded on : Thu Jan 13 07:00:10 IST 2022 C/SCA/1501/2021 ORDER land of the petitioner while exercising power under the Telegraph Act. It is further revealed that this is a case of shifting of transmission line and not of installation of new transmission line. The respondent no.1 is bound to pay compensation and as stated by learned advocate appearing for the respondent no.1 that the compensation will be paid to the petitioner. Further, the foundation work of the tower is already over and the work of laying down of transmission line is in progress and, therefore, this Court is not inclined to interfere with the same.
17. In view of the aforesaid discussion, the present petition is dismissed. Notice is discharged.
(VIPUL M. PANCHOLI, J.) Gautam Page 16 of 16 Downloaded on : Thu Jan 13 07:00:10 IST 2022