Gujarat High Court
Jaisinh Parshottambhai Patel vs Essar Power Transmission Co. Ltd. & 5 on 28 October, 2015
Bench: Jayant Patel, N.V.Anjaria
C/LPA/1104/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1104 of 2013
In
SPECIAL CIVIL APPLICATION NO. 10284 of 2013
TO
LETTERS PATENT APPEAL NO. 1121 of 2013
In
SPECIAL CIVIL APPLICATION NO. 10301 of 2013
With
LETTERS PATENT APPEAL NO. 379 of 2014
In
SPECIAL CIVIL APPLICATION NO. 9357 of 2013
With
LETTERS PATENT APPEAL NO. 380 of 2014
In
SPECIAL CIVIL APPLICATION NO. 9358 of 2013
With
LETTERS PATENT APPEAL NO. 1254 of 2013
In
SPECIAL CIVIL APPLICATION NO. 7646 of 2013
With
LETTERS PATENT APPEAL NO. 1129 of 2013
In
SPECIAL CIVIL APPLICATION NO. 10620 of 2013
TO
LETTERS PATENT APPEAL NO. 1131 of 2013
In
SPECIAL CIVIL APPLICATION NO. 10622 of 2013
With
LETTERS PATENT APPEAL (STAMP NUMBER) NO. 1532 of 2013
In
SPECIAL CIVIL APPLICATION NO. 10623 of 2013
With
LETTERS PATENT APPEAL (STAMP NUMBER) NO. 1844 of 2013
In
SPECIAL CIVIL APPLICATION NO. 10283 of 2013
With
SPECIAL CIVIL APPLICATION NO. 780 of 2014
TO
SPECIAL CIVIL APPLICATION NO. 783 of 2014
With
SPECIAL CIVIL APPLICATION NO. 1019 of 2014
TO
SPECIAL CIVIL APPLICATION NO. 1023 of 2014
With
SPECIAL CIVIL APPLICATION NO. 10797 of 2014
TO
SPECIAL CIVIL APPLICATION NO. 10800 of 2014
Page 1 of 75
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With
SPECIAL CIVIL APPLICATION NO. 4049 of 2014
TO
SPECIAL CIVIL APPLICATION NO. 4056 of 2014
With
SPECIAL CIVIL APPLICATION NO. 8536 of 2014
With
SPECIAL CIVIL APPLICATION NO. 196 of 2014
With
SPECIAL CIVIL APPLICATION NO. 12409 of 2014
With
SPECIAL CIVIL APPLICATION NO. 16078 of 2013
TO
SPECIAL CIVIL APPLICATION NO. 16080 of 2013
With
SPECIAL CIVIL APPLICATION NO. 18545 of 2013
With
SPECIAL CIVIL APPLICATION NO. 441 of 2014
TO
SPECIAL CIVIL APPLICATION NO. 445 of 2014
With
SPECIAL CIVIL APPLICATION NO. 595 of 2014
With
SPECIAL CIVIL APPLICATION NO. 4650 of 2015
TO
SPECIAL CIVIL APPLICATION NO. 4654 of 2015
With
SPECIAL CIVIL APPLICATION NO. 3772 of 2013
TO
SPECIAL CIVIL APPLICATION NO. 3784 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. JAYANT PATEL
and
HONOURABLE MR.JUSTICE N.V.ANJARIA
==========================================================
1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
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4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
==========================================================
JAISINH PARSHOTTAMBHAI PATEL....Appellant(s)
Versus
ESSAR POWER TRANSMISSION CO. LTD. & 5....Respondent(s)
==========================================================
Appearance:
MR YN OZA, SR. ADVOCATE with MR BALRAM D JAIN, ADVOCATE
for the Appellant(s) No. 1
MR AJ YAGNIK, ADOVCATE in LPA NO.1254/13 & LPA(ST)
NO.1532/13 for Appellant(s)
MR PARTH BHATT, ADVOCATE for the Respondent(s) No. 6
MS TRUSHA PATEL, ADVOCATE for the Respondent(s) No. 6
MR MIHIR JOSHI, SR. ADVOCATE with MR KEYUR GANDHI and MR
NISARG DESAI for NANAVATI ASSOCIATES, ADVOCATE for the
Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
JAYANT PATEL
and
HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 28/10/2015
CAV JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JAYANT PATEL)
1. All the captioned appeals constitute a group inasmuch as they arise from common order passed by learned Single Judge in the respective Special Civil Applications. The other Special Civil Applications forming part of these cognate matters have their common subject matter and identical challenge, which were ordered to be placed with the appeals and all the matters were heard together. They since raise common facts, contentions and issues, are being considered simultaneously by this judgment.
Page 3 of 75HC-NIC Page 3 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT 1.1 It may be stated that all the captioned petitions were ordered to be heard with Letters Patent Appeal No. 300 of 2013 and that all matters are principally at the same controversy and issues, however since the facts involved in Letters Patent Appeal No. 300 of 2013 were some more different, the same is segregated from the captioned matters for the purpose of judgment and the same is disposed of separately.
2. The appellants-petitioners are aggrieved by the action on part of the respondents in laying down high tension electric transmission lines for which the towers were erected in the agricultural lands of the appellants-petitioners. In that connection, the prayers in the writ petitions were to set aside order dated 04.06.2009 passed by Ministry of Power, Government of India, and also to set aside public notice dated 23.09.2008 published in the newspaper by respondent No.1 company-Essar Power Transmission Company Limited.
2.1 In so far as the Letters Patent Appeals are concerned, the corresponding Special Civil Applications came to be dismissed by learned Single Judge by common order dated 26.07.2013 on two fold grounds that all the petitioners had received compensation, thereby acquiesced in respect of their rights, which facts were not disclosed by them in their petitions, and secondly that the challenge was made by them belatedly after four years.
Page 4 of 75HC-NIC Page 4 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT 2.2 In order to ensure that petitioners could urge every aspect of their case on merits, the court permitted learned counsels appearing for them to raise all the points they wanted to raise on merits from the record.
2.3 This court heard learned senior counsel Mr. Y. N. Oza with learned advocate Mr. Balram Jain, learned advocate Mr. A. J. Yagnik for the respective appellants-petitioners, learned senior counsel Mr. Mihir Joshi for Nanavati Associates, advocate for respondent No.1 and Mr.Parth Bhatt, learned Standing Counsel for respondent No.6.
Facts
3. Instead of burdening the judgment with the facts of each case which are almost similar, representative facts are taken from the record of Letters Patent Appeal No. 1104 of 2013 relatable to Special Civil Application No. 10284 of 2013. The petitioner thereof, a farmer and the owner of land bearing survey No. 361 admeasuring Hectares 5-46-00 of the Village Aobha, Taluka Hansot, District Bharuch, pleaded in his writ petition that the said land was being cultivated by him and was only source of the livelihood. It was his case that respondent No.1 company highhandedly entered into his land for the purpose of erecting on the land the high tension electric towers; despite his objections, the company did not stop the work because of which the petitioner had to approach this court. The details of each of the Page 5 of 75 HC-NIC Page 5 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT appellant/s-petitioner/s and his/their respective lands are tabularized hereinbelow, Sl. Case No. Name of the Survey No(s) No. petitioner/- belonging to the appellant appellant
(s)-
/petitioner(s) 1 LPA 1104/2013 Jaisinh Survey No.361 Parshottam Patel Village Aobha Taluka Hanshot District Bharuch 2 LPA 1105/2013 Prakashbhai Survey No.471 Trikambhai Village Mandava-
Prajapati Buzarg
Taluka
Ankleshwar
District Bharuch
3 LPA 1106/2013 Arvindbhai Survey No.557
Ganpatbhai Patel paikee 1
Village Govali
Taluka Jagadia
District Bharuch
4 LPA 1107/2013 Priyawadanbhai Survey No.530
Purshottambhai Village Mandava-
Modi Buzarg
Taluka
Ankleshwar
District Bharuch
5 LPA 1108/2013 Kalpeshbhai Survey No.569
Nagjibhai Patel Village Govali
Taluka Jagadia
District Bharuch
6 LPA 1109/2013 Thakorbhai Survey No.268
Nathubhai Patel Village
Nanashanja
Taluka Jagadia
District Bharuch
7 LPA 1110/2013 Hasmukhbhai Survey No.267
Ramubhai Village
Nanashanja
Taluka Jagadia
District Bharuch
8 LPA 1111/2013 Riteshbhai Survey No.501
Bhagwatbhai Modi and 502
Village Mandava-
Buzarg
Taluka
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Ankleshwar
District Bharuch
9 LPA 1112/2013 Chiragbhai Survey No.76
Sureshchandra @ Village Chhapra Bhikhabhai Patel Taluka Ankleshwar District Bharuch 10 LPA 1113/2013 Chhatrasinh Survey No.336 Prakashsinh Village Nanashanja Taluka Jagadia District Bharuch 11 LPA 1114/2013 Piyushbhai Survey No.102 Bhikhabhai paikee 2 Village Govali Taluka Jagadia District Bharuch 12 LPA 1115/2013 Jigneshbhai Survey No.102 Dhansukhbhai paikee 1 Village Govali Taluka Jagadia District Bharuch 13 LPA 1116/2013 Manubhai Motibhai Survey No.167 Village Govali Taluka Jagadia District Bharuch 14 LPA 1117/2013 Lallubhai Survey No.47 Haribhai Patel Village Aobha Taluka Hanshot District Bharuch 15 LPA 1118/2013 Balubhai Survey No.69 Parbhubhai Patel Village Aashrma Taluka Hanshot District Bharuch 16 LPA 1119/2013 Ramanbhai Survey No.412 Narottambhai Village Aobha Patel Taluka Hanshot District Bharuch 17 LPA 1120/2013 Amarsinhbhai Survey No.30 Khusalbhai Patel Village Aobha Taluka Hanshot District Bharuch 18 LPA 1121/2013 Keshavbhai Survey No.340 Rupabhai Patel Village Aobha Taluka Hanshot District Bharuch 19 LPA 379/2014 Kishorebhai Nil Naginbhai Mistry & 8 others 20 LPA 380/2014 Sudhirsinh Nil Page 7 of 75 HC-NIC Page 7 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT Nathusinh Dodia & 2 others 21 LPA 1254/2013 Balubhai Not mentioned Hansinhjibhai Patel and 30 ors.
22 LPA 1129/2013 Ashwinbhai Survey No. 274 Vinodbhai Patel Village Uchhedia Taluka Jagadia District Bharuch 23 LPA 1130/2013 Dilipsinh Survey No. 330 Balwantsinh Village Uchhedia Dhariya Taluka Jagadia District Bharuch 24 LPA 1131/2013 Ashwinbhai Survey No. 270 Maganbhai Patel paikee 3 Village Uchhedia Taluka Jagadia District Bharuch 25 LPA(ST) Kantibha Survey No.43 1532/2013 Karshanbhai & 1 Village Or. Sonddamitha Tal. Olpad Dist. Surat 26 LPA (ST) Narsinhbhai Survey No.515, 1844/2013 Laxmanbhai Patel 501 and 1004 Village Aobha Tal. Hansot Dist. Bharuch 27 SCA 780/2014 Bipinbhai Survey No. 295 Murjibhai Machhi Village Uchhedia Taluka Jagadia District Bharuch 28 SCA 781/2014 Dineshbhai Survey No. 231 Kantibhai Patel Village Uchhedia Taluka Jagadia District Bharuch 29 SCA 782/2014 Naranbhai Survey No. 331 Kashibhai Patel Village Uchhedia Taluka Jagadia District Bharuch 30 SCA 783/2014 Ajitsing Survey No. 264 Jayamalsing Village Nanasanjha Taluka Jagadia District Bharuch 31 SCA 1019/2014 Jaswantbhai Survey No. 230
Dipsingbhai Patel Village Uchhedia Taluka Jagadia District Bharuch 32 SCA 1020/2014 Jayantibhai, son Survey No. 297 Page 8 of 75 HC-NIC Page 8 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT of Nanduben Village Uchhedia Narrotambhai Taluka Jagadia Patel District Bharuch 33 SCA 1021/2014 Bipinbhai son of Survey No. 272 Nanubhai Gababhai Village Uchhedia Taluka Jagadia District Bharuch 34 SCA 1022/2014 Ramilaben Survey No. 550 Chhotubhai Village Govali Patanvadiya Taluka Jagadia District Bharuch 35 SCA 1023/14 Garasiya Survey No.673 Nazirbhai Village Govali Kesurbhai Taluka Jagadia Dist. Bharuch 36 SCA Gharia Achal son Survey No. 307 10797/2014 of Dilipsinh Village Nanasanjha Taluka Jagadia District Bharuch 37 SCA Thakore Survey No. 229 10798/2014 Sanjaybhai son of Village Govali Gomanbhai Taluka Jagadia District Bharuch 38 SCA Panchal Survey No. 7 10799/2014 Naitikkumar son Village Govali of Maheshbhai Taluka Jagadia District Bharuch 39 SCA Patel Nehalkumar Survey No. 21 10800/2014 son of Hiteshbhai Village Govali Taluka Jagadia District Bharuch 40 SCA 4049/2014 Patel Chandubhai Survey No. 282-6 son of Karsanbhai Village Andada Parbhubhai Taluka Ankleshwar District Bharuch 41 SCA 4050/2014 Patel Devangbhai Survey No. 40 Ishwarbhai Village Govali Taluka Jagadia District Bharuch 42 SCA 4051/2014 Patel Sureshbhai Survey No. 578 Chitabhai Village Govali Taluka Jagadia District Bharuch 43 SCA 4052/2014 Patel Jagdishbhai Survey No. 29 Gulabhai Village Govali Taluka Jagadia District Bharuch 44 SCA 4053/2014 Anitabhai Survey No. 120 Page 9 of 75 HC-NIC Page 9 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT Mukeshbhai Karia Village Adadra Taluka Amkleshwar District Bharuch 45 SCA 4054/2014 Patel Mukeshbhai Survey No. 556 Revadas Village Uchhedia Taluka Jagadia District Bharuch 46 SCA 4055/2014 Surendrasinh Survey No. 36, Gemalsinh Barad 37 and 25 Village Adadra Taluka Amkleshwar District Bharuch 47 SCA 4056/2014 Ratilal Survey No. 1230 Parbhubhai Patel Village Obha Taluka Hansot District Bharuch 48 SCA 8536/2014 Naresh Chhitabhai Survey No. 531 Patel Village Govali Taluka Jagadia District Bharuch 49 SCA 196/2014 Patel Jayantibhai Survey No. 841 Ambubhai Village Govali Taluka Jagadia District Bharuch 50 SCA Modi Jayesh son Survey No. 530 12409/2014 of Priyavadan Village 27 Parshottambhai Mandva Taluka Ankleshwar District Bharuch 51 SCA Ramilabhai Survey No. 694 16078/2013 Govindbhai Patel Village Govali Taluka Jagadia District Bharuch 52 SCA Somabhai Amubhai Survey No. 42 16079/2013 Patel and 43 Village Govali Taluka Jagadia District Bharuch 53 SCA Girishbhai Survey No. 462 16080/2013 Dayalbhai Patel Village Obha Taluka Hansot District Bharuch 54 SCA Kiran Chitabhai Survey No. 221 18545/2013 Patel Village Govali Taluka Jagadia District Bharuch 55 SCA 441/2014 Pareshbhai Survey No. 288/1 Page 10 of 75 HC-NIC Page 10 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT Ishawarbhai Village Andada Aahir Taluka Ankleshwar District Bharuch 56 SCA 442/2014 Jayantibhai Survey No.83/2 Bhagvanbhai Village Borbhata Bet Taluka Ankleshwar District Bharuch 57 SCA 443/2014 Ishwarbhai Survey No.297 Khodabhai Aahir Village Andada Taluka Ankleshwar District Bharuch 58 SCA 444/2014 Chimanbhai Survey No.282-6 Chitabhai Patel Village Andada Taluka Ankleshwar District Bharuch 59 SCA 445/2014 Aadam Ahmad Patel Survey No.83/1 Village Borbhata Bet Taluka Ankleshwar District Bharuch 60 SCA 595/2014 Hiteshbhai Survey No.340 Jayantibhai Patel Village Uchhedia Taluka Jhagadia District Bharuch 61 SCA 4650/2015 Patel Kaniyalal Survey No. 38 Ramchandra Village Adadra Taluka Ankleshwar District Bharuch 62 SCA 4651/2015 Mahesbhai Survey No. 526 Ranchhodbhai Village Uchhedia Patel Taluka Jagadia District Bharuch 63 SCA 4652/2015 Ishwarbhai Survey No. 338 Ramjibhai Machhi Village Uchhedia Taluka Jagadia District Bharuch 64 SCA 4653/2015 Rameshbhai Survey No. 523 Kantibhai Machhi Village Uchhedia Taluka Jagadia District Bharuch 65 SCA 4654/2015 Barad Meghrajsinh Survey No. 5 Dipiksinh paikee 2 Village Adadra Taluka Page 11 of 75 HC-NIC Page 11 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT Ankleshwar District Bharuch 66 SCA/3772/13 Mukeshkumar No.22, Village Jamiyatram Patel Adodara, Tal.
Ankleshwar, Dist. Bharuch 67 SCA 3773/13 Dipaksinh No.24(1) Village Himmatsinh Borad Adadara, Tal.
Ankleshwar,
Dist. Bharuch
68 SCA 3774/13 Jitendrasinh No.168 Village
Nagjibhai Dodiya Govali, Tal.
Jagadia, Dist.
Bharuch
69 SCA 3775/13 Prakash No.556 Village
Govindbhai Patel Govali, Tal.
Jagadia, Dist.
Bharuch
70 SCA 3776/13 Panchal No.7 Village
Maheshbhai Govali, Tal.
Ambalal Jagadia, Dist.
Bharuch
71 SCA 3777/13 Rohitbhai No.841 Village
Somabhai Patel Govali, Tal.
Jagadia, Dist.
Bharuch
72 SCA 3778/13 Dattubhai No.557 Village
Thakorhai Patel Govali, Tal.
Jagadia, Dist.
Bharuch
73 SCA 3779/13 Gomanbhai No.139 Village
Gabubhai Pava Govali, Tal.
Jagadia, Dist.
Bharuch
74 SCA 3780/13 Hiteshbhai No.21 Village
Rambhai Patel Govali, Tal.
Jagadia, Dist.
Bharuch
75 SCA 3781/13 Devjibhai No.165 Village
Ramubhai Govali, Tal.
Patanvadia Jagadia, Dist.
Bharuch
76 SCA 3782/13 Rajeshkumar No.21 Village
Ramchandra Patel Adadara, Tal.
Ankleswar, Dist.
Bharuch
77 SCA 3783/13 Jayaben No.5 paikee 2
Himmatsingh Barad Village Adadara, Tal. Ankleswar, Dist. Bharuch.
Page 12 of 75 HC-NIC Page 12 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT 78 SCA 3784/13 Ranjitsingh No.115 and 19 Himmatsingh Barad paikee 2, Village Adadara, Tal. Ankleswar, Dist. Bharuch 3.1 In LPA No.1254/13, the facts are that the
original petitioners in SCA No.7646/13, had approached to this Court by seeking appropriate writ to prohibit the respondents from acting dehors the Act and the Rules and it is further prayed to direct the respondents to grant compensation in accordance with Rules and without discriminating the petitioners from others. The facts stated in the petition are more or less the same as referred to hereinabove in the earlier petitions. The permission under section 68 of the Act relates to transmission lines from Gandhar (NTPC) to Hazira for laying down of the electricity lines. There are about 43 petitioners out of which for petitioner no.43, the prayer was made to delete, in any case, 42 petitioners.
3.1.1 The lands are the different parcels of land owned by the respective petitioners and common fact is that the transmission lines are already laid down and the compensation was already paid. The cause of grievance on the part of the petitioners is that inspite of their objections, the electricity company proceeded to lay down the lines deviating from the route in the project. The petitioners having realised that the areas of the land which were demarcated for passing of transmission lines did not cover their land, they approached this Court by way of present Page 13 of 75 HC-NIC Page 13 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT petition.
3.1.2 The learned Single Judge when considered the matter on 03.09.2013, found that the petition was vague and it did not specify under which provision of a particular Act or Rules, the respondents were required to be prohibited. It was also found that without disclosing the material and vital facts, the petitioners filed the petition and came with unclean hands. Since the respondents pointed out that the compensation has already been paid to the petitioners and therefore, the learned Single Judge declined the petitioners to invoke the jurisdiction under Article 226 of the Constitution mainly on the ground of suppression of material and vital facts from this Court. Against the said order of the learned Single Judge, the Letters Patent Appeal before the Division Bench. As other appeals were already pending before the Division Bench, it were ordered to be heard with the present group of matters, referred to hereinabove.
3.2 The lands of the appellants-petitioners were sought to be utilized for laying down transmission towers of 400 KW extending over the area from the place called Shukaltirth to Hazira, by respondent No.1 company. Respondent No.1 is a transmission company registered under the Indian Companies Act, 1956 and it was pleaded by the petitioners that it discharges public duty by supplying electricity.
3.3 As per the order dated 04.06.2009 by the Ministry of Power, Government of India, which was published in the Gazette of India-Extraordinary dated Page 14 of 75 HC-NIC Page 14 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT 17.06.2009, licence approval came to be granted under Section 68 of the Electricity Act, 2003, to respondent No.1 company, which is a licensee for inter-state transmission of electricity under the Electricity Act, 2003 (hereinafter mentioned as "the Electricity Act"). The said order permitted three different transmission lines (i) Mahan STPS Switchyard-Sipat 400k V D/C triple moose conductor, (ii) Lilo of one ckt of existing 400 k V Vindhyachal-Korba line at Mahan STPP and (iii) Gandhar (NTPC)-Hazira 400 k V D/C twin moose. In light of the said order, respondent No.1 gave public notice indicating the villages through the lands of which the lines could pass for which notice was published on 23.09.2008 in the newspaper and was also published in the Gazette of India dated 10.01.2009. It was indicated that the inter-state line would pass as far as the territory of Gujarat is concerned, through Shukaltirth, Dhadal, Kandh, Kharod, Kosamba, Kim, Madoli, Aolpaad, Ankleshwar, Bhagad in Surat and Bharuch Districts.
3.4 By the aforesaid order dated 04.06.2009, the Ministry of Power, Government of India conferred under Section 164 of the Electricity Act and under the Indian Telegraph Act, 1885 all the powers which the telegraph authority would possess under the Indian Telegraph Act, 1885 for the purpose of placing the telegraph lines and posts. The terms and conditions for such approval dated 04.06.2009/17.06.2009 were mentioned as under,
(i) the approval is granted for 25 years;
Page 15 of 75HC-NIC Page 15 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT
(ii) The Licensee shall have to seek the consent of the concerned authorities i.e. local bodies, Railway, National Highways, State Highways etc. before erection of proposed lines;
(iii) Licensee shall have to follow regulations codes of the appropriate commission regarding transmission, O & M, open access etc.;
(iv) the Licensee has been entrusted with the responsibility of constructing the 400 k V D/C Mahan - Sipat Transmission Line of length around 315 kms, starting from Mahan TPP in Singrauli district of Madhya Pradesh and terminating at Sipat (WR) Pooling Station of PGVCL in Chattisgarh State LILO of Vindhyachar-Korba whose length is 20 km and 40D k VD/C Transmission line from Jhanor in Bharuch district to Hazira in Surat district of Gujarat of length 97 km. The details of the line are published in the Gazette of India of January 10, 2009;
(v) the approval is subject to compliance by the Licensee to the requirement of the provisions of The Electricity Act, 2013 and the rules made hereunder.
Broad common contentions of the Appellants- Petitioners
4. The contentions raised by the appellants- petitioners-the land owners concerned are virtually same and common stating them briefly, (a) the lines were laid in the lands of the petitioners eventhough Page 16 of 75 HC-NIC Page 16 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT neither in the public notice, nor in the Gazette, the survey numbers of the appellants-petitioners were mentioned. (b) Therefore, though the lands were not notified for the purpose, they were illegally and forcibly used by respondent No.1 company and the transmission lines were sought to be laid
(c) Respondent Company did not issue any notice and no opportunity was available to file the objections
(d) Respondent No.1 company never produced any authorized route-map and no such map was ever supplied to the petitioners. (e) Without any permission, the company diverted from the route-map for which the approval was given for the purpose of laying the lines. Though the villages were not mentioned, through the lands in such new villages, which belong to the appellants-petitioners, lines were laid. (f) Respondent No.1 and his officers used money and muscle powers and crash-entered the lands of the petitioners and committed encroachment. (g) It is averred in the Special Civil Application No. 10284 of 2013 that respondent No.1 and his employees entered the land with group of about 120 persons and by use of bulldozers and JCB machines, forcibly erected the towers; that as no notice was given, objections could not be filed; (h) In view of order of the Division Bench of this court Letters Patent Appeal No. 844 of 2012, respondent company ought to have approached the District Magistrate under Section 16(2) of the Telegraph Act, but instead the company directly entered the lands of the petitioners. (i) As the lands were not covered in the original permission and the Page 17 of 75 HC-NIC Page 17 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT company having deviated from the route and utilized the lands, the appellants-petitioners could not be able to claim even the compensation.
Defence and the stand of the Respondents 4.1 The stand of respondent No.1 company as evinced from the affidavit-in-reply filed in the original petition was that it had a valid licence, and that it applied to the Government of India for installing of Overhead Lines of the associated transmission system 2000 MW Mahan Super Thermal Power Project and the prior approval was granted by the Ministry of Power by letter dated 23.05.2008.
4.2 According to the company, the route alignment was not required to be published, nor was any procedure prescribed under any law for approval of such alignment/s at the relevant time. It is company's case that while empowering it under the provisions of Telegraph Act, it was required to submit route alignment/s for record with the appropriate authority. Even though there was no statutory requirement for the same.
4.3 As regards the deviation from the route, respondent No.1 company stated in its affidavit-in- reply thus, "However, at the stage of laying down the Transmission Lines the Respondent Company was compelled to make certain necessary changes. These were principally on account of the development and industrialization which had taken place between the time of the first survey in 2007 and the Page 18 of 75 HC-NIC Page 18 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT time of actual commencement of the execution of the work in 2010 and carrying out the same till 2013. The principal reason for the change was that the proposed route/s were on the eastern side of the industrial estate of Ankleshwar and consequent unavailability of power corridor. On account of extensive expansion of industrial estates of Ankleshwar and Jhagadia during the interregnum period, the transmission line had to be taken on the western side of the Ankleshwar Industrial Estate so as to avoid densely populated areas and Industrial Zone. This has resulted in the consequential changes of the transmission line. I state that even then the present actual route is closer to the bee line for a substantial portion than the routes. Thereafter, route alignment (being the shortest distance between the two termini of the transmission line) of the transmission line as laid down was submitted to the Central Electricity Authority for its record vide letter dated 12.08.2013."
4.4 It appears that by the aforesaid letter dated 12.08.2013, the company submitted to the Central Electricity Authority final route-map in respect of said Gandhar Hazira line and it was stated that the line was already charged on 16.03.2013 after successful inspection and charging permission given by the Central Electricity Authority. Thus, it is the case that even before the energisation of the lines, prior approval was granted by the Central Electricity Authority after inspection carried out on 27.02.2013. By letter dated 27.02.2013 by the Central Electricity Authority, Regional Inspectorial Organization approved the energisation of said 400 KW D/C Twin Moose Gandhar Hazira Transmission Line having length of 104.341 KM under Regulation 43 of Central Electricity Authority (Measures relating to Safety and Electric Supply) Page 19 of 75 HC-NIC Page 19 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT Regulations, 2010.
4.5 Respondent No.6-Central Electricity Authority in their affidavit-in-reply relied on Section 68 and Section 164 of the Electricity Act and on the applicable provisions of the Telegraph Act and submitted that line is commissioned after obtaining approval of the District Magistrate and paying compensation to the owners of the property through which the line passes.
4.6 It may be recorded that in the additional affidavit filed in Civil Application No. 10044 of 2013 in the Letters Patent Appeal No. 1104 of 2013, the appellant stated that respondent No.1 company had given Rs.6,31,000/- towards damage to the crops and trees, but no amount was paid towards loss of land. It was stated that though it was not necessary to return the said amount, but since his learned advocate had made a statement, the appellant was ready and willing to return the amount. It appears that the appellant annexed the documents relating to the procedure to be adopted for obtaining authorization under Section 164 of the Electricity Act by producing letter dated 10.05.2011 from the Government of India addressed to another transmission company.
4.7 Respondent No.1 company filed rejoinder affidavit to the said additional affidavit of the petitioner. In that, it was denied by the company that the compensation in respect of damage of crop only as alleged, but the compensation was paid as provided Page 20 of 75 HC-NIC Page 20 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT under the Act and the appellant had accepted the amount without any objection. It was stated that the appellant was paid compensation in stages which was accepted and now, the petitioner could not raise any objection. It was submitted that the procedure regarding obtaining authorization under Section 164 of the Act relied on by the appellant was notified by Government of India only on 18.04.2010, whereas respondent No.1 company got approval under Section 164 prior thereto.
4.8 It is not in dispute that each of the appellants or the petitioners as the case may be has received certain amount of compensation, the details of which was given by respondent No.1 company and not disputed. The said details are summarized in the tabular form as under, Sr. Name of the Village/ Surve Amount Date of No. Petitioner/Appellant Taluka y Payment No. Jaysinh Parshottambhai 776 50000.00 15.02.2012 Patel
1. LPA 1104/13 Obha Sanjay Kumar 160000.00 20.01.2012 Jaysinhbhai Patel 361 295000.00 21.11.2011 105000.00 22.12.2011 21000.00 26.12.2011 Total 631000.00 Prakashbhai Trikambhai 200000.00 08.02.2012 Prajapati Mandwa
2. Bujarz/Anklesh Arvindbhai Trikambhai 200000.00 02.01.2012 LPA 1105/13 war 471 Prajapati 150000.00 24.12.2011 200000.00 07.02.2012 Prakashbhai Trikambhai 474 200000.00 24.12.2011 Prajapati Prajapati Nanduben 494 126000.00 25.02.2012 Trikambhai Prakashbhai Trikambhai 474 200000.00 08.02.2012 Prajapati Page 21 of 75 HC-NIC Page 21 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT Total 1276000.00 Arvindbhai Ganpatbhai 170000.00 12.11.2012 Patel 245000.00 21.01.2012 557/1 LPA 1106/13 180000.00 18.04.2012 3 370000.00 19.02.2012 250000.00 23.05.2012 Thakorbhai Ganpatbhai Gowali/Jhagadi 557/2 a 470000.00 17.01.2012 Patel 552 125000.00 19.10.2011 557 60000.00 02.11.2011 552 150000.00 08.07.2011 414 75000.00 13.09.2011 Total 2095000.00 4 LPA 1107/13 Priyawadanbhai Mandwabuzarj/ 530 240000.00 25.02.2013 Purshottambhai Modi Ankleshwar 120 200000.00 13.02.2012 150000.00 18.01.2012 150000.00 24.12.2011 Total 740000.00 240000.00 13.09.2011 5 LPA 1108/13 Kalpeshbhai Nagjibhai Govali/Bharuch 569 200000.00 09.03.2012 Patel is son of Dayabhai Bikhabhai Poatel 150000.00 24.11.2011 150000.00 25.06.2011 Total 740000.00 6 LPA 1109/13 Thakorbhai Nathubhai 268 67200.00 14.12.2011 Patel Nana Total 67200.00 Sanja/Jhagadia 7 LPA 1110/13 Ramubhai Dahyabhai 267 85050.00 14.12.2011 Patel Total 85050.00 Pushpaben Bhagvatbhai 501 100000.00 18.01.2012 8 LPA 1111/13 Modi 75000.00 17.02.2012 Ankleshwar/Ma ndwabuzarj 100000.00 30.12.2011 Bhagvatbhai Chimanbhai 502 200000.00 18.01.2012 100000.00 07.02.2012 200000.00 30.12.2011 Total 775000.00 9 Patel Chiragbhai 267750.00 14.03.2012 LPA 1112/13 Sureshbhai Hirabhai Chhapra/Ankles 76 hwar Patel Sureshbhai 235000.00 02.03.2013 Hirabhai Patel Chiragbhai 400000.00 12.03.2013 Sureshbhai Hirabhai 40000.00 07.05.2013 Total 942750.00 10 LPA 1113/13 Chhatrasinh Pratapsinh Uchediya 336 118000.00 21.12.2011 Nakum Total 118000.00 Page 22 of 75 HC-NIC Page 22 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT 11 LPA 1114/13 Piyushbhai Patel Gowali/Jhagadi 102/2 93100.00 22.12.2011 a 102000.00 15.03.2013 Total 195100.00 12 LPA 1115/13 Jigneshbhai Gowali/Jhagadi 102/1 149450.00 22.12.2011 Dhansukhbhai Patel a Total 149450.00 137 36750.00 13.12.2011 13 LPA 1116/13 Manubhai Motibhai Gowali/Jhagadi 167 78750.00 14.12.2011 a 137 3500.00 24.12.2011 167 28000.00 05.10.2011 Total 147000.00 14 LPA 1117/13 Obha 47 25000.00 17.10.2011 Lallubhai Haribhai Patel 85000.00 23.01.2012 Total 110000.00 15 185000.00 07.06.2011 45000.00 11.10.2011 LPA 1118/13 Balubhai Parbhubhai Asarma 69 Patel 68000.00 03.10.2011 250000.00 21.01.2012 50000.00 18.01.2012 52000.00 23.01.2012 15000.00 31.12.2011 Total 665000.00 412 196000.00 05.02.2011 407 34000.00 28.10.2011 16 LPA 1119/13 Ramanbhai Narottambhai Patel 412 24000.00 31.12.2011 413 38000.00 25.01.2012 Patel Hareshbhai 50000.00 17.01.2012 Narotambhai Obha 412 Natwarbhai Narotambhai 125000.00 17.01.2012 Patel Patel Shantilal 320 50000.00 19.01.2012 Narotambhai Natwarbhai Narotambhai 412 51000.00 28.11.2011 Patel Ramanbhai 294 120000.00 15.05.2012 Narottambhai Patel Total 688000.00 Jaysinhbhai 32 70000.00 21.06.2011 Amarsinhbhai Patel Amarsinhbhai 38 40000.00 10.10.2011 17 LPA 1120/13 Khushalbhai Patel Obha 32 30000.00 04.11.2011 Jaysinhbhai 38 70000.00 21.06.2011 Amarsinhbhai Patel 30 125000.00 21.01.2012 38 10000.00 15.12.2011 38 10000.00 16.12.2011 Page 23 of 75 HC-NIC Page 23 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT Patel Prittben Amarsinh 30 25000.00 21.01.2012 Patel Vinodbhai 32 7000.00 02.02.2012 Amarsinh Total 387000.00 18 LPA 1121/13 Keshavbhai Rupalbhai 345 27000.00 31.12.2011 Patel Obha 340 150000.00 17.01.2012 52000.00 18.11.2011 94500 15.07.2011 Total 323500.00 19 LPA 1129/13 Ashwin Vinodbhai Patel 274 10000.00 24.10.2011 86500.00 13.01.2012 22000.00 21.06.2011 Uchediya Total 118500.00 20 LPA 1130/13 Dilipsinh Balvantsinh 330 50000.00 29.04.2013 Dhariya 188650.00 14.12.2011 Total 238650.00 21 LPA 1131/13 Ashwin Maganbhai Patel 269 18500.00 15.03.2013 270/3 43700.00 13.01.2012 Total 62200.00 Ankurbhai 47000.00 27.01.2012 Pravinbhai Patel Babubhai Hasjibhai 245000.00 21.06.2011 1 Patel Sarsana 219 65000.00 17.10.2011 47000.00 27.01.2012 Vijaybhai Babubhai 240000.00 13.06.2012 Patel 35000.00 05.07.2011 Total 679000.00 K A Patel 200000.00 2 Bhaskarbhai 22000.00 442 Bhikhabhai Patel KA Patel 480000.00 Bhaskarbhai 455000.00 Bhikhabhai Patel KA Patel 1000000.00 KA Patel 45000.00 Tot 2202000.00 al 3 Niruben Jitendrabhai 610 300000.00 22.08.2012 Patel 1000000.00 27.08.2012 Tot 1300000.00 al 4 Snehalkumar Bhatgam 610 44000.00 Jitendrabhai Patel 235000.00 25.02.2012 142000.00 25.05.2012 1040000.00 13.07.2012 Page 24 of 75 HC-NIC Page 24 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT Total 1461000.00 5 Shantaben 546 Natwarbhai Ranodaria Total 6 Hiitendrabhai 546 850000.00 13.05.2013 Natwarbhai Ranodaria 920000.00 27.06.2012 Total 1770000.00 7 Sureshchandra 611 400000.00 01.03.2013 Chandulal Total 400000.00 8 Dhirajbhai Lallubhai 102 480000.00 18.08.2012 Patel Total 480000.00 9 Hasmukhbhai 100 800000.00 18.08.2012 Maganlal Patel Total 800000.00 22 LPA1254/13 10 Parsottambhai 545 300000 29.06.2013 Natwarbhai Ranodaria 240000.00 16.11.2012 Total 540000.00 11 Bipinbhai 436 375000.00 21.08.2012 Jagjivanbhai Patel Dakxaben Bipinbhai 175000.00 21.08.2012 Patel Total 550000.00 12 Mukeshbhai 436 Jagjivanbhai Patel Total 13 Jitendra Bhogilal 427 55000.00 17.01.2012 Patel 450000.00 01.08.2012 Total 505000.00 14 Maheshbhai 108 880000.00 04.09.2012 Chandubhai Total 880000.00 15 Nileshbhai Takarma 542/B Ranchoddbhai Total 16 Hinaben Nileshbhai Bhatgam 542/B 920000.00 27.08.2012 Patel Total 920000.00 17 Pravinchandra Takarma 315000.00 21.06.2011 Ishwarbhai Patel 62/A 550000.00 16.03.2012 92/B 35000.00 01.02.2012 Page 25 of 75 HC-NIC Page 25 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT 621/B 65000.00 29.10.2011 62/B 63000.00 27.01.2012 62 500000.00 05.06.2012 Total 1528000.00 18 Sudhaben 621B 48000.00 20.11.2011 Pravinchandra Patel 24000.00 29.10.2011 62/B 120000.00 16.03.2012 160000.00 13.06.2012 Total 352000.00 19 Jayantilal Nathubhai Narthan 574 100000.00 01.03.2013 Total 10000.00 20 Pravinbhai 574 162500.00 01.03.2013 Nathubhai Total 162500.00 21 Sanketkumar 456 22000.00 14.02.2012 Mukeshbhai Total 22000.00 22 Kiritchandra Ghelatbhai Total Shantilal 86000.00 26.03.2012 Narottambhai Patel 112000.00 07.05.2012 23 86000.00 07.05.2012 /2 4 920000.00 22.08.2012 Girishkumar 780000.00 18.08.2012 Shantilal Patel 122000.00 31.12.2012 Anilbhai Shantilal 880000.00 03.08.2012 Patel Bhatgam Dipesh Maganbhai 300000.00 14.07.2012 Patel Sukhdevbhai Ratilal 350000.00 13.07.2012 Patel Total 3636000.00 25 Lallubhai 21/B /2 Durlabhbhai 6 Navantibhai 21/A 4800000.00 21.08.2012 Lallubhai Patel Bhadreshbhai 21/B 520000.00 21.02.2012 Lallubhai Patel Total 1000000.00 27 Ramanbhai Maganbhai Patel 28 Rajulaben 485 Ramanbhai Patel 29 Nandanben Ramanbhai Page 26 of 75 HC-NIC Page 26 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT 30 Anitaben Ramanbhai Total 31 Harshadbhai 432 1050000.00 03.08.2012 Chandubhai Patel Total 1050000.00 32 Kalpeshkumar 432 Harshadbhai Total 33 Maganbhai Sodamitha 157 625000.00 21.06.2011 Hasajibhai Patel Total 625000.00 12.03.2012 34 Kikuben Nathubhai Total 35 Dhanuben 138 Nathubhai Total 36 Jashuben Nathubhai Total 37 Urmilaben 400000.00 12.03.2012 Nathubhai 47000.00 16.04.2012 Total 447000.00 38 Hansaben 147 200000.00 13.12.2011 Nathubhai Total 200000.00 39 Dayakorben 147 185000.00 13.12.2011 Nathubhai Total 185000.00 40 Bhauben Nathubhai 147 200000.00 13.12.2011 Total 200000.00 41 Kanchanben 147 200000.00 13.12.2011 Nathubhai Total 200000.00 23 Mukeshkumar 300000.00 27.02.2012 Jamiyatram Patel 50000.00 16.05.2011 SCA 3772/13 22 75000.00 09.05.2011 275000.00 28.01.2012 Hitendrabhai Jamiyatram Adadara/Ankles 172 200000.00 28.01.2012 Patel hwar Total 900000.00 24 SCA 3773/13 Dipaksinh Himmatsinh 24/1 300000.00 17.02.2012 Barad 100000.00 28.04.2011 250000.00 09.03.2012 300000.00 05.06.2012 Total 1050000.00 25 SCA 3774/13 Jitendrasinh Nagjibhai 168 100000.00 03.10.2011 Page 27 of 75 HC-NIC Page 27 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT Dodiya 237200.00 21.12.2011 Total 337200.00 26 SCA 3775/13 Prakash Govindbhai 556 125000.00 02.11.2011 Patel 450000.00 19.01.2012 125000.00 24.11.2011 Total 700000.00 27 SCA 3776/13 Panchal Maheshbhai 7 90000.00 06.07.2011 Ambalal 85750.00 15.12.2011 60000.00 03.10.2011 Total 235750.00 841 210000.00 18.10.2011 40000.00 10.10.2011 Gowali/Jhagadi 140000.00 18.10.2011 28 SCA 3777/13 Rohitbhai S. Patel a 841/B 35000.00 22.12.2011 77500.00 22.10.2011 25000.00 02.05.2011 841 48300.00 24.12.2011 16800.00 26.12.2011 30800.00 26.12.2011 Total 623400.00 29 SCA 3778/13 Dahabhai T. Patel 557/2 150000.00 08.07.2011 125000.00 19.10.2011 250000.00 23.05.2012 470000.00 17.01.2012 60000.00 02.11.2011 414 75000.00 13.09.2011 Total 1130000.00 30 SCA 3779/13 Gomanbhai Gabubhai 139 85000.00 10.10.2011 Pava 15000.00 03.03.2011 52200.00 31.12.2011 Total 152200.00 168 90000.00 10.10.2011 31 SCA 3780/13 Hiteshbhai Rambhai 121800.00 14.12.2011 Patel 10000.00 15.03.2011 Dineshbhai Rambhai 7500.00 15.03.2011 Shaankarbhai Total 229300.00 32 SCA 3781/13 Devjibhai Ramubhai 165 66000.00 12.10.2011 Patanvadia 5000.00 11.03.2011 Total 71000.00 33 SCA 3782/13 Rajeshkumar 21 103400.00 29.02.2012 Ramachandra Patel Tot 103400.00 Adadra/Anklesh al Page 28 of 75 HC-NIC Page 28 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT 34 SCA 3783/13 Jayaben Himmatsingh war 5/ 100000.00 12.12.2011 Barad Paiki/2 300000.00 17.02.2012 250000.00 09.03.2012 Total 650000.00 35 SCA 3784/13 Ranjiitsingh Himmatsingh Sisodra/Anklesh 115 75000.00 06.05.2011 Barad war 50000.00 12.05.2011 250000.00 05.06.2012 451000.00 03.03.2013 Total 826000.00 36 SCA 1022/14 Ramilaben Patanvadia Govali 440 100000.00 19.11.2011 350000 19.01.2012 550 60000 05.05.2012 Total 510000 175000 20.10.2011 37 SCA 1023/14 Kesurbhai Nathubhai Govali 373 20000 10.10.2011 30000 16.06.2011 40000 02.12.2011 Total 265000 38 SCA 16078/14 Prakashbhai Govindbhai Govali 556 125000 02.11.2011 Prakashbhai Patel 125000 24.11.2011 Ramilaben Govindbhai Jaghadia 694 91000 31.12.2011 Patel Prakashbhai Govindbhai Govali 556 450000 19.01.2012 Ramilaben Govindbhai 100000 26.02.2013 Patel Total 891000 39 SCA 16808/14 Girishbhai Dayalbhai Obha 27000 13.10.2011 Patel Hansot 27000 28.10.2011 Olpad 20000 20.10.2011 Umedbhai Dayalbhai Hansot 24000 18.11.2011 Patel Balubhai Dahyabhai Olpad 20000 12.11.2011 Patel Total 118000 40 SCA 4049/14 Patel Chandubhai Andada 120000 14.03.2012 Karsanbhai 20000 01.06.2011 282/6 150000 29.02.2012 Survari 30000 19.04.2011 Total 320000 41 SCA 4050/14 Devangkukar Ishwarbhai Govali 40 51450 13.12.2011 Patel Total 51450 42 SCA 4051/14 Sureshbhai Chitabhai Jhagadia 578 100000 28.09.2011 Patel 150000 19.01.2012 Page 29 of 75 HC-NIC Page 29 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT 50000 25.04.2012 Total 300000 43 SCA 4052/14 Patel Jagdishbhai Jhagadia 101 36050 14.12.2011 Gulabbhai Total 36050 44 SCA 4054/14 Mukeshbhai Uchediya 556 235000 24.11.2011 Revadasbhai 85000 17.02.2012 85000 28.11.2011 Revaben Dhanabhai 85000 17.02.2012 235000 24.11.2011 85000 28.11.2011 Dahiben Nagjibhai 85000 10.02.2012 235000 24.11.2011 25000 28.11.2011 75000 15.10.2011 100000 23.05.2012 75000 Total 1465000 45 SCA 4055/14 Surendrasinh Gemalsinh Sisodra 164 500000 14.01.2012 Barad Barad Dilipsinh Adadra 114/2 140000 04.07.2012 Gemalsinh Barad Mahendrabhai 5/1 90000 28.06.2012 Gemalbhai Total 730000 46 SCA 4056/14 Ratilal Parbhubhai Patel Obha 1230 5000 18.01.2012 Total 5000 47 SCA 196/14 Patel Jayantibhai Govali 841/B 35000 22.12.2011 Ambubhai 42 28000 26.12.2011 841/B 25000 02.05.2011 42 48300 24.12.2011 841 140000 18.10.2011 Total 276300 48 SCA 16079/13 Somabhai Ambubhai 210000 18.10.2011 Patel 841 40000 10.10.2011 Govali 77500 22.12.2011 30800 26.12.2011 16800 26.12.2011 Total 375100 49 SCA 8536/14 Naresh Chitabhai Patel Govali 531 244000 25.04.2012 138600 24.12.2011 275000 Total 657600 Page 30 of 75 HC-NIC Page 30 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT Submissions of Learned Advocates 4.9 Learned senior counsel for he appellants- petitioners taking serious exception to the conduct of respondent company in entering the lands by use of force, submitted that the entire action was devoid of authority. He submitted that the deviation in the route was in the range extending to 50 km long. He submitted that the appellants-land owners were visited with serious consequences without even a prior notice and depriving them to lodge objections as the respondent No.1 deviated from the route and utilized their land though the villages were not notified in the route. On the necessity of observing the principle of audi alteram partem and complying with the natural justice, he relied on decision in Canara Bank and ors. vs. Debasis Das and ors. [(2003) 4 SCC 557]. He submitted that since lines were laid unauthorizedly and without being backed by any authority, the same may be directed to be removed by executing demolition thereof. Learned counsel for the petitioner for his submission tried to drew support from decision of Division Bench of this court in Sarvesh Atulbhai Gohil vs. Jamnagar Urban Development Authority and ors. [2014 (2) G.L.H. 26]. Learned counsel raised a issue that the laying down of the transmission lines was required to be published and the work ought to have been got done by obtaining competitive rates by requisite process, which according to him was a public interest aspect given a go-bye by the company. Learned counsel relied on National Electricity Policy, 2005 and further relied on Guidelines For Encouraging Page 31 of 75 HC-NIC Page 31 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT Competition in Development of Transmission Projects And Competitive-Bidding For Transmission Service issued by Ministry of Power. It may be stated at this stage itself that the said point was not raised before the learned Single Judge, nor was such a contention ever pleaded. This apart, the contention is stated to be rejected as in laying down the transmission lines, inviting competitive rates etc. does not apply and the said aspect was totally misconceived.
4.10 The learned counsel Mr. Oza appearing with Mr. B.D. Jain, did contend that if ultimately this Court finds that as the lines are already laid down, appellants can only claim for appropriate compensation, let the sufficiency of the compensation be decided by any former Judge of this Court who may be appointed by this Court and the electricity/transmission company may pay the compensation accordingly. However, he resisted the course for relegating his clients before the learned District Judge.
4.11 Whereas, Mr.A.J. Yagnik, learned advocate appearing in LPA No.1254/13 contended that as the transmission lines are unauthorisedly laid down, the appellants are not interested in compensation, but they are asserting the removal of the transmission lines from the land of the respective petitioners since as per him, the action was illegal.
4.12 Having known about the submission made by Mr. Yagnik for removal of the electricity lines, Page 32 of 75 HC-NIC Page 32 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT Mr.Oza, learned counsel appearing with Mr.Jain then submitted that his clients too would be interested for removal of the lines at the first instance, but alternatively for compensation, if this Court is not inclined to grant the relief for removal of the lines from the land of his clients, but he did maintain that the adjudication for ascertainment of the sufficiency of the compensation should be by any former Judge of this Court and not the District Judge as per the Indian Telegraph Act, 1885 (hereinafter referred to as the "Telegraph Act") 4.13 Learned senior counsel Mr. Mihir Joshi for respondent No.1 company submitted that the appellants had unwarrantedly expanded the scope of the controversy in Letters Patent Appeals since the order of the learned Single Judge which was the subject matter of examination was limited and specific in its reasoning to dismiss the petitions. He relied on the decision of the Supreme Court in M.T.W. Tenzing Namgyal Vs Motilal Lakhodia [(2003) 5 SCC 1] which in its paragraph 28 ruled in the context of the facts of that case that where the owner of the land accepted... in Government of India. Yet another decision in Urmila Roy Vs Bengal Peerless Housing Development Company limited [(2009) 5 SCC 242] was relied on to submit with reference to paragraph 60 thereof that not only the appellants-land owners accepted the compensation, but woke up to raise challenge after a gap of four years, therefore they acquiesced in the matter and cannot now turn around to say that the action was bad in law. On the aspect of delay in challenging action, Page 33 of 75 HC-NIC Page 33 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT learned counsel relied on Reliance Petroleum Limited Vs Zaver Chand Popatlal Sumaria [(1996) 4 SCC 579], in particular paragraph 12 thereof, and Andhra Pradesh Industrial Infrastructure Corporation Limited Vs Chinthamaneni Narasimha Rao [(2012) 12 SCC 797] in particular paragraphs 11, 18 and 19 thereof.
The Relevant Provisions and the Scheme of Electricity Act with focus on power of the Licencee Company to lay Transmission Lines vis-a-vis rights of the land owners
5. In order to appreciate the statutory scheme of Electricity Act, 2003 and to comprehend therefrom caught right flow for the land owners against the licensee company when transmission lines for electricity are laid and the towers are installed by using private lands.
Section 67 and Section 68 of the Electricity Act 5.1.1 Section 67 and 68 of the Electricity Act are extracted from the statute book. Section 67 deals with the area of supply.
"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;Page 34 of 75
HC-NIC Page 34 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT
(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 expenses therefor;
(h) the procedure for carrying out other works near sewers, pipes or other electric lines or works;
Page 35 of 75HC-NIC Page 35 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT
(i) the procedure for alteration of the position of pipes, 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 Page 36 of 75 HC-NIC Page 36 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT determining any difference or 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."
5.1.2 Section 68 is quite relevant and the same is as under.
"68. Overhead lines (1) An overhead line shall, with prior approval of the Appropriate Government, be installed or kept installed above ground in accordance with the provisions of sub-section (2).
(2) The provisions contained in sub-section (1) shall not apply-(a) in relation to an electric line which has a nominal voltage not exceeding 11 kilovolts and is used or intended to be used for supplying to a single consumer;
(b) in relation to so much of an electric line as is or will be within premises in the occupation or control of the person responsible for its installation; or
(c) in such other cases, as may be prescribed.
(3) The Appropriate Government shall, while granting approval under sub-section (1), impose such conditions (including conditions as to the ownership and operation of the line) as appear to it to be necessary.
(4) The Appropriate Government may vary or revoke the approval at any time after the end of such period as may be stipulated in the approval granted by it.
(5) Where any tree standing or lying near an overhead line or where any structure or other object which has been placed or has fallen near an overhead line subsequent to the placing of such line, interrupts or interferes with, or is likely to interrupt or interfere with, the Page 37 of 75 HC-NIC Page 37 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT conveyance or transmission of electricity or the accessibility of any works, an Executive Magistrate or authority specified by the Appropriate Government may, on the application of the licensee, cause the tree, structure or object to be removed or otherwise dealt with as he or it thinks fit.
(6) When disposing of an application under sub-
section (5), an Executive Magistrate or authority specified under that sub-section shall, in the case of any tree in existence before the placing of the overhead line, award to the person interested in the tree such compensation as he thinks reasonable, and such person may recover the same from the licensee. Explanation.-For the purposes of this section, the expression "tree" shall be deemed to include any shrub, hedge, jungle growth or other plant."
5.1.3 Thus, Section 67 of the Act provides that the electricity supply lines may be laid by the licensee, but as per Section 67(2), appropriate Government may make rules in this behalf, for the case and circumstance, in writing, appropriate Government or local authority or owner or occupier may be required for carrying out the work and the Rules may also provide for authority, which may grant permission in the circumstance, where such carrying out of the work is objected by the owner or occupier. The nature and the period of notice before carrying out the works may also be prescribed by the Rules, including the consideration of the objections and the suggestions determination and the payment of compensation or the rent, etc. Section 68 specifically deals with the installation or continuation of the installed overhead lines, but after the approval so granted by the Page 38 of 75 HC-NIC Page 38 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT appropriate Government.
5.2 Section 176 of the Act provides the power with the Central Government to make Rules and as per Section 176(2)(e) and (f), the Rules may be framed for the works of licensee effecting the property of the owner or the occupiers under Section 67(2). Section 176(1) and (2)(e) and (f), for ready reference, read as under:-
176. (1) The Central Government may, by notification, make rules for carrying out the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: -
(a) xxx
(b) xxx
(c) xxx
(d) xxx
(e) the works of licensees affecting the property of owner or occupier under sub-section (2) of section 67;
(f) such other works which may be prescribed under clause (c) of sub-section (2) of Section 68;
5.2.1 As per Section 180 of the Act, the State Government is also authorized to make Rules for carrying out the provisions of the Act and Sub-section (2) of Section 180 (Clause B and C) for ready reference as under:-
180. (1) The State Government may, by Page 39 of 75 HC-NIC Page 39 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT notification, make rules for carrying out the provisions of this Act.
(2) In particular and without prejudice to the generality of foregoing power, such rules may provide for all or any of the following matters, namely: -
(a) xxx
(b) the works of licensees affecting the property of other persons under sub- section(2) of section 67;
(c) such other matters which may be prescribed under clause (c) of subsection (2) of section 68;
5.2.2 As per the above provisions, Rules may be framed for the works of the licensee effecting the properties of other persons under Section 67(2) and it may also be framed for other matters, as may be prescribed under Clause(c) of Section 68(2).
5.2.3 If the language of Section 176(2)(e) is compared with the language under Section 180(2)(b), it appears that for the property of the owner or occupier, the power to make Rules vests to the Central Government, whereas the property of other persons, power to make Rules vests to the State Government and the reason being that Section 67(2)(a) provides for the consent in writing of :(1) appropriate Government; (2) local authority; and (3) owner or occupier. As observed earlier, language used under Section 176(2)
(e), the words used are the property of owner or occupier, whereas under Section 180(2)(b), the words used are property of other persons. Therefore, the aforesaid such distinction is required to be Page 40 of 75 HC-NIC Page 40 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT considered hereinafter.
5.2.4 The works of licensees Rules 2006 have been framed by the Central Government in exercise of the power under Section 176(2) (Clause e) read with Section 67(2) of the Act and such Rules have come into force from 18.4.2006. Rule 3, which is relevant read as under:-
3. Licensee to carry out works.- (1) A licensee may
(a) carry out works, lay down or place any electric supply line or other works in, through, or against, any building, or on, over or under any land whereon, whereover or whereunder any electric supply-line or works has not already been lawfully laid down or placed by such licensee, with the prior consent of the owner or occupier of any building or land;
(b) fix any support of overhead line or any stay or strut required for the purpose of securing in position any support of an overhead line on any building or land or having been so fixed, may alter such support:
Provided that in case where the owner or occupier of the building or land raises objections in respect of works to be carried out under this rule, the licensee shall obtain permission in writing from the District Magistrate or the Commissioner of Police or any other officer authorised by the State Government in this behalf, for carrying out the works:
Provided further that if at any time, the owner or occupier of any building or land on which any works have been carried out or any support of an overhead line, stay or strut has been fixed shows sufficient cause, the District Magistrate or the Commissioner of Police, or the officer authorised may by order in writing direct for any such works, support, stay or strut to be removed or Page 41 of 75 HC-NIC Page 41 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT altered.
(2) When making an order under sub-rule (1), the District Magistrate or the Commissioner of Police or the officer so authorised, as the case may be, shall fix , after considering the representations of the concerned persons ,if any, the amount of compensation or of annual rent, or of both, which should in his opinion be paid by the licensee to the owner or occupier.
(3) Every order made by a District Magistrate or a Commissioner of Police or an authorised officer under sub-rule (1) shall be subject to revision by the Appropriate Commission.
(4) Nothing contained in this rule shall effect the powers conferred upon any licensee under section 164 of the Act.
5.2.5 The aforesaid Rules show that the licensee may carry out the works with the prior consent of the owner or occupier of any building or land, but if any objection is raised by the owner or occupier of the building or land, the licensee shall obtain permission in writing from the District Magistrate or the Commissioner of Police, or any officer as may be authorized by the State Government in this behalf. It also provides that the owner or occupier of the building can also make application to the District Magistrate or the police Commissioner or the Officer, as the case may be, for removal of the work already undertaken.
5.2.6 Sub-Rule (2) of Rule 3 provides that the District Magistrate or the Commissioner of Police or the officer so authorized, shall also fix the amount of compensation or annual rent or both to be paid by Page 42 of 75 HC-NIC Page 42 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT the licensee to the owner or the occupier. The power of the District Magistrate or the Commissioner of Police or the authorized officer, as the case may be, is subject to revision by appropriate commission. Sub- Rule (4) provides that nothing in this Rule shall affect the power conferred upon any licensee under Section 164 of the Act.
5.3 Section 164 of the Act reads thus, "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 transmission of electricity or for the purpose of telephonic or telegraphic communication 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, 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."
"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.Page 43 of 75
HC-NIC Page 43 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT (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.
(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 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."
5.3.1 A reference to Telegraph Act for laying down Telegraph Lines would be relevant. Sections 10 reads as under:-
10. Power for telegraph authority to place Page 44 of 75 HC-NIC Page 44 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT and maintain telegraph lines and posts.µThe telegraph authority may, from time to time, place 27 Inserted by the Indian Telegraph (Amendment) Act, 2003. Act No. 8 of 2004, received the assent of the President on the 9 January, 2004, with retrospective effect from 1.4.2002 and maintain a telegraph line under, over, along, or across, and posts in or upon any immovable property:
Provided thatµ (a) the telegraph authority shall not exercise the powers conferred by this section except for the purposes of a telegraph established or maintained by the [Central Government], or to be so established or maintained;
(b) the [Central Government] shall not acquire any right other than that of user only in the property under, over, along, across in or upon which the telegraph authority places any telegraph line or post;
and (c) except as hereinafter provided, the telegraph authority shall not exercise those powers in respect of any property vested in or under the control or management of any local authority, without the permission of that authority; and (d) in the exercise of the powers conferred by this section, the telegraph authority shall do as little damage as possible, and, when it has exercised those powers in respect of any property other than that referred to in clause (c), shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers.
11. Power to enter on property in order to repair or remove telegraph lines or posts.µThe telegraph authority may, at any time, for the purpose of examining, repairing, altering or removing any telegraph line or post, enter on the property under, over, along, across, in or upon which the line or post has been placed.
5.3.2 Section 16 is extracted below.
Page 45 of 75HC-NIC Page 45 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT
16. Exercise of powers conferred by section 10, and disputes as to compensation, in case of property other than that of a local authority.µ(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 this being exercised, he shall be deemed to have committed an offence under section 188 of the Indian Penal Code (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 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 Page 46 of 75 HC-NIC Page 46 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT District Judge under subsection (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.
5.3.3 The above provisions show that the Telegraph Authority may place and maintain the Telegraph Line over, along and across, in or upon any immovable property. However, the requirement as per Clause (d) of Section 10 is that the authority shall do as little damage as possible and when it has to exercise the power in respect of the property other than that of the local authority, it shall pay full compensation to all persons interested for any damage sustained by them because of exercise of the powers.
5.3.4 Section 16 of the Telegraph Act says that if the exercise of power under Section 10 is resisted or obstructed, the District Magistrate may order the authority to permit such exercise. After passing of such order, if any person resists the exercise of those powers by the authority, such would be an offence under Section 188 of IPC. Section 16(3) provides that if there is any dispute concerning to sufficiency of compensation to be paid under Section 10(d), an application may be made to the District Judge within whose jurisdiction the property is situated and such dispute is to be finalized by the District Judge as per Section 16(4)."
5.3.5 The provisions of the Electricity Act and Page 47 of 75 HC-NIC Page 47 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT the Telegraph Act made interactive by the Legislature, that the licencee company authorized to lay down the electric lines by clothing with powers of the Telegraph Authority under the Telegraph Act as is revealed from Section 10 read with Section 16 of the Telegraph Act would be required to act in accordance with the statutory mandate. (i) Do as little damage as possible; (ii) Pay full compensation to all persons interested for the damage sustained by them by the reason of exercise of power; (iii) owner or occupier will have right to resist or obstruct the exercise of power under Section 10(d); (iv) In case of resistance or obstruction by the owner or occupier, the authority has to approach before the District Magistrate for order under Section 16(1); (v) The District Magistrate while exercising power under Section 16(1) has to exercise discretion for passing the order permitting the exercise of power; (vi) If there is any dispute arises for sufficiency of compensation, either party has right to make application before the District Judge; (vii) The District Judge has to finalize the amount of compensation payable by the authority to the owner or occupier.
Provisions of the Telegraph Act, 1885 Apply
6. As could be noticed from the above provisions and the working thereof, Section 164 empowers the appropriate government to entitle a licencee for placing electric lines or electric plant or transmission and for that the appropriate government may impose such conditions and restrictions and may invest any of the powers which a Telegraph Page 48 of 75 HC-NIC Page 48 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT Authority would possess under the Indian Telegraph Act, 1885, it is worthwhile to understand the scope and ambit of the powers of the Telegraph Authority which is vested to a licencee for the purpose of laying down electricity transmission lines.
6.1 The requirement of Section 10(d) of the Telegraph Act is that the authority shall ensure that as far as possible little damage is caused. The other requirement is to pay full compensation to all the persons interested for damage sustained to their property because of laying down of lines and exercising power for the said purpose. Both these requirements are mandatory. Furthermore, if any change is possible in the line without disturbing, the said option should be explored. We may hasten to add that it would not mean that owner or occupier will have right of adjudication against the decision of a company because his objection is not accepted for alternative laying down of the lines, however an obligation is created by the statute upon the authority to do as little damage as possible and the task of laying down line should be undertaken with due expertise so as to see that principle of list damage is observed.
6.2 Another aspect is that the authority shall pay full compensation to all the interested persons for the damage done to their property while laying down line and because of laying down the line. It is an obligation created by the statute for payment of full compensation. There would be various methods of Page 49 of 75 HC-NIC Page 49 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT assessment of the compensation, but unless it is identified that what damage is sustained, it may not be possible to assess the compensation. Therefore, the words any damage is required to be interpreted to mean all type of damage. If the land is an agricultural land, the actual occupation of the area for construction of tower is one type of damage, whereas the right curtailed of the owner or occupier to utilize the land for agriculture is another type of damage. If there is exclusive occupation for construction of tower, the damage can be said to be to the fullest extent, since no rights whatsoever remains with the owner to enjoy the property, whereas if the use is permissible in part, there may be damage to that extent to the rights of the owner or occupier for enjoyment of the property. Further, if it is an agricultural land in the peripheral area or nearby area of city it will have the potentiality for non- agricultural use and even if the towers are not constructed, but only overhead line is installed, such may result into curtailment of the rights of the owner or occupier of the property to the fullest extent. In the same manner, if on account of the construction of the tower or laying down of the lines, including overhead lines, the actual construction or utilization of the line by making any type of construction is not permissible as per the laws of the local authority, such would also result into a damage to the rights of the owner or occupier. The same principles would apply with more vigor in a case where the line is already located in the urban area or the urban agglomeration Page 50 of 75 HC-NIC Page 50 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT or within the area of the local authority, municipality or corporation, as the case may be. 6.3 The valuation of property for the purpose of compensation is another important aspect. It may be difficult for the electricity company to take out the basis of the valuation of the property, over which the lines are to be laid down or the towers are to be constructed, since the development in the respective area may vary from case to case. For example, an agricultural land in the remote village will have a different value in comparison to agricultural land in the city area for the land already used for non- agricultural purpose like residential, industries, etc., or the use of residential or industry, as may be permissible, etc. It may be that at the time when the Telegraph Act was enacted, no standard or basic yardstick for valuation of the land or the property was available, but as on today and even when the Act of 2003 came into force, the valuation is already made by the State Government of all the areas for the purpose of stamp duty, which is popularly known as jantri valuation. It is possible that in every case Jantri Valuation may not reflect the correct market value of the land, but for the purpose of awarding of compensation at the first instance by the Electricity Company in capacity as the authority under the Telegraph Act can take the basis of the jantri valuation of the respective land. After considering the jantri valuation it may be examined as to whether there is full curtailment of the right of the owner or occupier or not. If the curtailment of the right of Page 51 of 75 HC-NIC Page 51 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT the owner or occupier is to the fullest extent, appropriate compensation based on jantri valuation can be fixed, whereas if the curtailment of the right of the owner or occupier over the land is lesser, a mode or mechanism may be required to be provided about the percentage of curtailment of right. The guiding factor can be by way of rental compensation for the deprivation of the property for a limited period. Further, if the deprivation is only in part, it can be considered percentage-wise namely; that if the use is permissible, may be by running with the risk of electricity in the nearby area, such may result into 30% curtailment of the right, whereas if the overhead line is passing through agricultural land located in the remote agricultural area, it may result into damage to 10% of the property, as against the same if line is passing over an agricultural land in an urban area located in the urban or nearby urban area, the potentiality can be said as lost to the extent of 50%. Of course, the aspect of the area covered by the overhead line with the measurement would be relevant while examining the actual damage to the owner or occupier. In our view, it may not be possible for this Court to lay down any standard yardstick for assessment of the damages and consequently the compensation, but it is obligatory on the part of the Electricity Company to take into consideration the aforesaid aspect and thereafter, to quantify the amount of compensation and to simultaneously pay to the owner or occupier of the land can be considered as that of the jantri valuation and the assessment of the Page 52 of 75 HC-NIC Page 52 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT damage may be made based on the curtailment of the right of the owner or occupier on account of the laying down of the line. The aforesaid could be said as the basic requirement for exercise of the power by the authority for laying down of the line as per the Section 10(d) of the Act. If the mandatory requirement of causing as little damage as possible or payment of full compensation is not followed, the action may be rendered illegal.
6.4 However, the Act does not end there, but it further provides the other remedial measure as per Section 16 of the Act. Therefore, we may be now required to examine the aspect of further exercise of power under Section 10(d). If Section 10(d) is read with Section 16(1), it is clear that the owner or occupier has a right to resist or obstruct. At the same time, it is in absence of any resistance or obstruction by the owner or occupier, the licensee as the Telegraph Authority may proceed to exercise the power of laying down of the line, but as observed earlier, even in absence of resistance or obstruction by the owner or occupier, the obligation will remain upon the licensee as the Telegraph Authority to do the least damage and to pay full compensation.
6.5 The next aspect is the sufficiency of compensation. As observed by us herein above, the payment of full compensation for the damage caused is a mandatory requirement The observations made by us herein above are some of the methods and measures for assessment of the damage and consequently the Page 53 of 75 HC-NIC Page 53 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT compensation. The licensee as Telegraph Authority can be said as required to consider the aforesaid aspect and thereafter to fix the amount of compensation and to pay simultaneously with the laying down of the line. However, if the owner or occupier finds that the compensation paid by the licensee as Telegraph Authority is not sufficient, the owner or occupier or may be in a given case, the licensee as the Telegraph Authority may make application to the District Judge and ultimately the District Judge has to finalize the aspect of sufficiency of compensation. When the matter comes up before the learned District Judge for the aspect of sufficiency of compensation, he would finalize on the basis of evidence led before him. As per the Scheme of Section 16, the District Judge has to finally decide the aspect of sufficiency of compensation. Since the power vests to judicial authority we do not find it proper to observe further, except that the matter shall be examined in accordance with law by the learned District Judge at that stage and the aspect of sufficiency of compensation shall be finalized. Such decision of the District Judge is binding to both the sides with the further proviso that the decision shall not adversely affect the right of any person to recover by suit the whole or any part of the compensation paid by the licensee as Telegraph Authority from the person, who has received the same.
Discussion
7. Having considered the relevant statutory provisions and the broad mechanism of its functioning, Page 54 of 75 HC-NIC Page 54 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT we may now further consider the contentions raised by the learned counsels appearing for the respective parties. However, before we proceed in this regard, we find it appropriate to record that when the decision of this Court in the case of Dilip Sing Chauhan & another Vs Gujarat Urja Vikas Nigam Limited [(2013) 34 Gujarat High Court Judgments (496)], during the course of the hearing was brought to the notice of this Court, the learned counsel appearing for the appellants and the petitioners contended that the aforesaid decision of this Court in the case of Dilip Sing Chauhan (supra) was carried before the Apex Court by Powergrid Corporation of India Ltd. in Special Leave to Appeal (Civil) No.30704/13 and vide order dated 27.09.2013, the Apex Court had stayed the order and therefore, it was contended that the observations made by this Court in the above referred decision may not be considered at all. When the learned Advocate for the appellants and the petitioners were instructed to show the latest status of the matter, they produced some orders of different dates, i.e., of 13.12.2013, 17.01.2014, 21.02.2014, 14.03.2014, 17.04.2014, 03.02.2015 and last 24.02.2015 of the Apex Court. It is true that there is no specific order of the Apex Court produced for express modification of the stay granted. However, the last order dated 24.02.2015 of the Apex Court reads as under:
"Learned ASG should tell us within three weeks the status of guidelines to be framed for grant of compensation as in the present case."Page 55 of 75
HC-NIC Page 55 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT 7.1 Again perusal of the decision of this Court in the case of Dilip Sing Chauhan (supra) shows that in paragraph 77, this Court directed the State Government through the Secretary, Department of Energy to consider the observations made by this Court in the present judgement to issue guidelines for the mode and manner of assessment of compensation and such guidelines were to be issued within three months from the date of the receipt of the judgment of this Court. If the last order is considered by the Apex Court dated 24.02.2015, one may say that the Apex Court called upon the State to report the status of the guidelines to be framed for grant of compensation. Naturally, the question of framing the guidelines would arise only when the judgment is to be acted upon and the acting as per the judgment would be after the stay is vacated. We leave at that since no complete details of the interim order passed and subsequent orders are fully produced at the time of conclusion of the hearing of the present group of matters. However, even if it is considered that the judgment is stayed, the observations made by this Court in the above referred judgment cannot operate as binding precedent. The fact would remain that the effect of the statutory provision viz., as that of the relevant provisions of the Electricity Act, Telegraph Act, relevant Rules under the Electricity Act would remain and the mode and manner of the interpretation of the aforesaid relevant provisions of the statute with the relevant Rules can be considered independent of the observations made in the above referred decision. We Page 56 of 75 HC-NIC Page 56 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT have again reconsidered the relevant statutory provisions referred to hereinabove and while undertaking the interpretative process and while reconciling the statutory provisions, viz., the Electricity Act read with the relevant Rules and Telegraph Act, we find that the position of law can be deduced as under.
7.2 Section 68 of the Electricity Act provides that the overhead lines with the prior approval of the Appropriate Government can be installed. Sub-section (2) of section 68 provides for a particular distance, which may not be relevant for the present matters. However, sub-section (3) provides that the Appropriate Government while granting approval under sub-section (1) may impose such conditions (including conditions as to the ownership and operation of the line) as it may appear necessary. Sub-section (4) enables the Appropriate Government to vary or revoke the approval granted earlier. Sub-section (5) provides that if any tree is standing or lying near the overhead line or any structure or any object has been placed or has fallen near the overhead lines, which creates interruption or interference with, the Executive Magistrate or any authority specified by the Appropriate Government upon the application of the licensee, may cause removal of such tree, structure or object, as the case may be. Sub-section (6) provides that when any action is to be taken by the Executive Magistrate, the appropriate compensation shall be awarded to the interested person in the tree. The aforesaid mechanism provided under section 68 of the Page 57 of 75 HC-NIC Page 57 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT Electricity Act is to be considered with section 164 of the Act, more particularly because there are no express Rules brought to our notice framed by the Government for exercise of the power by the licensee after approval is granted by the Appropriate Government.
7.3 Further section 68 of the Act did not expressly provide for any change to be made or alteration to be made in the overhead lines. At this stage, we may refer to the provisions of section 180(2)(c), which reads as under:
"180.Powers of State Governments to make rules-
(7) The State Government may, by notification, make rules for carrying out the provisions of this Act.
(8) In particular and without prejudice to the generality of foregoing power, such rules may provide for all or any of the following matters, namely :-
(a) x x x x
(b) x x x x
23. such other matters which may be
prescribed under clause (c) of sub-section (2) of section 68."
7.4 The aforesaid speaks for making of the Rules by the State Government in sub-section (2)(c) of section 68, which provides for the prescription under Page 58 of 75 HC-NIC Page 58 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT the Rules. At this stage, we may also refer to section 185 of the Act, the relevant of which is section 185(2) (b), which reads as under:
"Repeal and saving- (1) Save as otherwise provided in this Act, the Indian Electricity Act, 1910(9 of 1910), the Electricity (Supply) Act, 1948 (54 of 1948) and the Electricity Regulatory Commission Act, 1998 (14 of 1998) are hereby repealed.
(2) Notwithstanding such repeal-
(a) x x x x
(b) the provisions contained in sections 12 to 18 of the Indian Electricity Act, 1910(9 of 1910) and rules made thereunder shall have effect until the rules under sections 67 to 69 of this Act are made;"
7.5 We may also record that so far as provisions of section 67 of the Act is concerned qua the work of licensee for laying down of the electricity lines, the Rules are already framed by the Government known as the Works of Licensees Rules, 2006 in exercise of the power of clause (e) of sub-section (2) of section 176 read with sub-section (2) of section 67 of the Electricity Act and such rules have come into force from 18.04.2006. However, as such Rules are only for the works under section 67 of the Act, it may not apply for laying down of the transmission lines under section 68 of the Act. In absence thereof, one may have to consider the provisions of sections 12 to 18 of the Indian Electricity Act, 1910 (hereinafter referred to as the "Act of 1910"). Section 12 of the said Act of 1910 provides for opening and breaking up Page 59 of 75 HC-NIC Page 59 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT of streets, railways and tramways. Section 13 of the Act of 1910, provides for notice of new works. Sub- section (2) of section 13, reads as under:
"(2) Where the licensee makes default in complying with any of these provisions, he shall make full compensation for any loss or damage incurred by reason thereof, and, where any difference or dispute arises as to the amount of such compensation, the matter shall be determined by arbitration."
(Emphasis supplied) 7.6 The aforesaid provision shows that in case of default in complying with the terms of the licenses or the terms of approval, full compensation for any loss or damage incurred on account of the default in compliance should be paid to the affected party. At this stage, we may also refer to the provisions of sections 3 to section 5 of the Act of 1910. Section 3 provides for grant of licences upon the application in the prescribed form. In section 3, it has been provided that any person applying for licence shall publish a notice of his application in the prescribed manner with the prescribed detail which would include for an area to be covered thereby and by sub-clause
(b) of sub-section (2) of section 3, the objections are to be received by the Government and thereafter, the licence is to be granted. Section 4 provides for revocation or amendment of licences. Section 4-A also provides for amendment of licences. As per section 4- A, the licensee can apply to the State Government, proposing to the Government any alteration or amendment of his licence, but the procedure provided is the same as that of public notice and inviting of Page 60 of 75 HC-NIC Page 60 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT objections and consideration thereof by the State Government.
7.7 In view of the above, on the conjoint reading of section 68 of the Act read with the above referred provisions of Act of 1910, one can say that the area prescribed for passing of the transmission line for which the licence has been granted, is one of the important aspect since the notice is required to be published and the objections are to be invited and such objections are to be considered by the Appropriate Government.
7.8 Even if it was not expressly provided in the statute, when any licence is to be granted, for laying down of the lines under section 68 of the Act and such laying down of the transmission line is to pass through the area or the property of any person, inviting of objections and consideration thereof by the Appropriate Government would be of the vital importance since it it to result into curtailment of the right for enjoyment of the property by the owner thereof. However, as per the above referred section 13(2) of the Act of 1910, the default in complying with the condition would lead the licensee to make full compensation for any loss caused or damage incurred by such default in compliance of the provisions and in case of any dispute for such compensation, the same as per the Act of 1910 is to be determined by arbitration. Such could have been the procedure in absence of any Rule framed under section 68 of the Act.
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8. In the present case, the position is slightly different inasmuch as after the licence is granted under section 68 of the Act, further powers are not exercised for works under the Act of 1910, but are exercised under the authorisation so granted under section 164 of the Act. As section 164 of the Act is already referred to hereinabove, we need not repeat, but as per section 164 of the Act, once the power is so conferred under section 164, the provisions of the Telegraph Act would start operating beginning from section 10 to section 16. As per section 10 (d) of the Telegraph Act, the authority while exercising the power, has to do as little damage as possible and has to pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of such powers. As per section 16 (1) of the Telegraph Act, if there is any resistance in exercise of the power as contemplated under section 10 clause
(d), the District Magistrate may, in his discretion, permit the telegraph authority to exercise the power and such order shall be binding to the owner or the occupier. Hence, it can be said that when the authority is to exercise the power under section 10(d) of the Telegraph Act, the owner or the occupier has a right to resist. If the same is resisted, officer so conferred with the power has to apply to the District Magistrate for passing of the order under section 16(1) and when the District Magistrate has to exercise the power for passing of order, he has to exercise his discretion. At the time when the District Magistrate is to exercise the discretion for passing of the Page 62 of 75 HC-NIC Page 62 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT order, apart from hearing, the affected person which in any case is required for observance of the principles of natural justice, the District Magistrate has also to apply his mind as to whether there is any alteration in the route of transmission line as approved by the Appropriate Government in favour of the licensee or not. In a given case, if he finds that there is substantial alteration in the route of the transmission line, which may call for modification of the condition of the licence by the Appropriate Government, he may decline to pass the order, but if in a given case, he finds that the alteration in the route is minimal or minor, he may pass the order under section 16(1) of the Telegraph Act for permitting laying down of the transmission line. Once the order is passed under section 16(1) of the Telegraph Act, it would be binding to the person who had resisted in capacity as the owner or occupier otherwise such interference is to be treated as an offence as per section 16(2) read with section 188 of the Indian Penal Code. Further, as per section 16(3) of the Telegraph Act, if there is any dispute concerning to the sufficiency of the compensation as assessed by the officer so conferred with the power under section 10 clause (d) of the Telegraph Act, the owner or the occupier, as the case may be, or the officer of the transmission company, may make application to the District Judge within whose jurisdiction the property is situated for its determination and the District Judge as per sub-section (4) of section 16, will also have the power to determine the share inter se and the Page 63 of 75 HC-NIC Page 63 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT determination of the dispute by the District Judge will have finality as per section 16(5) of the Telegraph Act.
9. In view of the aforesaid relevant statutory provisions under the Telegraph Act already providing the mechanism for determination of the sufficiency of the compensation, we find that even in case of alteration of the route of transmission line, no useful purpose would be served in getting the adjudication of the dispute by arbitration since in any case, the District Judge is to finally rule on the sufficiency of the compensation. Further, had it been a case where the line was not laid down and the challenge to the alteration of the route was brought before the District Magistrate after resistance shown by the owner or occupier and had it been a case where the matter was brought before the Court by the owner or occupier, after having shown the resistance and after the order was passed by the District Magistrate under section 16(1) of the Telegraph Act, the matter might stand on different footing and different consideration. But in a case where there is no express resistance shown and the compensation is at one point of time already paid and/or accepted for by the owner or the occupier, as the case may be, and the line is already laid down and the Court is to exercise the power, the situation and the consideration may be different for the Court while exercising the power even under Article 226 of the Constitution with the judicial discretion inbuilt in the exercise of such power. In such cases, the Court may relegate the Page 64 of 75 HC-NIC Page 64 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT owner or the occupier of the property to approach before the District Judge as per section 16(3) of the Telegraph Act for adjudication for sufficiency of the compensation and thereafter, to get the payment of compensation and to realise the compensation accordingly.
10. In view of the above, following principles which may be concerning to the present group of petitions can be deduced as under:
(a) At the time when the transmission line is to be laid down, it is required for the person desirous to get the licence to apply for licence to the Appropriate Government. In case of inter-
state, if the transmission line is to pass through more than one State, Appropriate Government would be Central Government, but if the line is to pass within the State, the Appropriate Government would be the State Government.
(b) When the application is made to get a licence for laying down of transmission line, the route for transmission lines is to be provided at the time of applying for licence. The public notice is required to be published in the newspaper having circulation in the area describing the various parcels of the land through which the line is to pass and the map should also be made available to the objector for inspection if any person is so desirous.
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(c) The objections can be submitted by the owner or the occupier of the property over which the transmission line is to pass or laid down.
(d) Any objections filed is required to be considered by the Appropriate Government and after consideration of such objections, the Appropriate Government may decide to grant licence under section 68 of the Act or may decline to grant licence under section 68 of the Act. In case of grant of licence, it would be with the approved map providing for route of passing of transmission line. Such may include modification of the route if any found appropriate by the Appropriate Government on account of the objections filed by the owner or occupier or otherwise.
(e) Once the licence is granted and approval is granted to the route of the transmission line, it would be required for the licencee company to go by the route so approved of the transmission line. If any alteration is to be made in the route, the licensee company may be required to approach before the Appropriate Government for substantial modification in the route and again the same procedure for inviting objections, consideration of objections by the Appropriate Government and thereafter to get sanction for the change in the route of transmission line would be required.
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(f) In the event the licensee company or its officer if found proper, may be conferred with the power under section 164 of the Act as that of the telegraph authority for laying down of the transmission lines. In absence of any conferment of power under section 164 of the Act as no rules are framed for the procedure under section 68 of the Act, the licensee company may follow the procedure for works as provided under sections 12 to 19 of the Act of 1910. But in a case where there is conferment of power under section 164 of the Act, the procedure from section 10 to section 16 of the Telegraph Act will be required to be followed.
(g) When the authority exercises the power under section 10 of the Telegraph Act, it has to ensure that the laying down of the line is as per the approved route and little damage as possible is caused to the property of the owner or occupier and simultaneously, appropriate compensation is also tendered to the affected person. At that stage, the owner or the occupier of the property has also right to resist the entry and resist for laying down of the transmission line over his property and has a right to raise the dispute for sufficiency of the compensation.
(h) If the resistance is shown by the owner or occupier of the property to the entry or laying down of the line over the property, the officer Page 67 of 75 HC-NIC Page 67 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT of the licensee company would be required to proceed before the District Magistrate under section 16(1) of the Telegraph Act. At that stage the District Magistrate apart from giving opportunity of hearing to the person concerned, shall also be required to examine as to whether the line is laid down as per the approved route or not and if he finds that there is substantial change in the route of laying down of the line than the route approved by the Appropriate Government, he may decline to pass the order under section 16(1) of the Telegraph Act. But if he finds that the alteration is minor and not substantial, he may pass the order under section 16(1) of the Telegraph Act.
(i) If the owner or the occupier has raised the dispute concerning to sufficiency of the compensation paid or to be paid by Licensee Company under section 10 (d) of the Telegraph Act, either of the party can move application to the District Judge within whose jurisdiction the property is situated.
(j) The District Judge, before whom the application is made for determination of the dispute for sufficiency of the compensation, shall determine the amount of compensation payable and the decision of the District Judge would be final, of course subject to the right of any aggrieved party to approach before this Court under Article 226 of the Constitution.
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(k) But in a case where the alteration in the route of transmission line is already made and the resistance is not shown by the owner or occupier at the relevant point of time, may be on the ground of illiteracy or may be on the ground of lack of knowledge and the owner or the occupier in bonafide has accepted the compensation, then in that case, he will have still right to approach before the District Judge within whose jurisdiction the property is situated by raising the dispute for sufficiency of compensation. But the important aspect is that the compensation under the circumstances would include not only for the loss or damage caused to the property on account of the laying down of the transmission line, but also for alteration made by the transmission company in the approved route.
(l) The last principle observed by us is on account of the peculiar circumstances that the transmission line if already laid down and if already energized by the approval granted, and thereafter, if the removal or the alteration is effected of the transmission line, it may result into serious consequences of disruption of the electricity supply to a great extent since the line is already energized and therefore, the appropriate mode for default or unauthorized change in the route of transmission line would be to pay additional compensation for the so called Page 69 of 75 HC-NIC Page 69 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT breach instead of removal of the transmission line resulting into huge disruption of the power of electricity, consequently to adversely affect huge public interest.
11. After having considered the above referred broad principles in mind, we may now further proceed to consider the facts in the present case.
12. As such, if all the matters are considered in strict sense, following aspects may operate against the appellants or the petitioners, as the case may be, in invoking the jurisdiction of this Court under Article 226 of the Constitution.
(1) The petitioners are persons who have not shown any resistance at the time when the powers were exercised by the officers of the licensee company under section 10(d) of the Telegraph Act.
(2) They have accepted the compensation tendered to them.
(3) In number of matters, more particularly, Letters Patent Appeals, the aforesaid both the important aspects were not disclosed by the original petitioners.
(4) After passing of the reasonable time of laying down of the transmission line and/or acceptance of the compensation tendered, the grievances are raised by the present Page 70 of 75 HC-NIC Page 70 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT petitioners.
13. However, at the same time, we find that sufficient material has come on record showing the following aspects even on the part of the respondent licensee companies.
(1) The route of transmission line is altered to a substantial extent. Not only that, but the villages of the petitioners concerned were not even referred to in the public advertisement given prior to the grant of licence by the Appropriate Government for approval of the route for laying down of the transmission line. Resultantly, it can be said that no opportunity was made available to the petitioners. (2) No express prior intimation was given in writing to the owner or occupier before exercise of power under section 10(3) of the Telegraph Act. Of course, there are disputes raised on the said aspect by both the sides inasmuch as, as per the petitioners/appellants, the officers of the licensee company came with the police power whereas on behalf of the licensee company, it has been contended that no resistance was ever shown at the time when the lines were laid down or even when the compensation was tendered and accepted.
14. In view of the aforesaid peculiar circumstances, we find that it would be inappropriate to deny the petitioner invoking of the jurisdiction of this Court Page 71 of 75 HC-NIC Page 71 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT under Article 226 of the Constitution, but at the same time, we need to keep in mind that when this Court is to pass the order, the line is already laid down and energized and any order for removal of the line or alteration of the transmission line which is already laid down may result into disruption of the electricity power which is of the huge public importance since it is not a matter of supply of electricity for one or two individuals, but is a matter of transmission of huge power of electricity within the State and from one State to another which caters the need of large number of citizens and industrial undertakings, etc.
15. As observed by us hereinabove, in any case, it does appear that there is substantial alteration in the transmission line by the transmission company on account of which the damage is suffered by the appellants-petitioners in capacity as the owners or occupiers. Further, after the compensation was tendered, considering the facts and circumstances, the appellants-petitioners should be in any case at the liberty to raise the dispute for sufficiency of the compensation. Section 16(3) of the Telegraph Act does not expressly provide for any prescribed period of limitation for raising of such dispute. Under these circumstances, we find that when the route of transmission line is altered to a substantial extent by the transmission companies, the owner or occupier of the property who are petitioners herein shall also be entitled to additional compensation for alteration so made than the approved plan duly approved by the Page 72 of 75 HC-NIC Page 72 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT Appropriate Government.
16. We are not impressed by the submissions made by Mr.Oza, learned counsel appearing for the petitioners and the appellants that this Court should modulate the mechanism of adjudication of the dispute by former Judge of this Court, more particularly when statute itself, i.e., section 16(3) of the Telegraph Act provides the mechanism for determination of the aspects of sufficiency of compensation. At the same time, we cannot countenance the submission made by Mr. Yagnik, learned counsel appearing in LPA No.1254/13 that the line should be removed and compensation is not the solace. As observed by us hereinabove, on the strict principles of exercise of discretion while exercising the power under Article 226 of the Constitution, the appellants-petitioners have so many obstruction as observed earlier and with the further aspects that the relief is not prayed in the petition for removal of the transmission line over the property of the appellants of LPA No.1254/13, but they have rather prayed for the compensation. The relief prayed for acting in accordance with law has been rightly held by the learned Single Judge as too vague and general. Hence, we find that they would at the most be entitled to raise the dispute for sufficiency of the compensation before the District Judge.
17. In view of the aforesaid observations and discussions, we find that the following order shall meet with the ends of justice -
Page 73 of 75HC-NIC Page 73 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT (1) The appellants-orig. petitioners or the petitioners, as the case may be, shall be at the liberty to make appropriate application before the District Judge within whose jurisdiction the property is situated of the respective appellants-petitioners under section 16(3) of the Telegraph Act read with section 164 of the Electricity Act, 2003 within a period of six weeks from today.
(2) If such an application is made, the learned District Judge concerned shall determine the appropriate compensation in accordance with law after giving opportunity of leading the evidence to the parties concerned and after giving opportunity of hearing to both the sides. Such exercise shall be completed preferably within a period of six months from making of the application by the respective appellants-petitioners but after taking into consideration the observations made by this Court in the present judgment and also the appropriate evidence which may be available on record before him.
(3) The amount of compensation as may be finalised by the District Judge shall be paid by the transmission company to the concerned owners or occupiers, as the case may be, applicant/s before the District Judge, within a period of one month from the date of the order, which may be passed by the District Page 74 of 75 HC-NIC Page 74 of 75 Created On Thu Oct 29 01:42:25 IST 2015 C/LPA/1104/2013 CAV JUDGMENT Judge.
18. Considering the facts and circumstances, so far as Letters Patent Appeals are concerned, the order of the learned Single Judge is set aside. All appeals as well as Special Civil Applications are partly allowed to the aforesaid extent. Considering the facts and circumstances, we find it appropriate to award the cost of litigation in each of the Letters Patent Appeals and Special Civil Applications, as the case may be, of Rs.3,000/-, which shall be deposited by the respondent transmission company within a period of one month from today and upon the amount of cost so deposited, the concerned appellants-petitioners jointly or through their authorised advocates shall be at the liberty to withdraw the amount of costs from this Court.
(JAYANT PATEL, ACJ.) (N.V.ANJARIA, J.) bjoy Page 75 of 75 HC-NIC Page 75 of 75 Created On Thu Oct 29 01:42:25 IST 2015