Allahabad High Court
Power Grid Corp. Of India Ltd. vs The D.M., Bareilly And 2 Others on 5 September, 2018
Equivalent citations: AIRONLINE 2018 ALL 5540
Bench: Pankaj Mithal, Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
[RESERVED]
A F R
Case :- WRIT - C No. - 3679 of 2017
Petitioner :- Power Grid Corp. Of India Ltd.
Respondent :- The D.M., Bareilly And 2 Others
Counsel for Petitioner :- Pratik J. Nagar,Priyanka Midha
Counsel for Respondent :- C.S.C.,Manvendra Nath Singh,Udit Chandra,Vatsala,Vinod Kumar Singh
Hon'ble Pankaj Mithal,J.
Hon'ble Saral Srivastava,J.
The Power Grid Corporation of India Limited has preferred this petition so as to challenge the order dated 13th July 2016 passed by the District Magistrate, Bareilly and the order dated 3rd September 2016, again of the District Magistrate, Bareilly modifying/amending the earlier order.
The District Magistrate by the impugned order has directed for payment of compensation to the two farmers of District Bareilly of the trees that have been cut at the same rate at which compensation has been granted to the farmers of District Rampur. The subsequent order modifies and amends the earlier order and directs for the payment of compensation not only to the two farmers but to 32 others named therein.
Since both the orders have been challenged in this petition, we have permitted the additional 32 farmers also to be heard in the petition as any order quashing either of the two orders would affect their interest adversely.
We have heard Sri Arvind Verma, Senior counsel assisted by Sri Prateek J. Nagar and Ms. Tanisha J. Munir, learned counsel for the petitioner and Sri Udit Chandra for the two farmers respondent nos. 2 and 3 and Sri V.K. Singh for rest of the other farmers.
The petitioner for the purposes of laying 400 KV High Tension Electric Lines from Bareilly to Kashipur cut down several trees standing on the agricultural land of the farmers. The interested farmers were paid compensation but not at the uniform rate. The compensation paid to the farmers of district Rampur was at the higher rate than those of district Bareilly. Therefore, respondents no. 2 and 3 demanded parity in the payment of compensation. They filed writ petition no. 2694 of 2016 and the same was disposed of in limine vide order dated 30.5.2016 with the direction to the District Magistrate to take a final decision in the matter.
The aforesaid order of the High Court is reproduced herein below for the sake of ready reference and convenience:-
"Heard Sri Udit Chandra, learned counsel for the petitioners, Learned Senior Advocate, Sri J. Nagar assisted by Sri Pratik J.Nagar for the Power Grid Corporation of India as well as Sri Rizwan Ahmed who has put in appearance on behalf of Union of India (respondent no. 1).
It is contended before the Court that the final authority to determine the compensation in the matter of utilization of the land as well as of damages caused to the crops and standing trees, is the District Magistrate and he has not yet taken a final decision in the matter. It is submitted that the petition is premature and hence the petitioners may be granted liberty to approach the District Magistrate.
The petition is accordingly disposed of with liberty to them to approach the District Magistrate.
Sd/-
Hon. Mr. Justice Arun Tandon Hon. Mr. Justice Yashwant Varma"
In pursuance to the aforesaid order the representation made by respondents no. 2 and 3 was decided by the impugned order dated 13th July 2016 and it was directed that they are also entitled to compensation in parity with the rate at which it has been awarded to the farmers of district Rampur. Subsequently, on the agitation of the farmers, the other farmers were allowed the same benefits vide amending order dated 3.9.2016 passed by the District Magistrate.
In challenging the above orders, the only issue which has been raised on behalf of the petitioner is that the District Magistrate has no power or authority of law to enhance the compensation for the trees and that in case the farmers wanted any enhancement, their remedy was to approach the District Judge under Section 16 (3) of the Indian Telegraph Act, 1985 (hereinafter referred to as the "Telegraph Act").
Sri Udit Chandra and Sri V.K. Singh on behalf of the farmers submitted that the impugned orders have been passed on the directions of the High Court. The High Court had specifically directed the District Magistrate to consider the matter and pass an order with regard to enhancement/entitlement of compensation on parity with the farmers of district Rampur. This direction was issued upon hearing both parties and the petitioner never objected that the District Magistrate is not the competent authority for the purpose rather accepted the same. Secondly, under Sub-section 6 of Section 68 of the Electricity Act, 2003 (hereinafter referred to as the "Electricity Act") read with Works of Electrical Rules, 2006, the District Magistrate is the competent authority to determine the compensation admissible in such cases.
Section 164 of the Electricity Act authorizes the Appropriate Government to confer upon any public officer, licensee or any other person engaged in the business of supply of electricity under the said Act the powers which the Telegraph Authority possesses under the Telegraph Act for the purposes of placing of electric lines.
Section 164 of the Electricity Act reads as under:-
"164. Exercise of Power 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 thing fit to impose and to the provisions of the Indian Telegraph Act, 1885 (13 of 1885), any of the powers which the Telegraph Authority possess 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."
In exercise of the above powers the Appropriate Government who happens to be the Central Government vide notification dated 24.12.2003 had conferred the powers of the Telegraph Authority upon the petitioner Power Grid Corporation of India Limited who is deemed to be the licensee in accordance with Section 14 of the Electricity Act. Thus, the petitioner has been vested with the powers of Telegraph Authority specially with regard to laying down the electricity transmission lines.
Section 10 of the Telegraph Act vide clause (d) provides that the Telegraph Authority in carrying the work of laying transmission lines shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers.
The relevant portion of Section 10 (d) is quoted below:-
"10. Power for telegraph authority to place and maintain telegraph lines and posts:-
Provided that-
(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."
In view of the above provision, the Telegraph Authority is liable to pay compensation to all persons interested for the damage caused in executing the work under the Act. In other words, the Telegraph Authority is obliged to pay compensation for the trees that have been cut for the purposes of laying down the electric lines.
The amount of compensation payable is determined under Sub-section 2 of Section 18 of the Telegraph Act which provides that in case any tree is in existence before laying of the lines, the Magistrate shall award to the person interested such compensation as he thinks reasonable and that his award shall be final.
Section 18 (2) of the Telegraph Act is quoted below:-
"18. Removal of trees interrupting telegraphic communication:-
(1) .................
(2) When disposing of an application under Sub-section (1),the Magistrate shall, in the case of any tree in existence before the telegraph line was placed, award to the persons interested in the tree such compensation as he thinks reasonable, and the award shall be final."
Then comes to the provision of Sub-section 3 of Section 16 of the Act which reads as under:-
"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).....................
(2)......................
(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."
This provides that the matter of sufficiency of compensation or its enhancement shall on application be determined by the District Judge.
In short, the procedure is that the petitioner who is deemed licensee by virtue of Section 164 of the Electricity Act is treated to be a Telegraph Authority having all the powers as conferred by the Telegraph Act. Thus, it has the power to cut and remove the trees for the purposes of laying transmission lines and to pay full compensation to the persons interested in the trees as may be determined by the Magistrate subject to enhancement/reduction by the District Judge.
In contrast to the above, Section 68 of the Electricity Act provides for laying down overhead lines with the prior approval of the Appropriate Government and that where any tree standing or lying near the overhead line or that has fallen subsequent to placing of such line so as to interrupt or interfere with the transmission of Electricity, the Executive Engineer may cause the same to be removed or otherwise dealt with in the manner as he thinks fit and may award to the persons interested such compensation as may be considered reasonable.
The relevant provisions of Section 68 of the Electricity Act are reproduced herein below:-
"68 Overhead lines:-
(1)......................
(2)......................
(3).......................
(4).......................
(5) Where any tree standing or lying near any 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 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."
A simple reading of the above provisions of Section 68 of the Electricity Act would reveal that the compensation payable therein is in respect of a fallen tree or structure near the overhead line which was already in existence and not in connection with the felling of trees while laying down new Electricity Transmission Lines.
The sphere of operation of Section 68 of the Electricity Act is different than that of Section 10 (d) and Section 16 of the Telegraph Act contemplates payment of the compensation for the trees that may have fallen down on the existing electricity lines whereas Section 10 (d) and Section 18 (2) of the Telegraph Act and Section 68 of the Electricity Act provides for compensation for the felling of trees for laying down new electricity lines.
In view of the above the provisions of Section 68 of the Electricity Act does not strictly apply to the present case where the trees have been cut and removed while laying down the electric transmission lines.
In Power Grid Corporation of India Limited Vs. Century Textiles and Industries Limited and others (2017) 5 SCC 143 it has been laid down that by virtue of Section 164 of the Electricity Act the provision of Section 68 of the Electricity Act and Rule 3 of the Rules are not applicable,meaning thereby that the compensation for cutting and removing the trees for laying electricity transmission lines has to be determined and paid in accordance with Section 10 (d) read with 18 (2) and 16 (3) of the Telegraph Act and not according to Section 68 of the Electricity Act.
In the case at hand the farmers of district Bareilly have been handed over the cheques of a meager amount as compensation but without there being any order determining the same as per the provision of Section 18 (2) of the Act. At least no such order was referred to and produced before us.
The contention of learned counsel for the petitioner is that the forest department was taken into confidence and as per the procedure prescribed by it the compensation was worked out and the cheques for the compensation were issued to each of the persons interested. In such a situation no other separate order of determination of compensation was necessary. This is not acceptable for the simple reason that unless there is an order determining the compensation by any authority, the persons interested would not be in a position to know the reasons for working out the compensation to enable them to approach the District Judge for raising a grievance regarding insufficiency of the compensation or for its enhancement.
In the absence of any such order the persons interested are incapable of knowing the reason or the basis on which the compensation has been determined to enable them to seek enhancement. The determination of compensation by a Magistrate under Section 18(2) of the Telegraph Act is a precondition for seeking its enhancement. Thus, the question of seeking remedy under Sub-section 3 of Section 16 of the Telegraph Act does not arise in the present case.
There is no dispute to the fact that for laying down the same electricity transmission line which passes through District Rampur as well as Bareilly trees in each of the two districts were cut and removed and that the farmers of Rampur were paid compensation of the trees at higher rate as under:-
Ø0la0 ifjf/k ¼ls0eh0esa½& fu/kkZfjr ewY; ¼:i;k esa½ 0&20 21&40 41&60 60 ls vf/kd 1 LkkxkSu 350 4000 25000 50000 2 ;wdsfyfIVl 225 1500 2500 5500 3 vke@uhe 300 1800 6000 10000 4 lSey 75 950 5500 10000 5 'khle 500 5000 18000 32000 6 ikWiqyj 215 1200 2400 4400 However, the compensation at the above rate was not granted to the farmers of District Bareilly. Accordingly, there was agitation by the farmers of district Bareilly and two of them respondents no. 2 and 3 filed a writ petition wherein direction was given to them to approach the District Magistrate for the satisfaction of their grievance. It is in the light of the above direction and to resolve the issue peacefully maintaining the law & order situation that the District Magistrate convened a meeting of the officers and the farmers wherein Sri M.M. Joshi participated as a representative of the petitioner Power Grid Corporation of India Limited. In the said meeting it was decided that the farmers of Bareilly should also be paid compensation at the same rate at which the compensation was paid to the farmers of district Rampur. The said decision is unanimous and is signed by the representative of the petitioner as well. It is in view of such a decision arrived into by the parties that the District Magistrate passed the impugned orders.
The aforesaid order is virtually a consented order which can not be assailed by the petitioner.
The above orders of the District Magistrate are not actually orders of enhancement of compensation but orders removing the disparity in the matter of award of compensation to similarly situated persons.
The payment of different rate of compensation for the trees to the farmers of two districts would have certainly militated with the principle of equality. The petitioner could not have discriminated between the two sets of farmers of Rampur and Bareilly merely on the basis of place/region. Any such action if allowed to stand would have been arbitrary and discriminatory in nature which would have violated Article 14 and 16 of the Constitution of India. Thus, in the absence of any specific order of determination of the compensation of the trees of the two districts as contemplated vide Section 18 (2) of the Telegraph Act, the compensation paid to the farmers of one district would automatically be payable to the farmers of the other district as otherwise it would have amount to discrimination.
In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order passed by the District Magistrate is an order on the administrative side pursuant to the direction of the High Court and it is not an order of quasi judicial nature as contemplated under Section 18 (2) of the Telegraph Act. It is not an order determining the compensation of the trees rather an order permitting award of equivalent compensation to the two sets of the farmers of District Rampur and Bareilly. It can not therefore be treated as an order of enhancement of compensation as contemplated by Section 16 (3) of the Telegraph Act.
The payment of compensation of the trees at the same rate to the farmers of both the Districts cause no injustice or prejudice to the petitioner so the action on part of the District Magistrate to the above effect do not warrant exercise of discretionary jurisdiction by us.
We accordingly, hold that the writ petition is devoid of substance. However, we make it clear that the benefit of the impugned orders would only be available to the farmers who were before the District Magistrate or are mentioned in the orders itself.
The writ petition is dismissed with no orders as to costs.
Order Date :-5.9.2018 SKS