Gujarat High Court
Manojbhai vs Power on 30 March, 2010
Author: K.A.Puj
Bench: K.A.Puj
Gujarat High Court Case Information System
Print
SCA/2813/2010 1/ 37 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2813 of 2010
With
SPECIAL
CIVIL APPLICATION No. 2814 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To
be referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ? NO
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the civil judge ? NO
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MANOJBHAI
DASRATHBHAI PATEL & ANR
Versus
POWER
GRID CORPORATION OF INDIA LTD & ORS
======================================
Appearance :
MR
RA MISHRA for Petitioners
MR MIHIR JOSHI WITH SUNIL S JOSHI for
Respondent Nos. 1 & 2
RESPONDENT NO. 3 IS SERVED
MR NIKUNT
RAVAL, AGRP for Respondent
No.4
======================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 30/03/2010
ORAL
JUDGMENT
1 Since common issue is involved in both these petitions, both the petitions are being heard and disposed of together by this common judgment and order.
2 Special Civil Application No. 2813 of 2010 is filed by two petitioners. The petitioner No.1 is a national and citizen of India whereas the petitioner No.2 is a Trust registered under the Bombay Public Trust Act with the Charity Commissioner, Gujarat, for the object of imparting education and other similar activities. The petitioner No.1 is the owner and occupier of Block No. 1623 of moje Village Jetalpur, Taluka -Daskroi and District and Sub-District Ahmedabad, whereas land bearing Block No. 1596, is owned and occupied by the petitioner No.2 Trust of moje Village Jetalpur, Taluka Daskroi, District & Sub-District Ahmedabad, and both the lands of the petitioners are situated just opposite to each other across the Highway, called National Highway No.8.
3 The petitioner in Special Civil Application No. 2814 of 2010 is also a public trust, registered with the Charity Commissioner, Gujarat. The land bearing Block Nos. 1054, 1055, 1056, 1057, 1058, 1059, 1065, 1046, 1047, 1048, 1049, 1050, 1051, 1052, 1066 and 1067 of moje Village Jetalpur, Taluka Daskroi, District and Sub-District - Ahmedabad and the land in question bearing Block No. 1593, which is situated just adjoining, are owned and occupied by the said Trust. In the said land, the Trust is running Primary, Secondary and Higher Secondary Schools. Over and above the schools in the said premises, there are several colleges run and managed by the said Trust, namely, B.Ed., P.T.C., Government Hospital which is run and managed by the Trust situated in the said plots and one Degree Engineering College. Thus, it is an educational campus created by the Trust.
4 In both these petitions, the petitioners have prayed for quashing and setting aside the impugned decision of Respondent No.4 dated 22.02.2010 passed on the application made by Respondent No.1 Company, dated 21.12.2009 and thereby quashing and setting aside the impugned decision of laying High Tension Power Lines passing through the lands of the petitioners and thereby permanently restraining the respondent Nos. 1 and 2 from laying down said High Tension Power Lines by erecting Towers on the land belonged to the petitioners and further be pleased to direct the concerned respondents to lay the High Tension Power Lines by shifting the same to Karaba land of the Government, which is available and is situated nearby to the lands belonged to the petitioners.
5 This Court has issued Notice to the Respondents returnable on 10th of March, 2010 and it was directed that respondent shall not enter the land of the petitioners till the next date of hearing. The said interim relief was continued from time to time.
6 It is the case of the petitioners that the respondent Nos. 1 and 2 are the State within the meaning of Article 12 of the Constitution of India. The respondent No.3 is appointed as contractor to lay down the disputed High Tension Power Lines, passing through Jetalpur area, where the land owned and occupied by the petitioners are located, to erect electric towers. The Respondent No.4 is the State Authority, who permitted respondents to carry on the work of laying down High Tension Power Lines. It is also the case of the petitioners that somewhere in the month of July, 2009, Officers of respondent No.1 along with Surveyor and Engineers of respondent No.1 company , other officers and Lineman of respondent No.3 -one Daulatbhai Dabhi have personally visited the lands of the petitioners and appraised the petitioners regarding the project contemplated by the respondents to lay High Tension Power Lines passing through their lands and have collected soil sample of the land. They have informed that if the petitioners have any objection for laying of High Tension Power Lines passing through their lands by erecting Electric Towers, they may do so by writing proper application addressed to respondent No.2. The petitioners thereafter inquired into the office of Collector respondent No.4 and learnt that several other farmers have also raised their objections against laying of High Tension Power Lines from private property, whereas the original project was to erect 400 KV Tower Station at Lamba Tekra, which is popularly known as `Pirana Dahej-Jetalpur' and as per the original plan, said High Tension Power Lines was to be laid on Vijol - Lamba road parallel to the said road, so that no private land is affected. However, said plan appears to have been changed and now it appears that respondents have decided to lay High Tension Power Lines through private lands right from village Chausar leading towards village Jetalpur, which comprised of various private lands, including that of the petitioners.
7 It is also the the case of the petitioners that since somewhere in the month of July, 2009, Officers of the respondents visited at the lands of the petitioners, the petitioners made a representation dated 24.09.2009 addressed to respondent No.2, inter alia, pointing out in detail to lay High Tension Power Lines from alternative site and not from the private lands of the petitioners and other similarly situated persons, particularly, in view of the fact that, recently, said lands have been declared as `Commercial Zone' by Ahmedabad Urban Development Authority and finalization of Town Planning Scheme is under consideration of the Government which will be shortly finalized and, therefore, if such a huge power supply line is laid on the private lands of the petitioners and other such affected persons having commercial value, which would amount to depriving the petitioners without authority of law and without following any procedure known to law, particularly, when alternative site is available for laying High Tension Power Lines, which would strike the balance and would not affect any private property. It would also serve the purpose of respondents and they would not be put to any inconvenience in continuing with their project of laying High Tension Power Lines.
8 It is the case of the petitioners that the petitioners have made several representations to the respondent authorities, but no action was taken by them with regard to the petitioners grievance. The petitioners have earlier preferred a petition, being Special Civil Application No. 10916 of 2009 wherein this Court has passed a common order on 18.12.2009 issuing following directions:
The respondent company shall approach the respondent No.4 District Magistrate within a period of one week from today.
After such an application is moved, it will be open to the petitioners to raise contentions before the respondent No.4 District Magistrate, which will be considered in accordance with law.
If the application is moved by the respondent company within a period of one week, the respondent No.1 shall hear and decide the application within a period of eight weeks from the date of receipt of application after due consideration of the objections of the petitioners.
This court has not entered into the merits of the matter and, therefore, the respondent No.4 may not be influenced by the order of this Court.
It is also clarified that till the issue is decided by the respondent No.4, the field of the petitioners shall not be entered into by the respondent company.
9 Pursuant to the common Order passed by this Court on 18.12.2009, the respondent No.1 Company approached the respondent No.4 by application dated 21.12.2009, wherein it was prayed that, in the exercise of the powers under Section 16 of the Telegraph Act, 1885, the Power Grid may kindly be permitted to proceed ahead with the laying of transmission line from the lands of the objectors situated in village Jetalpur at the earliest. The petitioners filed their objections before the respondent No.4 on 22.02.2010, giving details and elaborate reasons and also legal grounds stating that the action of the respondent No.1 Company is totally illegal, arbitrary, violative of principle of natural justice and without any application of mind. The respondent No.4, while deciding and passing the impugned order on the application of the Respondent No.1 company, has not given proper opportunity of hearing to the petitioners as provided under Section 171 of the Electricity Act, 2003, under which no notice was issued to the petitioners. The objections as directed by this Court were filed by the petitioners and still no proper hearing was given by the respondent No.4 while passing the impugned order. It is also the grievance of the petitioners that the respondent No.4 has not given any reasons in his order and by cryptic order, rejected the objections raised by the petitioners.10
It is this order of respondent No.4 which is under challenge in the present petitions.
11 Mr. R.K. Mishra, learned Advocate, appearing for the petitioners, in both these petitions, has submitted that the respondent No. 4 has not called the petitioners personally to hear them by issuing Notice under Section 171 of the Electricity Act. The most important thing about damage which the electricity lines are causing to the effect of the petitioners, which are specifically stated in the report submitted by the petitioners before the Respondent No.4 along with their objections. The said report dated 08.04.2010 prepared by Dr. Neil is on the subject of `Evidence that Electromagnetic Fields from high voltage power lines and in buildings, are hazardous to human health, especially to young children'. He opined in the report that the power lines should not be passed through the lands where the schools are situated and human beings are residing and the damages which the power lines would be caused are so much irreparable that in long term the children and the human beings residing over the area will not be able to recover from the damages due to the power lines which are passing over them. Mr. Mishra has further submitted that the respondent No.4 without considering the objections, without giving an opportunity of hearing to the petitioners, even without issuing Notice to the petitioners for hearing them, without application of mind and against the principle of natural justice, vide impugned Order dated 22.02.2010, decided the application of the respondent No.1 to the detriment of the petitioners, once again rising cause of action to approach this Hon'ble Court by way of the present petition.
11.1 Mr. Mishra further invited attention of this Court to Rule- 3 of the Works of Licensees Rules, 2006. The bare reading of Rule-3 of the Works of Licensees Rule, 2006, makes it clear that, prior to laying of a High Tension Power grid Line, the consent of the owner and occupier of the building/land is a condition precedent. The respondents have not obtained any consent of the petitioners.
Right from the beginning, the petitioners have objected to laying of such line for various reasons stated in the objections raised by the petitioners before the District Magistrate. Once, consent is not given by an occupier of the building/land, it is incumbent upon the concerned respondent to obtain permission in writing from the District Magistrate or the Commissioner of Police or any other Officer authorized by the State Government in this behalf. He has further submitted that even at the time of issuance of Notification in the Gazette, prescribing the procedure for laying such High Tension Power Grid Line, at various places including for present project, wherein one of the conditions specifically provides that the above authorization is subject to compliance by the Power Grid to the requirement of the provisions of Electricity Act, 2003 and the Rules made thereunder. He has further submitted that the respondents should either the lay out plan by making suitable changes so as to avoid the possible damage apprehended by the petitioners or to give full compensation prior to laying of lines because the land in question is a commercial zone declared by AUDA in 2002 and without following the procedure as contemplated under the Rules, the respondent No.1 cannot continue with the work contemplated by them.
11.2 Mr. Mishra further submitted that the project in question is a very huge project as contemplated and for the said purpose huge poles are required to be erected by providing considerable huge foundation of RCC structure on the land belonging to the petitioners. As a matter of fact, when this fact came to be known to the present petitioners and other people, the panchayat, on behalf of the village people, approached the respondent No.1 authority to suitably modify the route for lying such a High Tension Line as contemplated by the respondent No.1 and even suggested alternative route where a Government kharaba land facing parallel to the contemplated site of respondent No.1 to lay High Tension Line right from village Chausar till village Jetalpur, and if such a High Tension Line is laid on Government Kharaba land, it would not affect any of the private land of petitioners and other farmers of village Jetalpur. However, the respondent No.1 remained adamant without any justification and, hence, the petitioners constrained to approach this Court for appropriate relief.
11.3 Mr. Mishra further submitted that merely because the respondent No.1 is a high profile Government Company, cannot claim as a matter of right as if they are possessing the licence to carry out the work by laying High Tension Power grid Line through the private property of the petitioners. Mr. Mishra in support of his submission has relied upon a decision of the Kerala High Court in the case of VALSAMMA THOMA vs. ADDITIONAL DISTRICT MAGISTRATE, as reported in AIR 1998 (Ker.) 124, wherein it is observed that the District Magistrate has to exercise its discretion judiciously. He has to pass the order under Section 16(1) of the Telegraph Act, after hearing the parties after taking such evidence as is required with regard to the objections raised. The order passed by the court should be a speaking order. The order should reflect the objections raised by the parties and the reasons given by the Magistrate for accepting or rejecting the same. The order should also reflect the materials relied on by the District Magistrate for arriving at the conclusion. If the discretion is exercised by the District Magistrate as above, then unless it is shown that the findings are perverse or that the proceedings are vitiated by mala fides, this Court will not be justified in interfering with such orders. This Court will not be justified in substituting its own opinion. It is also worth bearing in mind that this Court has not got technical expertise and will be slow to interfere with such matters.
11.4 Mr. Mishra submitted that the above procedures laid down by the Kerala High Court have not been followed by the respondent No.4. The impugned order was not served upon the petitioners in time with a view to see that the same cannot be challenged by the petitioners. The respondent No.4 was expected to consider the objections raised by the petitioners with respect to exploring the possibility of alternative site to lay High Tension Power Lines or to fix compensation in respect of the land considering the site situation. However, the respondent No.4 has concluded the whole issue by stating that since the work in question involves public interest and national interest and private interest should suffer and sacrifice. Such a ruthless and insensitive approach adopted by the respondent No.4 is absolutely arbitrary, illegal and violative of principles of natural justice.
11.5 Mr. Mishra, therefore, submitted that the impugned order passed by the respondent No.4 cannot be sustained on any grounds and deserves to be quashed and set aside.
12 Mr. Mihir Joshi, learned Senior Counsel, appearing with Mr. Sunil S. Joshi for the respondent Nos. 1 and 2 and Mr. Nikunt Raval, learned Assistant Government Pleader for the respondent No.4 were heard 13 Mr. Mihir Joshi has submitted that the respondent No.1 i.e. M/s Power Gird Corporation of India Limited is a Government Company, registered under the provisions of the Companies Act, 1956 and a licensee engaged in the business of Inter-State transmission of electricity under the Electricity Act, 2003. The Respondent No.1 is a premium Central Government Organization, mainly engaged in establishment and operation of Regional and National Power Girds, to facilitate transfer of power within and across the regions. The respondent No.1 was specified as Central Transmission Utility of this country under the Electricity Act, 1910 and it is again notified as such after coming into force of Electricity Act, 2003. The respondent has established a sub-station at Dehgam, inter alia, with a view to evacuate the power generated by Gandhar Gas Power Project-II of the National Thermal Power Corporation of India Limited in order to develop an integrated and efficient power transmission system network in the country.
13.1 Mr. Joshi further submitted that Ahmedabad is a major load centre in the northern part of Gujarat. To meet the growing power requirement of this area, a scheme i.e. Western Region System Strengthening Scheme-VI, which, inter alia, included development of a new 400/220 KV Sub-station with 630 MVA capacity at Pirana near Ahmedabad, was proposed and discussed in the 25th meeting of the Standing Committee on Power System Planning in Western Region, held on 30th of September, 2006 at CEA, New Delhi. In order to facilitate power supply (injection) at Pirana KV, direct interconnection between Pirana and Dehgam (existing) Grid Sub-station through a double circuit line was agreed in the said meeting. Further, to improve reliability in supply, the Pirana Sub-station would be required to be connected with Sugen (1148 MW) generation project of M/s Torrent Power Generation Limited through a 400 KV D/C line. In this way, Pirana would be directly connected with the Grid at one side and generation project at another side, to ensure reliability of supply. In addition, establishment of Pirana Sub-station would facilitate the long term requirement in this area.
13.2 Mr. Joshi further submitted that the Board of Directors of Power Grid, in exercise of powers delegated to it by the Government of India through its O.M. No. 11/36/97-FIN dated October 09, 1997 (modified subsequently through O.M. No. 18(24)/2003-GM-GL.65 dated August 5, 2005 from Department of Public Enterprises, Ministry of Heavy Industries and Public Enterprises), have accorded approval for Western Region System Strengthening Scheme-VI, in its 205th meeting held on January 30, 2008. The said project involves the establishment of transmission line i.e. Dehgam-Pirana 400 KV, 2 x 315 MVA Sub-station at Pirana. The estimated costs of the said project is Rs. 340.72 crores and the same is scheduled to be commissioned within 33 months from the date of investment approval.
13.3 Mr. Joshi further submitted that the Government of India, Ministry of Power, has granted prior approval to the respondent No.1 under Section 68 of the Electricity Act, 2003, for the installation of overhead lines under Western Region System Strengthening Scheme-VI by an order dated 08th of February, 2007, and the said approval is granted subject to the following conditions:
The implementing agency will commence construction of the project within 3 years, unless this term is extended by the Ministry of Power.
Ministry of Power may withdraw the approval before the expiry of the period of 03 years after giving a one-month notice.
13.4 Mr. Joshi further submitted that the petitioner relied upon Rule-3 of the Works of Licensees Rule, 2006 in contending that since the petitioner is objecting to the erection of tower in and/or laying overhead line across their lands, the respondent No.4 is required to hear the petitioner on their objections and thereafter consider the same and it is only, thereafter, that the respondent No.1 can proceed ahead with its work from the land of the petitioners. It is submitted that the said contention of the petitioners deserves to be rejected.
13.5 Mr. Joshi submitted that under the provisions of Section 68 read with Section 164 of the Electricity Act, 2003, the Ministry of Power, Government of India, by an Order dated 24th of December, 2003, published in the Gazette of India, authorized the respondent No.1 to exercise all the powers vested in the Telegraph Authority under Part-III of the Indian Telegraph Act, 1885.
In view of the said provisions, no prior permission/consent of the owner, as contended under the aforesaid Rules, is required to be obtained by the respondent No.1 and no permission of the District Magistrate is also required, as contended under the aforesaid Rules, in view of the conferment of power of the Telegraph Authority upon the respondent No.1 as stated above and, therefore, no cause of action has arisen in favour of the present petitioners and the petitioners have no enforceable right to insist for the prayer made in the petitions and, therefore, the petitions deserve to be dismissed in limine.
13.6 Mr. Joshi further submitted that before transmission line is laid, the respondent No.1 undertakes survey of route in three stages according to the Manual of Transmission Line prepared by the POWERGRID. The said survey is done in three stages, namely, Reconnaissance (including walkover) Survey, Preliminary Survey and Detailed Survey. In the process of reconnaissance survey, a bee line is drawn between the two sub-stations. The bee line which is a straight line joining the two terminal points, is marked and a belt of width 10 kms (20 cms or the map), on either side of the centre line, is shown. In the master mosaic, the bee-line, which is the straight line joining two terminal points, should be neatly marked with pencil. The bee-line represents the shortest length, although, for various reasons, it may not be feasible to construct the line along the bee-line. Keeping the bee-line constantly in mind, alternative routes, with minimum unavoidable deviations from the bee-line, are marked carefully. In doing so, the following guidelines are kept in mind.
i) Allowing minimum number of crossings of major rivers, railway lines, national/state highways, overhead EHV power and telecommunication lines.
ii) Avoiding certain natural features like high mountainous terrain, steep slopes with cliff and huge boulders, large lakes and marshy places, etc.
iii) Avoiding populated areas, narrow gaps between two villages, large cash crop plantations and places of worship, etc.
iv) Avoiding close vicinity of aerodromes, radio stations, radar centers, rifle ranges, etc and also industrial installations where pollution, due to chemical effluents emanating therefrom, will affect the operation and maintenance of the power line.
v) In view of the statutory requirements of the Forest (Conservation) Act, 1980, avoiding, as far as possible, the reserved and protected forests and wild life sanctuaries. Where unavoidable, align the route so that the cutting of trees is kept to be the minimum.
vi) Keeping sufficiently away from continuous parallelism which Telecommunication and Railway Telephone lines. If there is continuous parallelism with existing HV or EHV line, it is preferable to maintain a minimum separation of 300 meters.
13.7 It is further submitted by Mr. Joshi that in the course of Walkover Survey, after making the various feasible routes on the map, a comparative study should be made on the basis of the following data.
Route length Number and type of angle points in each proposal indicating the sharpness of each deviation as measured on the map.
Nature and number of major crossings.
Deviation in the line due to civil or military aerodromes and other industrial installations.
Approach to the line for construction.
Reaches through protected or reserved forests.
Long stretches in cultivated fields. Close
parallelism with telecommunication and railway telephone circuits. With these details in hand, a walkover survey has to be carried out on all the alternative routes to arrive at the most economical route and to update the topographical maps available with the latest features observed during the survey.
13.8 Mr. Joshi further submitted that in the course of walkover survey, one is required to go over the area associated with the alternative routes proposed and collecting features observed other than those existing on the map. In addition, the indication on the following features would also be required to be checked without fail.
i) Communication lines
ii) Power Lines
iii) Expanding villages and towns.
iv) Rich gardens and plantations, etc
v) Aerodromes, radar centre, rifle ranges.
vi) Undulating reaches unfit for erection and maintenance.
Vii) Roads constructed and roads improved recently. Viii) Steep sloping terrain or steep slopes of hills. ix) Large tanks, lakes, water logged areas, etc. x) Reserved Forests and wooded areas with high trees. xi) High hillocks and stretches with large boulders. Xii) Irrigation
wells likely to be made, tube well, pump houses.
Xiii) Forests where menace of wild elephants persist
xiv) Private property limits where right of way cannot be obtained.
xv) Availability of saddles in still section for better crossing of valleys.
Xvi) Ghat Roads in hills xvii) Gardens with grafted fruit trees.
Xviii) Prohibited area declared under statutory regulations.
Xiv) Rocky areas.
13.9 Mr. Joshi, further submitted that on completion of the Walkover Survey, the proposal of the most suited route is further studied and approval is obtained from the head of Department of Transmission before taking up preliminary survey.
13.10 Mr Joshi further submitted that thereafter preliminary survey is done and the object of the said survey is to transfer the route selected on the map on to the ground with such deviation as may be necessary due to sealed constraints. And in carrying out the same, technical aspects are mainly taken into consideration. It is further submitted that the work of the Route Alignment of the said transmission line as well as the construction thereof is awarded to the respondent No.3 and it has, inter alia, after taking into consideration all the aspects as aforesaid, submitted a report to the respondent No.1 who has approved the Route No.I as the most convenient route. Mr. Joshi has further submitted that while fixing the transmission like route, only the most techno-economically feasible route is chosen causing least damage after complying with the statutory clearances and avoiding places of inhabitation, worship and densely populated areas. Since the transmission line requires a clear corridor of 48 meters only i.e. 24 meters on either side from the centre of the transmission line, all crops can be cultivated and the fruit bearing trees of short height can be grown and building put up by maintaining sufficient safety electric clearance as per the Electricity Rules, 1956. It is further submitted that the transmission line would not have any impact on human beings, animals, plants etc or on the geological or ecological system beyond the statutory clearance/norms provided by the Indian Electricity Rules, 1956.
13.11 Mr. Joshi further submitted that the Government of India, Ministry of Power, has accorded prior approval under Section 68(1) of the said Act to the respondent No.1 by an order dated 07.12.2006 for the proposed scheme i.e. Western Region System Strengthening Scheme IV with the scope of work, inter alia, including the construction of Dehgam-Pirana 400 KV D/C line comprising 139 Towers with a length of about 47 kms at a total cost of Rs. 340.72 crores. The scheme is duly approved by Government of India to provide quality power at the large with greater reliability particularly to the agricultural/ residential/commercial establishments in the State of Gujarat in general and the areas in and around the city of Ahmedabad in particular and will be a big boost to the industrial and agricultural growth in the State and it is executing the project after observing all legal procedures and as per the existing provisions under the Electricity Act, Sections 10 to 19 of the Indian Telegraph Act, 1885, Indian Electricity Rules, 1956 and the Work of Licensees Rules, 2006.
13.12 Mr. Joshi further submitted that Dehgam to Pirana 400 KV D/C Power Transmission Line has 139 Towers in the entire section, against which foundation work has been completed upto village Chousar and 70% Towers have been erected and the erection of balance Towers is in progress and the project is to be completed and commissioned by January, 2010 as per Schedule, but because of litigation, the same was delayed. It is therefore submitted that in view of the above, 80% of total work of foundation has been completed.
13.13 Mr. Joshi further submitted that laying of High Tension Power Line would not deprive the petitioners from making use of the land for which they propose to use in future and the petitioners have completely failed in making good their case as to how the petitioners would not be able to make use of their lands. He further submitted that the interpretation of Rule-3 of the Works of Licensees Rules, 2006 put forward by the petitioners is not correct especially in view of the conferment of the powers of the telegraph authority under Part-III of the Telegraph Act, 1885, the question of taking permission from the owner of the land and approaching the District Magistrate under the said Rules for the approval does not arise.
13.14 Mr. Joshi further submitted that there is no substance in the allegation that the laying of transmission line from the lands of the petitioners will deprive the petitioners from utilizing the plots in question in any manner whatsoever. It is further submitted that there is no substance in the allegation that original power supply line was to start from village Gamdi to reach Lambha Tekra. He has also submitted that there is no substance in the submission that if the said power station is constructed on Sardar Patel Ring Road and if said power supply line is laid, then less private lands would be affected. It is further denied that certain influential people whose lands are situated on the Sardar Patel Ring Road, by using their influence, have compelled the respondents to change the entire power supply line in such a manner that the respondents are prepared to spend huge amount to lay power supply line in such a way to reach Lambha Tekra in a circular route. Mr. Joshi further submitted that it is not possible to lay 400 KV High Voltage Transmission Line parallel to the highway as a clear corridor of 48 meters i.e. 24 meters on either side from the centre of the transmission line, is required to be maintained which is generally not available parallel to the highway and even if the same is available, the same would take away the frontage of all the lands over which the transmission line is proposed to pass. It is further submitted that alongside the highway, the LT lines of the GEB etc and telecommunication lines are passing and according to the manual of transmission line, the respondent No.1 is required to keep the line sufficiently away from the continuous parallelism with the Telecommunication and other LT lines. He has further submitted that the route which the petitioners are suggesting leads towards more urbanized and populated areas which, on the contrary, is required to be avoided by the respondent No.1.
13.15 Mr. Joshi further submitted that the route suggested by the petitioners i.e. parallel to Government waste land (Nelia) is not at all feasible for the transmission line of 400 KV. No such government waste lands are available continuously starching over the length of the said transmission line. It is further submitted that laying of the 400 KV High Voltage Transmission Line is highly technical subject and the route alignment is done following certain highly technical norms as described above and the same is done after the extensive survey. He therefore submitted that any deviation from the same cannot be done at the desire of the persons as the same is not convenient to them.
13.16 Mr. Joshi further submitted that the action of the respondent Nos. 1 and 2 would not amount to depriving the petitioners of their property and the same may not amount to breach of Article 300-A of the Constitution of India. It is submitted that the said Transmission Line would not cover the entire lands of the petitioners so as to make them entirely unusable. It is only on some part of their lands, towers would be erected by the respondent No.1 for which the petitioners would be entitled to the compensation in the case of their proving loss to them under Section 10 of the Telegraph Act, 1885. In the laying of the transmission line, the respondent No.1 does not acquire lands through which the same is to pass but only get the right to make use of the same for the purpose of laying the electric line for which full compensation is given for the damage caused.
13.16 Mr. Joshi further submitted that there is no substance in the allegation of the petitioners that no proper hearing was given to the petitioners and the respondent No.4 has not given any reasons in the impugned order. He submitted that a bare perusal of the order passed by the respondent No.4 clearly shows that the respondent No.4 has given reasons to pass such an order and opportunity of hearing was also afforded to the petitioners and, therefore, looking to the observations made therein, no interference is required to be made in the impugned order. He has further submitted that the report of Dr. Neil Cherry on the effect of the Electromagnetic Fields does not appear to have any statutory recognition and as provided in the relevant Rules, in laying overhead lines, the respondent No.1 is required to maintain sufficient clearance from the ground level so as to avoid any damage to the property and person and, therefore, the contentions raised by the petitioners are devoid of any merits.
13.17 Mr. Joshi further submitted that the petitioners have no prima facie case in their favour. It is not technically feasible to divert the line as suggested by the petitioners as alignment of transmission line is done after detailed survey as per the topography of land with a view to cause least disturbance to the existing villages. Moreover, in a 47 Kms transmission line, there has to be some diversion for the route alignment and if such prayer of the petitioners is accepted, then it would create a bad precedence and others may also ask for the diversion of line. It is therefore submitted that the respondents cannot be directed to erect transmission line in a zigzag manner. It is further submitted that 80% of the foundation and nearly 70% of erection of towers is completed and the projects involves the estimated costs of Rs. 340.72 crores. He has further submitted that well before the filing of the present petitions, the respondents had already completed the work of foundation upto village Chausar, which is at the distance of nearly 22 kms from village Kanbha. Therefore, it is submitted that the interests of individuals are to give way to larger interest.
13.18 In support of the submissions, Mr. Joshi has relied on the decision of this Court in the case of JIVIBEN MOTIBHAI PATEL vs. EXECUTIVE ENGINEER (C & M), GUJARAT ELECTRICITY BAORD, BARODA AND ANR, as reported in 37(1) GLR 470, wherein it is held that looking to the provisions of Section 42, the entire mechanism and the Scheme of Section 42 is that where the sanctioned scheme gives powers, the Board or generating Company shall exercise such powers. When the sanctioned Scheme does not confer such power, the Board or the generating company has no option but to take recourse to the provisions of Section 12 to 19 of the Electricity Act. No doubt, in each case, however, the Board shall be bound by the express provisions of Section 17 of the Electricity Act. In view of Section 42 with Part III of the Indian Telegraph Act, the generating company has also such powers to fix poles, wires, etc in the agricultural land of a private person and that person cannot object either on the principles of natural justice or on the ground of unauthorized user. All he is entitled to is compensation provided for under the proviso (d) to Section 10 of the Telegraph Act. It is further observed that Section 51 makes a clear provision empowering the State Government by an order in writing to confer such powers of fixing of electric supply line, appliances and apparatus for the transmission of energy or for the purpose of telephonic or telegraphic communications necessary for proper coordination of works, upon a public office, Board or licensee or any other person engaged in the business of supplying energy to the public under Section 28 of the Electricity Act, as are vested in the Telegraph Authority under the Indian Telegraph Act. Therefore, there is no doubt in holding that the provisions of Section 51 override provisions of Sections 12 to 16 and 18 and 19 of the Electricity Act. Those powers given to the State Government under Section 51 are undoubtedly wide and capable of affecting powers sometimes prejudicially. The Court, therefore, held that the State Government is empowered to give powers to the Board or licensee for placing of electric supply lines, wires and apparatus for transmission and distribution of energy.
13.19 Mr. Joshi further relied on a decision of this Court in the case of JAYANTIKUMAR BHAGUBHAI PATEL & ANR vs. STATE OF GUJARAT & ANR., as reported in AIR 2007 Guj 32, wherein after referring to various decisions cited before the Court, it was held that the petitioners have filed the said petition with an oblique motive and for extraneous considerations. The Court further held that there is no substance in any of the petitions and the same are accordingly dismissed.
13.20 Mr. Joshi further relied on a decision of the High Court of Andhra Pradesh, in the case of G.V.S. RAMAKRISHNA & ORS. vs. A.P. TRANSCO, REP. BY ITS MANAGING DIRECTOR AND ORS., as reported in AIR 2009 AP 158, wherein it is held that neither acquisition nor consent required of owner for placing electric supply lines or electric poles for transmission of electricity on or over private lands.
13.21 Mr. Joshi further relied on the decision of the Jharkhand High Court in the case of AJAY MUNJAL MEMORIAL TRUST & ORS. vs. POWER GRID CORPORATION OF INDIA & ORS., as reported in AIR 2008, Jharkhand 34. The view taken by the Jharkhand High Court in the aforesaid matter is also the same view as was taken by the Gujarat and Andhra Pradesh High Courts.
14 Based on the aforesaid factual background and the decisions of this Court as well as other courts, Mr. Joshi has strongly urged that there is no substance or merit in the petition and hence both the petitions be summarily dismissed.
15 Having heard the learned counsels appearing for the parties and having considered their rival submissions in light of the provisions contained in Electricity Act, 2003 as well as Indian Telegraphs Act and Rules framed thereunder and having gone through the order passed by the District Magistrate, Ahmedabad, on 28.02.2010 on the application made by the respondent No.1 Company on 21.12.2009, the Court is of the view that the District Magistrate has rightly taken the decision of allowing the Respondent Nos.1 and 2 to lay High Tension Power Lines by erecting Towers on the land belonged to the petitioners and of directing the petitioners to co-operate the Respondent Nos. 1 and 2 in the said project. There is no dispute about the fact that a Scheme known as Western Region System Strengthening Scheme-VI was proposed on 30.09.2006. The Government of India has granted prior approval to the Respondent No.1 under Section 68 of the Electricity Act, 2003, for the installation of overhead lines under this Scheme by an Order dated 08.02.2007. It has also come on record that the Ministry of Power, Government of India, in exercise of power conferred under Section 164 of the Electricity Act, 2003, passed an Order on 24.12.2003 duly published in the Extraordinary Gazette, authorizing the respondent No.1 to exercise all the powers vested in the Telegraph Authority under Part-III of the Indian Telegraph Act, 1885.
16 On an analysis of Section 67 and Section 164 of the Electricity Act, 2003, it is very obvious that whenever an order is passed by the appropriate Government in exercise of the powers under Section 164 of the Electricity Act, 2003 for placing of electric lines for the transmission of electricity, conferring upon any Public Officer, licensee or any other person engaged in the business of supplying electricity any of the powers which the telegraph authority possesses under the Indian Telegraph Act, 1885 with respect to the placing of telegraphic lines and posts for the purposes of a telegraph established by the Government, such public officer, licensee or any other person engaged in the business of supplying electricity stands in the same position as regards the exercise of power as the telegraph authority under the Indian Telegraph Act, 1885. It is, however, true that in absence of such an order under Section 164 of the Electricity Act, 2003, if a licensee i.e. a person who has been granted a licence to transmit electricity or to distribute electricity under the Act, proposes to place electric lines, electric poles or other works necessary for transmission or supply of electricity, Section 67 of the Electricity Act, 2003 comes into operation and consequently it is mandatory to obtain the consent of the concerned owner or occupier. In the present case, Section 164 of the Electricity Act, 2003 has admittedly been invoked and in exercise of the powers conferred thereunder, the Government of India conferred on the Respondent No.1 the powers which the telegraph authority possesses under the Indian Telegraph Act, 1885. Consequently, the Respondent No.1, for the purpose of laying High Tension Power Lines through the lands of the petitioners, is competent to exercise all the powers possessed by the telegraphic authority under the Indian Telegraph Act, 1885.
17 Section 10 of he Indian Telegraph Act, 1885 empowers the telegraph authorities to place and maintain the telegraph lines under, over, along or across and posts in or upon any immovable property. However, the said power shall not be exercised in respect of any property vested in or under the control or management of any local authority without the permission of that authority. The proviso (d) to Section 10 of the Indian Telegraph Act, 1885 further makes it clear that while exercising powers conferred under Section-10, the telegraph authority shall do as little damage as possible and when it has exercised those powers in respect of any property other than the property under the control or management of the local authority, shall pay full compensation to all the persons interested for any damage sustained by them by reason of exercise of the said powers. It is also important to take note of proviso (b) to Section 10 of the Indian Telegraph Act, 1885, under which, 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 lines or posts. Thus, it is apparent that the powers under Section 10 of the Indian Telegraph Act, 1885 can be exercised without acquiring the land in question and the only right that can be exercised is the right of user in the property and for the purposes mentioned in that Section.
18 The above discussion makes it abundantly clear that Section 164 of the Electricity Act, 2003 read with Section 10 of the Indian Telegraph Act, 1885 recognized the absolute power of the Respondent No.1 to proceed with laying High Tension Electric Lines or electric posts for the transmission of electricity on or over the lands belonged to the petitioners subject to the right of the petitioners to claim compensation if any damage is sustained by them by reason of laying such High Tension Electric Lines, in other words, neither the acquisition of the lands is necessary nor there is any need for consent of the petitioners.
19 The court has also considered the submission of Mr. Joshi that before transmission line is laid, the Respondent No.1 undertook survey of route in three stages, namely, Reconnaissance (including walkover) survey, Preliminary Survey and Detailed survey. Various aspects were discussed, deliberated and thereafter, final decision was taken. The efforts made, procedure followed and exercise undertaken have been explained in great detail in the affidavit-in-reply filed on behalf of the Respondent Nos. 1 and 2. It provides complete answers to all the issues raised by the petitioners. The allegations regarding mala fides and non-application of mind etc did not have any place, whatsoever in this case. The petitioners' submissions regarding alternative route will have no basis at all as substantial work has been done by now. As per the details furnished before the court, 80% of the foundation and nearly 70% of erection of towers is completed. But for the present litigations, the entire project could have been completed as per the schedule.
20 The impugned order passed by the District Magistrate does not suffer from the vice of non-observance of principle of natural justice nor it is in any way contrary to the directions issued by this Court. The Respondent Nos.1 and 2 have approached the Respondent No.4 by way of an application. The petitioners have filed their objections which were duly considered before passing such order. Considering the relevant statutory provisions, requisite sanctions and approvals and the settled legal position, the Respondent No.4 has passed the just and proper order which does not call for any interference of this Court while exercising its writ jurisdiction under Articles 226 and 227 of the Constitution of India.
21 The decision of Kerala High Court in the case of Valsamma Thomas (supra) is of no assistance to the petitioners. In the present case, order passed by the District Magistrate is a speaking order. Objections received from the petitioners are duly considered. Findings arrived at by him can never be said to be perverse nor it is mala fide exercise of powers. The Kerala High Court, therefore, in the end, rightly observed that the Court would not be justified in substituting its own opinion as the Court has not got technical expertise and, therefore, it should be slow to interfere with such matter. The decisions relied upon by Mr. Joshi are directly on the point. This Court had an occasion to deal with this issue earlier in Special Civil Application No. 3067 of 2010 decided on 09.03.2010, wherein after considering earlier two judgments of this Court in Jiviben Motibhai Patel (supra) and Jayantikumar Bhagubhai Patel and Another (supra), it is held that in view of specific powers conferred on the respondents, the work undertaken by them is in conformity with the said authority and it cannot be said that they have undertaken the said work without taking into consideration all the pros and cons of the issues. The Andhra Pradesh and Jharkhand High Courts have also taken the same view as this Court in earlier matters as well as in the present matter, is taking.
22 in view of the above discussion, the Court does not find any substance or merits in any of these two petitions. Hence, both the petitions are accordingly dismissed. Notice discharged. Interim relief stands vacated. Request of extension of interim relief is also rejected. No order as to costs.
(K. A. PUJ, J.) pnnair Top