Meghalaya High Court
Shri Tokiwaio Blah vs Meghalaya Energy Corporation Ltd. on 8 June, 2016
Equivalent citations: AIR 2017 MEGHALAYA 1, (2016) 165 ALLINDCAS 764 (MEG)
Author: S.R.Sen
Bench: S.R.Sen
1
THE HIGH COURT OF MEGHALAYA
WP(C). No. 364 of 2014
1. Shri. Tokiwaio Blah
S/o (Late) Mr. Clarence Laloo
of Mawlai Nongkwar (G.S.Road),
Shillong, East Khasi Hills District,
Meghalaya.
... Petitioner
-Versus-
1. Meghalaya Energy Corporation Ltd,
Represented by its Chairman,
Lumjingshai, Shillong.
2. Managing Director,
Meghalaya Energy Corporation Ltd,
Lumjingshai, Shillong.
3. The State of Meghalaya
Represented by Commissioner &
Secretary Power Department,
Shillong.
4. Deputy Commissioner,
East Khasi Hills District, Shillong,
Meghalaya.
5. The Assistant Executive Engineer,
Shillong Electrical Sub-Division-II,
Meghalaya Energy Corporation Ltd.
....Respondents
BEFORE
THE HON'BLE MR JUSTICE S.R.SEN
For the petitioner : Mr. V.G.K.Kynta, Sr. Adv
Ms. V.Mawlein, Adv.
For the respondents : Mr. N.Mozika, Adv.
Ms. S.Challam, Adv.
Mr. K.P.Bhattacharjee, GA.
Date of hearing : 08.06.2016
Date of Judgment : 08.06.2016
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JUDGMENT AND ORDER (ORAL)
Heard Mr. V.G.K.Kynta, learned Sr. counsel, assisted by Ms. V.Mawlein, learned counsel for and on behalf of the petitioner, Mr. N.Mozika, learned counsel for the respondents MeECL and also Mr. K.P.Bhattacharjee, learned GA for the State respondents.
2. The instant writ petition is directed against the erection of high tension power line in the land of the petitioner. The petitioner's case in a nut shell is that:
"The Respondent MeECL authorities constructed high tension lines and towers on the plot of land of the Petitioner without any consent or semblance of following the procedures under law. They have been refusing to remove the said high tension transmission line and tower from the plot of land of the Petitioner thereby putting the life and property of the Petitioner and other residents on the said plot of land to continuous danger and zeopardy.
Hence this petition praying for appropriate relief."
3. Mr. V.G.K.Kynta, learned Sr. counsel submits that the petitioner is residing in his ancentral property and the said property was owned and possessed by the parents and grand parents of the petitioner since 1953 and at that point of time no high tension wire or tower was present there. Learned Sr. counsel also contended that due to the presence of high tension wires and tower, the life and property of the petitioner is at stake and in danger. Though many representations have been moved but the 3 respondents authorities fail to take any preventive measure to save the life and property of the petitioner and the neighbourhood. Learned Sr. counsel also contended that it is a violation of the fundamental rights of the petitioner guaranteed under Article 14, 19 and 21 of the Constitution of India read with the provisions of Article 300A of the Constitution of India and violation of the principles of natural justice, equity and administrative fair play. Learned Sr. counsel had also drawn my attention to the inquiry report conducted by Mr. H.S.Thangkhiew, Sr. Advocate, High Court of Meghalaya, Shillong and Mr. Ajoy Patir, General Manager, Power Grid Corporation of India Ltd, NERTS, Shillong as per the direction given by this Court vide order dated 10-03-2016. The Inquiry Report pointed out that below the high tension wires adjacent to the house of the petitioner, there is a petrol pump, an LPG Gas Godown and many other small houses. Learned Sr. counsel further submits that unless these high tension wires and tower are not removed, anything might happen at any point of time so necessary direction may be passed.
5. On the other hand, Mr. N.Mozika, learned counsel appearing on behalf of the respondents MeECL submits that erection of the tower and laying of the high tension wires is for public interest and that when the petitioner purchased the land, he should have noticed that the high tension wires were already present in the said land and MeECL or erstwhile ASEB might have obtained a No Objection Certificate from the petitioner. As such, the respondent MeECL is no way responsible for illegal erection of tower and laying of high tension wires. In support of 4 his submission, learned counsel for the respondents MeECL relied on para 23 and 24 of a decision of the Supreme Court in the case of "Orissa Power Transmission Corporation Limited and Others vrs Asian School of Business Management Trust and Others reported in (2013) 8 SCC, 738." Mr. N.Mozika, also relied on Regulation 63 of the Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010.
6. Mr. K.P.Bhattacharjee, learned GA appeared for and on behalf of the State and decline to place any submission and endorsed the submission of Mr.N.Mozika, learned counsel for the respondents MeECL.
7. After hearing the submissions advanced by the learned counsels for the parties and as discussed above, two crux issues came out before this Court.
(i) Whether the petitioner or his fore-fathers had any knowledge about the presence of the tower and high tension wires running through their compound at the time of purchase?
(ii) Whether there is any alternative measure which can be taken by the respondents to remove the tower and high tension wires from the land of the petitioner?
It is an undisputed fact from the submission of the learned counsel for the parties and from the record before me that the land belongs to the petitioner which he inherited from his late father and he has also admitted that his late father possessed and owned the land since 1953. On that point, the respondents 5 did not contradict, so the position remains the same that the petitioner and his fore-fathers possessed the land since 1953. It is also clear that electrical tower and high tension wires were laid in the year 1960 and it clearly shows that when the petitioner's fore- fathers purchased the land, the land was free from high tension wires as well as tower and there remain no dispute.
8. Learned counsel for the respondents MeECL relied in para 23 and 24 of a judgment of the Supreme Court in "Orissa Power Transmission Corporation Limited and Others vrs Asian School of Business Management Trust and Others reported in (2013) 8 SCC 738" which is reproduced below:
"23. Unfortunately, the Division Bench of the High Court completely overlooked the fact that Respondent 1 had stepped into the shoes of a person who had no grievance against the scheme framed by the Board or execution thereof by Appellant 1 and proceeded to decide the matter as if execution of the scheme has commenced after construction of buildings by Respondent 1. This is the first fatal flaw in the approach adopted by the Division Bench of the High Court.
24. The exercise undertaken by the High Court for ascertaining the availability of alternative route through which the transmission line could be routed was totally unwarranted and half-waked consideration of the affidavits filed on behalf of the appellants has resulted in miscarriage of justice. As noted above, the scheme was notified on 30-5-1991 and was modified on 30-1-1996. During this period, Respondent 1 was not in picture. Admittedly, the Trust had purchased the land after more than 14 years and 6 months of initial publication of the scheme. Therefore, neither the Trust nor Respondent 1 had the locus to seek a mandamus for realignment of the route and the Division Bench of the High Court committed serious error by ordaining Appellant 1 to shift the transmission towers from their present site completely ignoring the fact that almost 150 towers had already been erected by Appellant 1 by spending more than rupees fourteen crores."6
9. On perusal of the said judgment, it appears that the facts and circumstances of the case in the present writ petition is quite different from the case referred above. What I understand is that when the person purchased the land, the high tension wires as well as the tower were already there, which is not the case in this instant writ petition. Hence, the judgment referred by the learned counsel for the respondents MeECL is not fitting or bearing any weight in the present writ petition. Secondly, though the learned counsel for the respondents MeECL submits that the then ASEB might have obtained No Objection Certificate to erect the tower and to lay the high tension wires through the premises of the petitioner but could not place any record before the Court. Therefore, it can be safely assumed that there was no consent from the petitioner or his fore-fathers to lay the high tension wires as well as the tower in the premises of the petitioner.
10. In this instant case, it is also clear that in the surrounding area adjacent to the house of the petitioner through which the high tension wires passed there is a petrol pump, an LPG Gas Godown which is highly inflammable and besides that there are so many small houses.
11. We must remember it is a primary and sacred duty of the Government as well as any authority even if it is a Corporation to protect the life and property of a citizen. The respondents authority should not just think of their own benefits and their own convenience. Efforts should be made for safety and convenience for each and every citizen. From our past experience, 7 we have seen that there has been so many instances of snapping of high tension wires which have caused deaths of innocent life. Here I understand the plight of the petitioner when a huge tower as well as high tension wires are passing through his premises, most of the time he must be living with fear which definitely causes tension in his mind.
12. As per the report submitted with a sketch map, I understand that the house of the petitioner is almost turned into a mini power house and I am sure nobody can stay in such situation peacefully and safely. Therefore, the only alternative is that the tower as well as the high tension wires needs to be removed from the premises of the petitioner. From the report of the Committee dated 29-03-2016 at sub-para 4 it is clearly mentioned that there is an alternative. The suggestion of the Committee is reproduced herein below:
"The committee examined the option of entirely bypassing the inhabited areas. From the satellite image at Annexure 5, it is seen that the area to the west and north-west of Mawlai substation is sparsely inhabited and prima facie it appears that this route may be feasible. However, it was informed by MeECL that these areas are Reserve Forest land. Construction of transmission lines within forest areas requires clearance from the Forest and Environment Department. Normally, such clearances are given only if the work is in the public interest and if no other alternative route exists. There is no certainty that clearance from the Forest and Environment Department can be obtained. The committee has also not verified whether other portions of the alternative route would be free from objections from affected landowners. Since the city limits are expanding into these areas it is likely that there would be strong resistance to aligning any new lines in these areas. Feasibility of this option is therefore dependent on clearance/no objection being obtained from 8 the Forest and Environment Department & other prospectively affected land owners."
13. On perusal of the suggestion given by the Committee it appears that the tower as well as the high tension wires can be diverted through the reserve forest land for which requisite permission is required from the Forest Department. The respondents MeECL is hereby directed to divert the tower as well as the high tension wires through the reserve forest and to remove the same from the premises of the petitioner, within 4(four) months from the date of receipt of the certified copy of this judgment. Another alternative measure which the MeECL can take is to place the high tension wires underground while taking all security measure and precaution.
14. With this direction, the instant petition is allowed and stands disposed of.
JUDGE S.Rynjah