Punjab-Haryana High Court
Power Grid Corporation Of India vs Rajbir Singh And Others on 30 January, 2009
Author: Rajesh Bindal
Bench: Rajesh Bindal
C.R. No. 5152 of 2008 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 5152 of 2008 (O&M)
Date of decision: January 30, 2009
Power Grid Corporation of India
.. Petitioner
v.
Rajbir Singh and others
.. Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Mr. I. S. Sidhu, Advocate for the petitioner.
Mr. Sudhir Mittal, Advocate for respondents No. 1 and 2.
...
Rajesh Bindal J.
Challenge in the present petition is to the orders, passed by the learned courts below, whereby in an application filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure, the petitioner has been restrained from installing/ erecting tower bearing Nos. 64/6 and 64/7 in the land of the respondents- plaintiffs.
Briefly, the facts are that the respondents filed a suit for permanent and prohibitory injunction restraining the petitioner from installing tower Nos. 06408 and 06409 of 400 KW power transmission line being erected between Moga and Bhiwadi (Rajasthan), situated in Village Daulatpur, Tehsil and District Hisar and also restraining the petitioner-defendant from changing the site of shortest route. Along with the suit, an application for interim injunction was filed which was allowed by the trial Court. In appeal by the petitioner before the learned lower appellate court, the order of the trial court was upheld.
Learned counsel for the petitioner submitted that vide notification dated 27.11.2003 (Annexure P.1), the petitioner has been notified as a Central Transmission Utility in exercise of powers conferred under Section 38 of the Electricity Act, 2003 (for short, `the Electricity Act'). The petitioner is also a licensee to transmit the power throughout the country. Vide order dated C.R. No. 5152 of 2008 [2] 24.12.2003, in exercise of power conferred under Section 164 of the Electricity Act, the petitioner was authorised to exercise power under the provisions of the Indian Telegraph Act, 1885 (for short, `the Telegraph Act') for the purpose of erecting tower and laying transmission lines. The Government of India, vide communication dated 9.6.2006, approved for implementation of Northern Regional System Strengthening Scheme (NRSSS)-V, under which following transmission lines were to be erected:
"Transmission Lines * DILO of 400 KV S/C Hisar-Jaipur line at Bhiwani 80 km * 400 KV D/C Bhiwadi-Agra Line- 216 km * 400 KV D/C Bhiwadi-Moga Line- 370 km"
The project was financed by foreign currency and domestic loans plus internal resources. The disputed portion falls on 400 KV D/C Bhiwadi-Moga Line -370 kilometers in length. Notice of the proposed line was published in "Indian Express' on 23.4.2007 mentioning the villages through which the lines were to pass. Survey was conducted and the places were ear-marked where towers were to be installed.
Jaswant Singh Lamba son of Dharam Singh Lamba, owner of a portion of the land through which the transmission line was to pass through, raised objections with the plea that there were kinnow orchards in the land owned by him in which besides drip irrigation system, even rain gun had been installed to take care of the plants from the fly ash from a nearby Thermal Plant. Considering the fact that transmission lines were re-aligned, the revised scheme was approved by the competent authority on 19.7.2008. Respondent No. 1 sent an undated representation to the petitioner raising objection about change of alignment accepting the plea made by Jaswant Singh. The representation was received in the petitioner's office on 23.7.2008. On 23.7.2008, a civil suit was filed for seeking permanent and prohibitory injunction restraining the petitioner from installing electric tower bearing Nos. 06408 and 06409 in the land of respondent No. 1 which was alleged to be against the approved scheme. A further restrain was sought from changing the route of the transmission lines. The case sought to be made out in the plaint was that the route was sought to be changed on a representation made by Jaswant Singh, which was contrary to the factual position on the spot and the same was accepted by the petitioner in his connivance. The submission was that the project undertaken by the petitioner is of national importance. The suit, which was filed by respondent No. 1, was not maintainable C.R. No. 5152 of 2008 [3] as neither any prior notice under Section 80 CPC was issued nor any exemption was sought. Even otherwise, in terms of Section 145 of the Electricity Act, no injunction could be granted by any Court. It was further pleaded that there is no change in the number of towers passing through the land of respondent No. 1 which remained only two in number. It is only that a little bit route has been changed to avoid damage to kinnow orchard in the land of Jaswant Singh Lamba. Once respondents No.1 and 2 did not have any grouse for raising of two towers in their land, they cannot possibly have any grouse for changing the alignment as it is only right to use which is taken by the petitioner, otherwise the land beneath the transmission lines can very well be used by the owner thereof. They will get the compensation in terms of the lines passing through his land which is to be assessed in terms of the provisions of the Electricity Act and the Telegraph Act. He further submitted that though relief was claimed against Jaswant Singh Lamba in the suit, but purposely he was not impleaded as one of the defendants so that the process could be delayed. The change in the location of tower will not change the scheme as such. It is merely a little bit change in the implementation of the scheme regarding location of the tower considering the ground realities. Reliance was placed upon E. Venkatesan and others v. Chairman, Tamil Nadu Electricity Board, Madras and others, AIR 1997 Madras 64; Maharashtra State Electricity Board v. Janardhan Bhausaheb Desai and another, AIR 1998 Bombay 75; Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and others, (2003) 6 SCC 659 and Shanti Devi v. Haryana Vidyut Parsaran Nigam Limited, 2000(4) RCR (Civil) 584.
On the other hand, learned counsel for respondents No. 1 and 2 submitted that the rain gun, as was claimed to be existing on his orchard by Jaswant Singh Lamba, to get the location of the tower changed from his land is, in fact, not existing there. He further referred to the photographs placed on record to submit that even the photographs do not show that any rain gun, as is alleged by Jaswant Singh Lamba, has been installed. He further referred to Clause 2.2.1 of the bidding agreement of tower package, which provided that re-alignment of the line should be in the most economical manner.
Heard learned counsel for the parties and perused the record. It is a case where both the courts below have not appreciated the fact as to what disaster the orders passed by them was going to cause. The projects of national importance creating infrastructure are not to be interfered with in the manner, it has been done by the courts below. The courts have to be extra cautious in dealing with such cases. As is evident from the material placed on record, the dispute seems to be between respondents No. 1 & 2 and Jaswant Singh, who are C.R. No. 5152 of 2008 [4] neighbours. As per the original route of the transmission line, two towers bearing No. 64/8 and 64/9 were to pass through the land owned by respondent No. 1 and two towers bearing No. 64/6 and 64/7 were to pass through the land owned by Jaswant Singh Lamba. A perusal of the site plan (Annexure P.21) shows that there is no change as far as tower No. 64/9 to be installed in the land of respondent No. 1 is concerned. It is only the location of tower No. 64/8, which has been changed with the change in the route to avoid damage to kinnow orchard in the land of Jaswant Singh Lamba, where the lines have been shifted on one side of the land owned by him. In the objections filed by Jaswant Singh Lamba, the matter was examined by the competent authority and the change in the route was approved. All what was sought to be argued by learned counsel for respondents No. 1 and 2 was that with the change in route, the transmission lines will affect more area in the land owned by him, as compared to the land under original route, has no legs to stand, as there is absolute right with the petitioner to instal tower in exercise of powers under the Electricity Act read with Telegraph Act. Respondents No. 1 and 2 or any other land owner has right to receive compensation on account of user of the land for installation of towers and the transmission lines. The plea that change in route which led to increase in the length of transmission lines and will cost more to the petitioner is not the domain of respondents No. 1 and 2 to examine or to challenge in the court, as it is the job of the experts who have to consider every aspect of the matter. In the present case, considering the objections raised by Jaswant Singh Lamba and with a view to avoid loss to the kinnow orchards grown by him, route was changed a little bit. No such type of damage has been claimed by respondents No. 1 and 2 in their land.
As far as legal issues are concerned, though the suit was filed not only against the petitioner but also Secretary, Minister of Power, but neither any prior notice under Section 80 CPC was issued nor the prayer for exemption thereof was made in the suit. Not only this, Section 145 of the Electricity Act clearly mandates that no court shall grant any injunction in respect of any action taken or to be taken in pursuance of any power conferred by or under the Electricity Act. In the present case, the petitioner has been declared as a Central Transmission Utility and is carrying on the job of laying transmission lines for NRSSS-V Scheme under the Electricity Act. Accordingly, even in terms of the aforesaid provision, the process of installation of transmission lines could not be stalled. Further, in my opinion, no prejudice as such has been caused to respondents No. 1and 2 as with the change in location of one of the towers in the land owned by them, the number of towers in their land remains the same. Even if a little bit more line will pass C.R. No. 5152 of 2008 [5] through their land is inconsequential for the reason that they will get compensation therefor. It is only about 200 meters length of line, which has been increased in the land owned by respondents No. 1 and 2.
Even the contention raised by learned counsel for respondents No. 1 and 2 to the effect that the claim made by Jaswant Singh regarding installation of rain gun is factually incorrect is also prima facie found to be misconceived for the reason that in the order passed by the petitioner, as conveyed to respondent No. 1 vide letter dated 19.12.2008, in terms of the orders passed by this Court for consideration of the representation made by respondent No. 1, it has been specifically noticed that at the time of spot inspection, on request of Jaswant Singh Lamba, apart from drip irrigation system, provision for rain gun system was also found existing. It was further noticed in the communication that the certificate, which was sought to be produced by respondents No. 1 and 2 from Horticulture Development Officer, in which it was not mentioned that there exists any rain gun system, Shri S. K. Brar, Horticulture Development Officer stated that the subsequent certificate was issued on the request of respondent No. 1 only to the extent that there existed provision for drip irrigation system in the fields of Jaswant Singh Lamba, whereas in the earlier certificate, it is clearly mentioned that there is a provision for rain gun system also, as was issued to Jaswant Singh Lamba.
With this material on record, I do not find that respondents No. 1 and 2 had not been able to make out a prima facie case for interim injunction in their favour. The balance of convenience is in favour of the petitioner and in case the interim injunction is confirmed in favour of respondents No. 1 and 2, the petitioner will suffer irreparable loss and the same would certainly be against the larger public interest as all what respondents No.1 and 2 were entitled to is only the compensation for use of their land, which can very well be determined in terms of money. The effort was only to stall the implementation of a prestigious project for ulterior motive.
Accordingly, the impugned order passed by the learned court below is set aside. The application for interim injunction filed by respondents No. 1 and 2 is dismissed.
The revision petition is disposed of in the manner indicated above.
(Rajesh Bindal) Judge January 30, 2009 mk