Gujarat High Court
Harishchandrasinh Amarsinh Raol vs State Of Gujarat on 16 December, 2020
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
C/SCA/12713/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12713 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the NO
judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as to NO
the interpretation of the Constitution of India or any order made
thereunder ?
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HARISHCHANDRASINH AMARSINH RAOL
Versus
STATE OF GUJARAT
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Appearance:
MS VIDITA D JAYSWAL(6730) for the Petitioner(s) No.
1,10,11,2,3,4,5,6,7,8,9
for the Respondent(s) No. 3
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
MR SP HASURKAR(345) for the Respondent(s) No. 2
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CORAM: HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 16/12/2020
ORAL JUDGMENT
[1.0.] By way of this petition, the petitioners have challenged the order dated 20.02.2020 passed by the Collector and District Magistrate, Gandhinagar, on an Application made by the Executive Engineer of Gujarat Energy Transmission Corporation Limited (hereinafter referred to as 'GETCO') under Section 16 of the Indian Telegraph Act, 1885 (hereinafter referred to as 'the Telegraph Act'), Page 1 of 16 Downloaded on : Sat Aug 21 12:22:04 IST 2021 C/SCA/12713/2020 JUDGMENT seeking permission from the District Magistrate as the petitioners have obstructed laying down of electric lines from the field of the petitioners. At the same time, petitioners have challenged the Notification dated 28.09.2017 conferring powers of Telegraphic Authority under 'the Telegraph Act', to 'GETCO' and its Officers for laying Electricity lines and erecting Towers for supply and transmission of electricity in the State of Gujarat, whereby the 'GETCO' has decided to install / lay electricity lines / towers for transmission of electricity in the public interest so as to supply electricity with required load to the surrounding areas and to that effect, public notice came to be issued that they intend to erect 66 KV double circuit Pethapur LILO from existing Manekpur-Unava line with ACSR panther conductor on panther tower 6.86 KM & establishment of 66 KV Pethapur substation. The area of work and the estimated capital cost has been mentioned in the said public notice. By the said notice, the affected areas shown to be Pethapur, Piplaj, Unava. [2.0.] Ms. Vidita Jayswal, learned advocate for the petitioners submitted that the petitioners are marginal farmers and dependent on small piece of land for their livelihood and if the line as proposed is permitted to be laid, it would adversely affect the crops cultivated on the land and also the fertility of their land. It is further submitted that there is already an overhead high tension electric line of 400 KV Page 2 of 16 Downloaded on : Sat Aug 21 12:22:04 IST 2021 C/SCA/12713/2020 JUDGMENT passing through the land of the petitioner No.10 having survey No.933, situated at Village - Piplaj, therefore, it is submitted that laying down one more high tension electric line and erection of tower on the same agricultural land would make much of the land useless and lead to depleting the value of the land to a great extent. It is further submitted that the respondent authorities have erred in not considering the other alternative and viable routes which could possibly be better options in terms of shortest route. To substantiate aforesaid arguments, she has relied on a communication dated 19.02.2020, possibly furnishing the information pursuant to a information sought for under the Right to Information Act to the first petitioner. To a reply to information sought for at serial No.1 when the authority has informed that there was no survey conducted for laying down line determining route from Manekpur to Delvad alongside the river and from a government gaucher land, therefore, it is submitted that there exists an alternative way from where the electric line can be installed. To an information supplied at point No.9 in the aforesaid communication that proposed route from Manekpur-Unava line upto Pethapur substation is technically most convenient route, and therefore, other alternative route is not thought of. The said answer is made a base to submit that they have not thought of any other alternative routes for laying down any electric line. It is further Page 3 of 16 Downloaded on : Sat Aug 21 12:22:04 IST 2021 C/SCA/12713/2020 JUDGMENT submitted that this Court can, under Article 226 of the Constitution of India, direct the authorities to perform the basic survey before finalizing the route as per manual. It is further submitted that on admitted facts the authorities had not undertaken any survey to atleast find out best possible routes, and therefore, the authority is acting arbitrarily in laying down the line as aforesaid. [3.0.] It is further submitted that the District Magistrate while passing an order under Section 16 of 'the Telegraph Act' taken into consideration only the say of the respondent No.2 that the route suggested by the petitioners is not a viable but has failed to appreciate the fact that no evidence to support the contention has been produced on record by the respondent No.2 authority. It is further submitted that the impugned order passed by the District Magistrate reflects non application of mind and is contrary to the facts of the present case, when it is observed in the order that much of the work of the transmission line is over. It is further submitted that the District Magistrate has not at all dealt with the objection of the petitioners, and therefore, the impugned order is bad in law. It is further submitted that the judgments relied on by the learned advocate for respondents are not applicable to the present case as in those cases laying down transmission line had already started, therefore, may be not possible for shifting or changing the route. It is Page 4 of 16 Downloaded on : Sat Aug 21 12:22:04 IST 2021 C/SCA/12713/2020 JUDGMENT further submitted that since in the present case work of laying down of transmission line has not been initiated, changing the route to a better and technically feasible one would not lead to any loss to the respondents authorities. It is further submitted that there exists another substation at Randheja from where authority could have laid the transmission line which is hardly at a distant at 4 k.m. from Randheja substation to Pethapur substation and thereby a less expensive. Therefore, it is submitted that the feasibility and viability of the said route is not even explored by the respondent No.2 authority. It is further submitted that alternate route was available for laying down high tension electrical line that could pass through the Government wasteland and gaucher land, and therefore, the proposed line should not pass through the lands of the petitioners. [4.0.] Relying on one Annexure-RI to the Rejoinder Affidavit which is similar notice informing the public at large that the respondent authority has determined to lay down the electric line / poles under a different schemes and in different area, it is submitted that in some of the areas which are nearby to the land of the petitioners or in the district itself they have proposed an underground laying down of a electric line. Therefore, it is submitted that it could have been better options if instead of overhead line at the present route, underground electric line is laid. It is further submitted that it is Page 5 of 16 Downloaded on : Sat Aug 21 12:22:04 IST 2021 C/SCA/12713/2020 JUDGMENT the responsibility and obligation of the respondent No.2 to execute and survey the alternate routes and thereby prepare a technical report and then after assessing and considering all the aspects and the principle of minimum damage rest on one alternative. According to submissions of Ms. Vidita Jayswal, learned advocate for the petitioners, in the present case it has not been considered at all and the contention of the respondent authority that the present route is best feasible option is baseless which is evident.
[5.0.] Relying on a decision in the case of Jaisinh Parshottambhai Patel Versus Essar Power Transmission
Company Limited rendered in Letters Patent Appeal No.1104 of 2013 and other cognate matters, more particularly para-9 thereof, it is submitted that under Article 226 of the Constitution of India, the Court can go into the aspects of alternate route for the transmission line. Therefore, it is submitted that this petition may be allowed. [6.0.] As against that, Mr. S.P.Hasurkar, learned advocate for respondent No.2, referring to the affidavit in reply, he has submitted that the route suggested by the petitioners relying on a map at page- 39 is longer route than the route approved by the competent authority. It is further submitted that the approved route prescribes reaching destination covering by 6.86 k.m. and route of the Page 6 of 16 Downloaded on : Sat Aug 21 12:22:04 IST 2021 C/SCA/12713/2020 JUDGMENT petitioners is approximately 10 and odd k.m. Not only that, in the said route there is an uneven kharaba land on the Sabarmati Riverbank, which may cause expenditure beyond even budgetary provisions already made and approved. Relying on a decision of the Division Bench of this Court in Letters Patent Appeal No.882 of 2011 in the case of Himmatbhai Vallabhbhai Patel Versus Chief Engineer (Project) Gujarat Energy Transmission Corporation Limited, more particularly para-49 thereof, submitted that same deals with power of the respondent No.2 - authority in laying down pipeline, that too, in public interest considering all relevant provisions under the Electricity Act as also the Telegraph Act. He has further submitted that suitability of the land sought to be acquired or used for any public purpose is not to be adjudged by the Court in exercise of power under Article 226 of the Constitution of India. It is further submitted that advisedly the legislature has left to the discretion of the authority for designing, planning and executing the planing of the laying down the line to the Telegraph authority as unobstructed powers. Where legislature apprehended breach of law and order, powers are conferred upon executive to remedy the situation and compensation and quantum disputes are left in safe hand of judicial officer of the rank of the District Judge. In the affidavit in reply further reliance is placed in a decision in the case of Power Grid Corporation of India Page 7 of 16 Downloaded on : Sat Aug 21 12:22:04 IST 2021 C/SCA/12713/2020 JUDGMENT Limited Vs. Century Textiles & Industries Limited reported in 2017 (5) SCC 143, and para Nos.21, 22 and 23 thereof are incorporated. In the affidavit in reply, it is averred that the line in question is approved by the Government of Gujarat under Section 68 of the Electricity Act, 2003 and the public notice thereof is also issued which is referred to and relied on by the learned advocate for the petitioners.
[7.0.] Relying on a decision of this Court in the case of Gujarat State Energy Transmission Corporation Limited Versus Ratilal Maganji Brahmbhatt rendered in Letters Patent Appeal No.534 of 2020, more particularly para-58 thereof, it is submitted that all possible contentions raised are answered in the said decision. It is further submitted that all the contentions raised by the learned advocate for the petitioners are considered by the Division Bench of this Court in the aforesaid appeal and it is answered in the negative. Therefore, it is submitted that this petition may be rejected. [8.0.] Since the provisions of 'the Telegraph Act' as also 'the Electricity Act' and decisions rendered thereon by this Court as also the Hon'ble Supreme Court of India are very clear on the point, the provisions made therein are not referred to in detail in this judgment. Suffice it to say that the order under challenge is an order passed Page 8 of 16 Downloaded on : Sat Aug 21 12:22:04 IST 2021 C/SCA/12713/2020 JUDGMENT under Section 16 of 'the Telegraph Act' which provides the remedy to the Telegraph authority while placing or maintaining any telegraphic line or post in case of obstruction raised by any person. [9.0.] Section 16 of 'the Telegraph Act' empowers the District Magistrate to order that the Telegraph authority i.e. GETCO in the present case shall be permitted to exercise of powers mentioned in Section 10(d) of 'the Telegraph Act' and any obstruction / resistance thereof by any person having control over the property shall be deemed to have committed an offence under Section 188 of the Indian Penal Code. Thus, it is clear that while exercising the powers under Section 16 of 'the Telegraph Act', the District Magistrate is empowered to pass an order permitting the telegraph authority to carryout the work but while execution thereof they shall do as little damage as possible. At any rate, the District Magistrate is not empowered to consider any alternate route that might be suggested by the petitioners or the person obstructing to the laying down of the electric line / poles. The concept of little damage is to be observed while implementation of the laying down of electric line / poles. Therefore, it is clear that under Section 16 of 'the Telegraph Act' the District Magistrate is not supposed to look into the suggestions of alternative route than that the route determined and approved technically and economically by the person who is to execute the Page 9 of 16 Downloaded on : Sat Aug 21 12:22:04 IST 2021 C/SCA/12713/2020 JUDGMENT same. As such, no provision in any Act concerning laying down of electric line either under 'the Telegraph Act' or under the Electricity Act provides anyone to suggest route from where it is to be placed. The provisions under the Act left it to the sound discretion of authority to determine technically feasible and economically viable route to be determined, that too, in public interest. This laying down of electric line / poles are for the benefit of the general public at large to provide them not only the electricity but with appropriate voltage. To meet with the same, the authority is supposed to lay down different lines at different times, carrying different voltage.
[10.0.] Though Notification dated 28.9.2017 qua laying down of electric line / erection of 66 kv D/c Pethapur LILO from existing Manekpur-Unava line with ACSR panther conductor on panther tower 6.86 k.m. & establishment of 66 kv Pethapur substation, is challenged, the learned advocate for the petitioners is unable to show that how and in what manner the said Notification is interfering with any fundamental or legal right of the petitioners to challenge the same. However, it is not the Notification but the public notice issued making it known to the public at large for implementation of various project of laying down of electricity lines / tower for transmission of electricity in the different areas, as GETCO is conferred powers under Section 164 of the Electricity Act, 2003 by the Appropriate Page 10 of 16 Downloaded on : Sat Aug 21 12:22:04 IST 2021 C/SCA/12713/2020 JUDGMENT Government.
[11.0.] The Division Bench of this Court in the case of Gujarat State Energy Transmission Corporation Limited (Supra), has relied on a decision of Bombay High Court in the case of Vivek Brajendra Singh Vs. State Government of Maharashtra reported in 2012 (4) BCR 116, rejected the contention of the petitioners, after detailed survey of the provisions made in 'the Telegraph Act' as also Electricity Act, suggesting any alternative route from where the laying down of electricity line or poles be conducted. This Court in the aforesaid decision has in para 58.15 further held that once the technically feasibility of the project has been approved by the appropriate Government by issuing order under Section 164 of the Electricity Act, no man, owner or person interested can seek for shifting or realignment of the route on the premises that the District Collector / District Magistrate has the power to do so. The District Collector has no power to alter any route or alignment except to remove the difficulties faced by the licensee or the person or the authorities pursuant to the order issued under Section 164 of the Electricity Act. Here, in the present case, respondent No.2 authority has already issued orders in its favour under Section 164 of the Electricity Act, which has been mentioned in the very public notice dated 28.09.2017. Therefore, the argument that laying of the high Page 11 of 16 Downloaded on : Sat Aug 21 12:22:04 IST 2021 C/SCA/12713/2020 JUDGMENT tension line through the land of the petitioners will adversely affect the crops cultivated and also the fertility of the land leading to depreciation of the value of the land cannot be countenanced. So far as damage caused to the owner / occupier of the land, they are compensated appropriately and any person aggrieved by the compensation offered can also approach the District Judge as provided under 'the Telegraph Act', and therefore, the said contention has no merit in it. By laying down any electric line or poles, it will in no terms affect the fertility or even the depreciation in value of the land in absence of any material on record. Even otherwise, once the provisions made in the Electricity Act and 'the Telegraph Act' empowering the authorities to do the same, there remains no considerable argument to be dealt with, that too, in a jurisdiction under Article 226 of the Constitution of India.
[12.0.] Another contention that there exists 400 KV overhead high tension electric line passing through the land of petitioner No.10, laying down one more high tension electric line and erection of tower on the same land would render much of the land useless, has no legs to stand. For whatever damage caused while laying down electricity line, the owner / occupier is to be compensated, and therefore, those are not relevant consideration that to be determined by the District Magistrate under Section 16 of 'the Telegraph Act'. Since the route Page 12 of 16 Downloaded on : Sat Aug 21 12:22:04 IST 2021 C/SCA/12713/2020 JUDGMENT determined and estimated cost approved by the appropriate Government, any suggestion of any other alternative route by anyone is not permissible. Technical feasibility or economical viability of project once approved cannot be gone into by the High Court under Article 226 of the Constitution of India, and therefore, argument that there are better options in terms of shortest possible route than the one on which it is being carried on requires outright rejection. [13.0.] As submitted by the learned advocate for respondent No.2, installation of electric lines or poles are to be in a straight line as far as possible avoiding diversion or curves to save the loss of energy therefrom. At any rate, it is to be better determined by the authority who is expert in the field and no suggestion by the petitioners or even by the Court in respect thereof is advisable. By further affidavit in reply, affirmed on 12th December, 2020, the respondents authorities have relied on one more decision in the case of Power Grid Corporation of India Limited Vs. Century Textiles & Industries Limited (Supra), more particularly para-24, which is referred in the further affidavit in reply to contend that the transmission lines had to be in a straight line to the extent possible for eliminating loss of transmission. It is also explained that electricity transmission is usually laid or crossed over agricultural land where minimum extent of land gets utilized for erecting towers and where Page 13 of 16 Downloaded on : Sat Aug 21 12:22:04 IST 2021 C/SCA/12713/2020 JUDGMENT agricultural activities are not prejudiced / obstructed in any manner. In the aforesaid further affidavit, it is mentioned that for determining route of transmission line neither the State Government nor the Central Government have framed any rules in this behalf. However, it is stated that any transmission line has to be laid keeping in view the Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010. Therefore, the contention raised by the learned advocate for the petitioners that there is a damage to the fertility of the land or depreciation of the value of the land is not correct in view of the aforesaid observation by the Supreme Court. [14.0.] The another argument advanced by the learned advocate for the petitioners that the authority had not undergone any survey atleast to find the best possible route, and therefore, there cannot be arbitrary use of power by the authority without application of mind and proper survey of feasibility requires outright rejection. While the route is determined technical and feasible viability thereof is undertaken and thereafter approved by the appropriate Government as per said Norms and the provisions under the Act / Rules and the decided cases, the route is determined by the technical staff of the authority and thereafter approved by the appropriate Government. The said route is determined only after preliminary survey of shortest ever and straight route possible. If no Page 14 of 16 Downloaded on : Sat Aug 21 12:22:04 IST 2021 C/SCA/12713/2020 JUDGMENT survey is undertaken for laying down any route, the appropriate Government would not approve the same, and therefore, there is no merit in the contention that no survey appears to have been made. If at all, if there is no survey prior to determining the route, the petitioners would not have objected to the same nor could have asked for any details may be under Right to Information Act from the authorities. It is only when it comes to the execution of the work the petitioners appear to have rushed to the Court though order is passed on 28.02.2020 by the District Magistrate. Therefore, the aforesaid argument needs to be rejected.
[15.0.] The another argument that the order passed by the District Magistrate is without application of mind when it states in the order that majority of the wok is already over, and therefore, when laying down poles in the disputed land is left out, it is not possible to change the route either technically or economically. However, the fact remains that other existing infrastructure is available and that is to be joined through overhead line in a stretch of 6.8 k.m. At any rate, since at this stage change in the route is not possible which is determined long back by the appropriate Government in the year 2017 approving estimated cost thereon, not only the change of route is technically possible, it may go beyond even estimated cost at the relevant time, and therefore, on that ground also this petition is not Page 15 of 16 Downloaded on : Sat Aug 21 12:22:04 IST 2021 C/SCA/12713/2020 JUDGMENT required to be entertained.
[16.0.] The next contention of the petitioners that the District Magistrate has not at all dealt with or overlooked the objection by the petitioners while determining the application. However, considering Section 16 of 'the Telegraph Act' , the District Magistrate is supposed to see that the work being carried out by the authority is not resisted or obstructed, and therefore, the respondents authorities would be permitted to exercise the powers of laying down the line as per determined route causing as little as possible damage and paying compensation thereof. Therefore, he has to ensure payment of compensation for the damage caused while execution of the work. However, if there is a dispute with regard to compensation, the aggrieved party may approach the District Judge under Section 16 of 'the Telegraph Act'. Therefore, while determining the application under Section 16 of 'the Telegraph Act', the District Magistrate has to ascertain the payment of compensation for the damage caused and nothing more. At the same time, he has to see that work is not obstructed by owner / occupier and if obstructed it will be an offence under Section 188 of IPC. Therefore, I see no reason to entertain this petition and it is rejected.
(UMESH A. TRIVEDI, J) PATEL ILA KANTIBHAI / LALJI DESAI Page 16 of 16 Downloaded on : Sat Aug 21 12:22:04 IST 2021